U.S. Appeals Court Reaffirms Support of Prop. 209

A statewide ban on government affirmative action programs for women and minorities moved closer to enactment Thursday when a federal appeals court reaffirmed its earlier ruling that Proposition 209 is constitutional.

The U.S. 9th Circuit Court of Appeals rejected a request by Proposition 209 foes that it reconsider an April decision by one of its panels that upheld the historic ballot measure.

Approved by California voters last fall, the initiative has been blocked ever since by legal appeals.

Opponents vowed to continue their fight, saying they will appeal the case to the U.S. Supreme Court and in the meantime seek a continuing order blocking the referendum from becoming law.

If they don’t obtain such an injunction, the affirmative action ban could take effect as early as next week, setting in motion the abolition of a variety of government-sponsored programs that favor women and minorities in public education, employment and contracting.

Indeed, supporters were confident that the delay in the proposition’s implementation is nearly over.

“Today is a day of profound importance to the state of California,” said Ward Connerly, who led last year’s campaign for the initiative and is promoting similar efforts in states across the country. “A death sentence has been handed down to preferences and quotas. For all intents and purposes, Proposition 209 is the law of the land in California.”

Washington attorney Michael Carvin, who represents Proposition 209’s supporters, said he could see no reason why the Supreme Court would take the case.

“The opponents don’t have a legal leg to stand on, and every judge who’s looked at this since the district [court] has agreed with that position,” Carvin said, predicting that opponents would not be able to obtain another order blocking enforcement of the proposition.

“We’re quite confident the Supreme Court is not going to grant review,” he said. “So really there’s no reason to have it not take effect in a week.”

But an opponent of the initiative, attorney Mark Rosenbaum, was equally certain that the ballot measure raises too many important legal issues to be ignored by the nation’s highest court.

“This case raises for the first time in the country’s history a profound constitutional question on whether the political branches of local and state government can have their hands tied when it comes to remedying past discrimination against women and minorities,” said Rosenbaum, legal director of the American Civil Liberties Union of Southern California, which is challenging the initiative.

“That is precisely the sort of question that should be settled by the U.S. Supreme Court, especially when there are 26 other states looking at similar measures,” he said.

A federal judge blocked Proposition 209 from taking effect soon after it passed with 54% of the vote in November. U.S. District Judge Thelton Henderson concluded that there was a “strong probability” that it would be found unconstitutional, essentially agreeing with opponents that the measure limited the ability of women and minorities to seek redress for past discrimination, while placing no such obstacles in the path of other groups, such as the aged.

Initiative supporters appealed Henderson’s ruling to the 9th Circuit, and in April a three-member panel of that court overturned it. “There is simply no doubt that Proposition 209 is constitutional,” the judges concluded.

Opponents then asked the full appeals court to reconsider that opinion. But Thursday the court announced that a majority of its judges voted not to take the matter up again.

Speaking at the Park Hyatt Hotel in Century City, Gov. Pete Wilson--a supporter of Proposition 209--called the 9th Circuit’s decision a vindication of the civil rights activism of the 1960s. “209--as the people of California well understood when they voted for it overwhelmingly--means an end to racial, ethnic and gender discrimination,” Wilson said.

Ethnic and racial minorities, he continued, “will never have to apologize or feel the slight that so many do now that they are suspect of having been appointed, having been awarded a job, a contract or a place in an entering class simply because of their race or gender.”

Barring a court stay within the next seven days, Wilson said, the next step is for a state appeals court to strike down those California statutes that would be in opposition to Proposition 209. That could happen, he said, as early as the end of November.

Connerly, who was listening to Wilson’s comments by speaker phone, warned cities and counties that don’t want to comply with the proposition that “we will be watching.”

“And we will sue to make every agency in the state--even the mosquito abatement district--reach compliance,” he said.