U.S. Panel Upholds Prop. 209

A panel of federal appeals judges unanimously decided Tuesday that Proposition 209 is constitutional and can be enforced to eliminate government affirmative action, ruling that a lower court judge erred when he blocked the initiative after the November election.

The decision by the U.S. 9th Circuit Court of Appeals normally would allow the anti-affirmative action ballot measure to take effect in 21 days, but an anticipated appeal may delay its enforcement for at least several more weeks. Opponents of the measure planned to ask the full 9th Circuit for a broader review.

Legal analysts were divided over whether the court would agree to such a review, but some predicted that the proposition’s opponents would have an uphill battle overturning Tuesday’s ruling. The case is expected to be appealed eventually to the U.S. Supreme Court.

In a strongly worded opinion, the conservative three-member appeals panel determined that “there is simply no doubt that Proposition 209 is constitutional,” setting the stage for an end to affirmative action for women and minorities in college admissions and government contracting and employment.

The panel upheld the ballot measure and rebuked U.S. District Judge Thelton Henderson, a liberal former civil rights lawyer who handed down a preliminary injunction last year blocking the measure on constitutional grounds pending a trial.

The measure was passed by 54% of California voters.

“A system which permits one judge to block with the stroke of a pen what 4,736,180 residents voted to enact as law tests the integrity of our constitutional democracy,” wrote 9th Circuit Judge Diarmuid F. O’Scannlain, the author of the ruling.

The panel held that Henderson had wrongly interpreted U.S. Supreme Court precedents, a finding that is legally necessary to overturn a trial judge’s injunction.

But the ruling was so broad that it appeared to make any trial before Henderson irrelevant, leaving the question of the measure’s constitutionality to be decided on appeals of Henderson’s injunction alone.

Supporters of the proposition were jubilant.

“With this ruling, California comes one step closer to assuring the kind of society which will afford genuine equality and access to opportunity to all of its citizens,” Gov. Pete Wilson said.

Wilson’s staff said the measure could not take effect all at once but would require further judicial, legislative and regulatory actions. In some cases, private citizens might need to file legal challenges to dismantle certain programs even if Tuesday’s ruling stands, according to one of the governor’s legal advisors.

Calling the ruling “an occasion for dancing in the streets,” Proposition 209 sponsor Manuel Klausner said, “Some of us are going to be drinking some champagne tonight!”

The American Civil Liberties Union, which has been representing the measure’s opponents, will ask the 9th Circuit for “en banc” review, a request that a majority of the 19 eligible judges on the circuit examine Tuesday’s ruling and decide whether it should stand.

Mark Rosenbaum, legal director of the ACLU of Southern California, said he was confident that the court would grant a full review.

The panel’s ruling “does not just move minorities and women to the back of the bus,” Rosenbaum said, “it boots them off all together.”

He said the ruling was “at dramatic variance with decades of mainstream Supreme Court decisions that guarantee women and minorities equal participation in the political process and equal opportunities.”

Without affirmative action, the number of blacks and Latinos admitted to UC Berkeley Law School will plummet from 80 in a class of 300 this year to eight in the fall, he said. The UC Board of Regents voted to abolish affirmative action before Proposition 209’s passage.

Legal analysts said Tuesday’s ruling will now move the dispute more directly to the U.S. Supreme Court. But the high court might decline to review a ruling upholding Proposition 209. Previous decisions by the court suggest that a majority of justices frown upon affirmative action, and the high court agrees to review only a minute fraction of appeals.

“Ultimately the legal future of 209 is still uncertain and probably will depend on what the U.S. Supreme Court eventually decides,” said USC law professor Erwin Chemerinsky. “But I would expect the state would act to implement it as soon as possible.”

Clark Kelso, a law professor at McGeorge School of Law in Sacramento, said he doubted that the ACLU would succeed in getting more members of the 9th Circuit to review the ruling because the legal questions at stake can only be decided by the U.S. Supreme Court.

But Chemerinsky said the other circuit judges might want to review the ruling even if they agree with it.

“I think there is no way to know,” Chemerinsky said. “There may be judges who are uncertain and think the whole 9th Circuit should participate. There may be judges who agree with the result but would want to affirm it en banc to send a message up to the U.S. Supreme Court.”

Chemerinsky said he was startled by the breadth of Tuesday’s ruling and called it “a slap in the face of Judge Henderson.”

“It reflects the ideological differences between this panel of the 9th Circuit and Judge Henderson,” he said. “This is a very conservative panel, and I think it is reflected in the tone of their opinion.”

Two of the panel’s members, O’Scannlain and Judge Edward Leavy, were appointed by President Ronald Reagan. Judge Andrew J. Kleinfeld, the third member, was appointed by President George Bush. Kleinfeld is considered one of the most conservative members of the 9th Circuit.

If the injunction had been upheld, a trial would have been held before Henderson on the measure’s constitutionality. But given the panel’s staunch insistence that the proposition is constitutional, “it is hard for me to see that there would be any point to a trial,” Chemerinsky said.

California Atty. Gen. Dan Lungren praised the decision as a “tremendous victory for a sensible reading of the Constitution” and lauded O’Scannlain for affirming “the sovereignty of the people’s right to create law at the ballot box.”

“Even though we expect this matter ultimately to be decided by the U.S. Supreme Court, today’s ruling should lead to implementation of Proposition 209,” Lungren said.

The ACLU had argued that Proposition 209 was unconstitutional because it unfairly prevents women and minorities from seeking government remedies from discrimination while allowing all other groups, including the elderly and disabled, such access. The ACLU also contended that the initiative illegally preempts federal civil rights policy.

Henderson, the first African American to serve as chief judge of the District Court in San Francisco, handed down the injunction after finding that the ACLU demonstrated a “probability of success” in its claim that the initiative violated equal protection guarantees and a “likelihood of success” in the argument that it illegally interfered with federal civil rights policy.

Henderson relied in part on a 1982 Supreme Court ruling that struck down a Washington state initiative barring voluntary race-based school busing.

But the 9th Circuit panel interpreted that precedent and other Supreme Court decisions differently.

“Impediments to preferential treatment do not deny equal protection,” O’Scannlain wrote. “While the Constitution protects against obstructions to equal treatment, it erects obstructions to preferential treatment by its own terms.”

The ruling also was liberally sprinkled with references to the rights of voters to make laws. “If the federal courts were to decide what the interests of the people are in the first place,” O’Scannlain wrote, “judicial power would trump self-government as the general rule of our constitutional democracy.”

Ward Connerly, a UC regent and principal supporter of Proposition 209, issued a statement declaring that Henderson had been perverse in his decisions last year and calling on Californians to “focus on ways of providing access for all our children to an education that prepares them for the rigors of competitive society.”

Larry P. Arnn, a major backer of Proposition 209 and president of the Claremont Institute, a conservative think tank, said Tuesday’s decision will unleash a spate of similar laws nationwide.

“It removes the last remaining obstacle for citizens to undertake similar measures in every state to restore equal protection under the law,” he said.

Times staff writers Kenneth R. Weiss and John Gonzales in Los Angeles contributed to this story.