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May 21, 2001 | May 16, 2001 |

May 21, 2001

Wealth Preferences for College Admissions

Read the full article,  Preferences for the Rich Grease the Way to College by William Marshall, Los Angeles Times, at: http://www.latimes.com/news/comment/20010521/t000042643.html

     In today's Los Angeles Times, William Marshall, professor of law at the University of North Carolina at Chapel Hill , eloquently points out the distress that opponents of affirmative action must be having with last week's decision by the University of California Regents ending the ban on affirmative action in the University of California system. The prior deputy White House counsel under President Clinton points out the persistent flaw in college admissions programs that should haunt those who believe that this country is committed to equal opportunity based on pure merit:  the system he calls "wealth preference" which relaxes standards to admit the relatives of large donors. 
     Like the legacy system, which lowers standards to admit relatives of prior graduates, this wealth preference should be fought against by those professing philosophies consistent with the anti-affirmative action position that admissions should be based entirely on merit. After all, Marshall asks, what merit is there simply in having been born into a wealthy family? 
     Marshall continues in his article to raise the key question: why should affirmative action for the wealthy be considered less objectionable than policies that would give traditionally underrepresented groups an advantage in getting into prestigious institutions? He then compares and contrasts the situations of students of wealthy families to that of minority students, pointing out that:

-- there is no poorer education that kids of wealthy families need to overcome with an adjusted admissions standard, as these students, unlike minority students, have not been educated in some of the nation's worst secondary schools. 
-- there is no history of discrimination and/or continued "demoralizing" stigmatization suffered by kids of wealthy families, no systemic exclusion, no "wealth profiling" as might be noted by some minority (or female) students. 
-- there is no lack of access to high level jobs for the kids of wealthy families so admissions to top schools are not needed to help these students to get jobs in the companies controlled by their own families, a competitive advantage rarely seen with minority students.

Marshall concludes by noting that, "...the opponents of affirmative action are often the same people who, rather than being committed to leveling playing fields for all, are committed to enhancing the advantages of wealth..." and asks if arguments against affirmative action are based on "lofty notions of equal opportunity,  or are they based on protecting the existing privileges of those who need it the least?"

Read the full article,  Preferences for the Rich Grease the Way to College by William Marshall, Los Angeles Times, at: http://www.latimes.com/news/comment/20010521/t000042643.html

May 16, 2001

University of California Drops Ban on Affirmative Action

    Reuters reported today that, the University of California today rescinded its ban on affirmative action admission and hiring policies. This is a symbolic move as such programs remain prohibited by state law, Proposition 201, passed in 1996.
     In 1995, the University’s Board of Regents, lead by the public and outspoken anti-affirmative efforts of Regent Ward Connerly, took the lead in a U.S. movement to junk affirmative action policies in place since the 1960s. This took place prior to the ballot initiative vote on Proposition 209. In reversing their actions, the Board of Regents voted unanimously to scrap the internal ban on using race and gender as factors in making admissions and other decisions.
     Reuters quoted University of California-Los Angeles student Karen Lane as saying, "We definitely, as students, consider this a partial victory. " She was one of more than one hundred vocal demonstrators who reportedly attended the board meeting pushing for an across-the-board resumption of affirmative action programs.
     Thpugh the University passed a ban on affirmative action in 1995, its action was strengthened in 1996 with the passage by California voters of Proposition 209, which prohibited most of the the official governmental and state’s race- and gender-based preference policies.
     Reuters reported University Regent Odessa Johnson today as saying that the board vote "does not mean that we’re not going to abide by the principle of Prop 209...It just allows us some more latitude in some other kinds of considerations."
     The University system had noted sharp declines in minority enrollment at the system's top universities, causing the Regents to come under obvious pressure from students and minority groups to reconsider their actions in independently opposing the affirmative action policies. This has been the most visible adverse and potentially long-lasting effect of Prop 209 policies and may represent the tip of the iceberg as to the problems we will face in the future. Student activists have long sought to have the University system change their policies to make sure that members of minority groups feel that they are welcome on campus.
     Regent Ward Connerly, who wrote and publicly championed the original ban on race-based admissions in 1995, indicated support for the Board of Regent's May 16, 2001 s vote. Connerly was quoted by Reuters as saying,  "It’s about symbolism, and if that’s what it’s about, let’s not let our egos get in the way of solving this problem."
     To those students active in the process as well as supporters of affirmative action programs done with the guidelines of the Presidential Executive Orders of 1995 and 1996 and overturned with the passage of Prop 209,  the comments of Connerly sound as empty excuses.  The predictions by anti-Prop 209 of a decimation in the inclusion of groups traditionally excluded from programs came true strongest in the University system. Instead of accepting that the Prop 209 types of policies failed and have set the University system backwards, Connerly makes excuses without admitting the obvious, that he and the Board of Regents were wrong. 
     Gov. Gray Davis was reported by Reuters as saying that the University of California system "should reach out to all deserving students regardless of their race or ethnicity.

