U.S. Judge Blocks Enforcement of Prop. 209 by State

SAN FRANCISCO —  A federal judge blocked enforcement of Proposition 209 on Wednesday, saying there is a “strong probability” that opponents will show that the anti-affirmative action measure is unconstitutional.

The temporary restraining order by U.S. District Judge Thelton E. Henderson bars Gov. Pete Wilson and Atty. Gen. Dan Lungren from enforcing the proposition until at least Dec. 16, when a hearing on a preliminary injunction is scheduled.

“In a case of this nature, the issue is not whether this court should reject or respect the ‘will of the people,’ ” Henderson wrote in a nine-page ruling. “Rather, the issue is whether the challenged enactment complies with the laws of our Constitution and Bill of Rights.”

Henderson’s order will not be appealed because the hearing on a preliminary injunction is so near.

Although the ruling applies only to Wilson and Lungren, it sends a message to other governmental agencies that they also could be blocked if they try to enforce the ballot measure. Proposition 209, passed Nov. 5 by 54% of voters in California, barred all state government-sponsored affirmative action programs based on race or gender.

Legal experts expect that court challenges to the measure could take years before ultimately reaching the U.S. Supreme Court.

Wilson called Henderson’s decision “an affront to common sense” and to California voters.

“The absurd consequences of this ruling is that California can constitutionally only prohibit discrimination against some races but cannot constitutionally prohibit discrimination against all races,” Wilson said.

The governor has tried unsuccessfully to persuade Henderson to abstain from hearing the Proposition 209 case to allow a state court to examine it. A hearing in a state court presumably would give Wilson an advantage because most state judges have been appointed by Republican governors and regularly face election.

Henderson, who practiced civil rights and criminal defense law before President Jimmy Carter appointed him to the federal bench in 1980, has rejected Wilson’s request but will hear more arguments on it in January.

Henderson’s order drew angry denunciations from some state legislators, including Republican Assemblyman Bernie Richter of Chico, an ardent supporter of Proposition 209.

“It is well known that this guy [Judge Henderson] is probably the most leftist, wacko, liberal judge sitting on the bench in the United States,” Richter said. “It would be an understatement to say he is left of Lenin.

“I suspect that, ironically, this decision, coming from him, is the ultimate proof” of the argument that affirmative action benefits people who are not qualified.

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But lawyers who had sought the restraining order in a lawsuit filed the day after the election were jubilant Wednesday. They had argued that the proposition violates constitutional guarantees of equal protection and usurps federal authority by bypassing federal discrimination policies.

“Thanksgiving got to California a day early,” said Mark Rosenbaum, legal director of the American Civil Liberties Union of Southern California, who argued for the order before Henderson on Monday.

“And I think the governor had a race card yanked from his deck,” he said.

Henderson based his ruling on equal protection guarantees under the U.S. Constitution. Civil rights groups contended that the ballot measure violates these rights by preventing women and minorities from seeking government programs to remedy discrimination that remain available to others, including the aged.

The judge accepted the reasoning, noting that equal protection rights prohibit “subtle distortions” of the governmental process that place special burdens on women and minorities but not on others.

“The continuation for a few days of affirmative action programs already in place does not impose any undue hardship on the state of California,” Henderson wrote. “On the other hand, the public interest in remedying discrimination, which underlies existing governmental affirmative action programs, weighs in favor” of a restraining order.

Wilson and Lungren have acted “with considerable dispatch” to enforce the proposition, even declining to delay implementation until a hearing on a preliminary injunction, Henderson said.

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Although they now cannot enforce the measure, both state officials can continue efforts to identify which state programs would be eliminated.

“The ruling is disappointing but not unexpected,” Lungren said through a spokesman. “In fact, it has become typical in circumstances like this where you have an initiative passed by a majority of the people and immediately challenged by those who lost at the polls.”

Wilson contended that the order was “entirely unnecessary,” and other state officials said the governor will continue to review programs that could be abolished by Proposition 209. Some state officials said they believe that the University of California, which is run by an appointed Board of Regents, and local governments are free to enforce the proposition because the order applies only to Wilson, Lungren and state agencies directly answering to them.

“This is not binding” on other governmental entities, one official said. “It doesn’t affect the University of California. It doesn’t affect the cities, and it doesn’t affect counties.”

Nevertheless, the ACLU’s Rosenbaum warned that he and other lawyers “will be in court in a heartbeat” if other governmental officials try to move forward. The university and local governments, he said, will be included in the request for a preliminary injunction.

The order left the nine-campus, 164,000-student UC system in limbo at a time when admissions officers are getting ready to choose the fall 1997 freshman class.

Applications for undergraduate admissions must be postmarked by midnight Monday. After the passage of Proposition 209, UC officials had said that applicants would be evaluated without regard to race or gender. But with the court order, UC officials were unsure as to how to proceed.

On Wednesday, UC spokesman Rick Malaspina said admission decisions will not be made until late next month.

UC General Counsel James E. Holst issued a statement saying that officials expect the ACLU to push to broaden the judge’s order to include the university.

“Our most immediate concern is to provide students who are now applying for undergraduate admission to the university with a clear understanding of the criteria to be used in the selection process,” Holst said. “We hope the court will keep the interests of students and their families in mind and provide guidance in this matter at the earliest possible time.”

The situation is all the more complicated for UC because the timetable to implement the affirmative action ban has already been changed more than once. In 1995, UC regents passed a resolution that banned the use of race and gender preferences in admissions. After much wrangling, UC officials said it would take effect for spring 1998 applicants.

Then with Proposition 209’s passage, UC announced that the ban would take effect immediately, for students applying for fall 1997.

The ruling by Henderson did not surprise those familiar with his record.

Henderson is regarded as a liberal but cautious jurist. He has frequently ruled on behalf of victims of discrimination and has upheld a city minority contracting program in San Francisco.

Born in Louisiana during Jim Crow days, Henderson, who is black, told a legal newspaper several years ago that he is “more acutely aware than many of the feeling of being powerless.”

In Mississippi in the 1960s, he was arrested for a traffic violation, assaulted, called a racial epithet and nearly jailed before he had the chance to show that he was a lawyer for the U.S. Department of Justice.

Wilson’s office has accused civil rights lawyers of shopping for a favorable judge in the Proposition 209 case, charges that Henderson and civil rights lawyers flatly rejected.

The suit against the measure was originally assigned to a Republican appointee on the federal bench in San Francisco. But civil rights lawyers shifted the case to Henderson on the grounds that he was already hearing a related matter: a challenge filed before the election to a local affirmative action contracting program.

Times education writer Amy Wallace in Los Angeles and staff writer Carl Ingram in Sacramento contributed to this story.

* SIMILAR RULINGS

The ruling on Prop. 209 echoes decision to bar Prop. 187. A3