April 27, 1998

Students for Educational Opportunity gather signatures to reverse educational portion of Prop 209

Californians have until June 20 to qualify the Equal Educational Opportunity Initiative for the November ballot. The EEOI would allow affirmative action again in public education, specifically public elementary schools, high schools, community colleges, and universities, to use affirmative action programs to ensure equal opportunity, promote diversity, and combat discrimination. The EEOI would reverse the educational portion of Proposition 209.

"California Votes NO on 209" supports this initiative. The EEOI is supported by U.S. Representative Barbara Lee, Reverend Jesse Jackson, State Senator Teresa Hughes, State Assemblywoman Dion Aroner, Professor Ronald Takaki, The California Democratic Council, California Teachers Association, California Faculty Association, Feminist Majority, NAACP (CA), NOW (CA), ACLU (CA), Rainbow/PUSH Coalition, Chinese for Affirmative Action, League of United Latin American Citizens (LULAC), United Auto Workers (Northern CA), Lawyers' Committee for Civil Rights, National Lawyers' Guild (SF), San Francisco Bar Association, Alameda County Bar Association, San Francisco La Raza Lawyers' Association, San Diego La Raza Lawyers' Association, Black Women Lawyers' Association of Los Angeles, the Civil Rights Coalition (Northern CA), and many others.

Andrea Guerrero, a law student at UC Berkeley and co-author of the EEOI, sees the breadth of support for the EEOI as an affirmation of diversity. "Our supporters recognize that diversity is one of California's greatest strengths. It invigorates our learning environments, our economy and our culture. Instead of suppressing it in our schools, we should cultivate and celebrate it. We simply can not afford to return to the days of segregation." Students have been both appalled and energized by the dramatic drops (as high as 66%) in African-American, Latino/Chicano, Native-American, and Filipino students admitted to UCLA, UC Berkeley, UC Davis, UC San Diego, and UC Irvine. Adam Murray, a law student at UC Berkeley and co-author of the EEOI, sees these drops as a call to action. "If we allow our schools to become segregated and we restrict educational opportunities for whole segments of our population, we fail our children and we jeopardize our future. We need affirmative action to ensure equal opportunity in our state and diverse perspectives in our classrooms."

The text of EEOI reads as follows: In order to provide equal opportunity, promote diversity, and combat discrimination in public education, the state may consider the economic background, race, sex, ethnicity, and national origin of qualified individuals.

Join "NO on 209" in lending your support to this important initiative.

Here's what you can do:
sign the EEOI initiative petition on the EEOI website
volunteer to help by calling 510-601-8405, 714-364-4370 or email EEOI@aol.com
encourage your friends to register to vote and sign the initiative EEOI website

Join "NO on 209" in lending your support to this important initiative! This is the first step to reversing the harmful impact of Prop 209.

November 3, 1997

Supreme Court rejects Proposition 209!

On November 3, 1997, the US Supreme Court rejected a broad challenge to California's Proposition 209. This decision was to rule against hearing the appeal filed by the American Civil Liberites Union claiming that government sometimes has "an affirmative duty ...to employ race preferences" to make up for past or present discrimination against minorities. This sets the stage for full enforcement of Prop 209. However, since Prop 209 does not change Federal laws and since many of California's local programs get federal funding, many situations exist where Prop 209 can not be implemented. However, individual situations where past or present discrimination based on gender or race in public employment, education or contracting can still be litigated. These may wind their way up to the Supreme Court and provide a way to challenge Prop 209 in the future. 

August 28, 1997

Prop 209 Upholding becomes Final

Last week's ruling not to grant a ruling by the full US 9th Circuit Court of Appeals affirming Proposition 209 becomes effective today, granting the state the right to enforce Proposition 209. The ACLU and others opposing Prop 209 had filed a request to delay the federal appellate court's decision from taking effect until their appeal to the US Supreme Court is heard. This ruling means that, unless the Supreme Court agrees to stay the appellate court ruling, California's affirmative action programs could begin unravelling.

According to today's LA Times article by Dan Morain and Bettina Boxall, Proposition 5, passed in June 1978 declares that state agencies cannot act on their own to determine that a state statute is illegal. They must wait for appellate court rulings on a law's unconstitutionality before they stop enforcing it. Governor Wilson and Prop 209 chair Ward Connerly filed their suit last year to have various statutes implementing state affirmative action programs declared unconstitutional. Other lawsuits will need to be filed to strike down programs in agencies not covered in their original suit. Until these suits are heard, with Wilson and Connerly's scheduled for October 3, 1997, "It will be business as usual," according to Anne Richards at the Department of General Services. State law requires that at least 15% of contracts in a state job to be awarded to minority-owned business and 5% to women-owned business. Laws require ethnicity and gender to be considered in hiring. Even if the Wilson and Connerly suit is won, federal law requires 10% of Department of Transportation contracts to go to minority-owned firms because federal money is used in highway works. Other state agencies have similar requirements. While local governments are not bound by the 1978 proposition, many are not rushing to end their affirmative action efforts, citing vague language or court orders imposing their plans.

Proposition 209 opponents plan to petition Supreme Court Justice Sandra Day O'Connor to halt enforcement of Proposition 209, contending that they, not the state, would be the victims of irreparable harm and be placed in a legal quandary in enforcement if the stay is denied.

June 14, 1997

Clinton Speaks at UC San Diego against Prop 209

In his commencement address at UC San Diego, President Clinton presented his plan to create "a more perfect union" to reduce the division in US society caused by race and ethnicity concerns. According to the LA Times June 15, 1997 article by Johathan Peterson, Clinton stated that, "I know the people of California voted to repeal affirmative action without any ill motive" and challenged, "To those of you who oppose affirmative action, I ask you to come up with an alternative." Clinton proposed a year of candid dialogue including possible policy actions and legislation for the summer of 1998.

While anti-209 groups felt dialogue was important as a first step, most felt that a coherent policy package would be necessary to make any progress. Suggestions were provided by the Mexican American Legal Defense and Education Fund, the National Asian Pacific American Legal Consortium and the National Urban League. Clinton defused criticism by pointing to Congress to increase funding, stating, "It is imperative that Congres -- especially those members who say thery're for civil rights but against affirmative action -- at least give us the money necessary to enforce the law of the land and do it soon."

April 11, 1997

9th Circuit Panel Upholds Prop 209

A three member panel of judges from the 9th Circuit Court ruled Tuesday, April 8, 1997 that California's Prop 209 is constitutional and can be enforced to eliminate government affirmative action programs. The three judges were assigned as a motions panel to hear and rule on the motion made for a stay of the preliminary injunction order issued by U.S. District Judge Thelton Henderson on November 27, 1996. In an unheard of precedent, this motions panel decided to 'convert' themselves into a merits panel as well, and decide both the validity of the motion against the injunction and the merits of the injunction at one sitting.

The motions panel for this month consists of two conservative appointees of President Ronald Reagan, Judges Diarmuid O'Scannlain and Edward Leavy, and a conservative appontee of President George Bush, Judge Andrew Kleinfeld. Other judges sit on the merits panel, a separate panel which should have had the right and responsibility to hear and rule on the merits of Judge Henderson's injunction once the motion panel decided on the issue of the motion for a stay of the injunction. Why the panel exceeded their assigned authority is not known, but it appears that the judges grabbed the opportunity to make their mark on this issue. They did this by concurring with the motion for the stay of the preliminary injunction, overturning the injunction, and declaring the constitutionality of Prop 209 without having the issue of constitutionality before them and without ever taking testimony or evidence on the full scope of the issues!

What is expected? The panel's opinion that prior rulings of the U.S. Supreme Court in similar cases did not apply will be the basis for further appeals. For example, the 1982 Washington v. Seattle School District No. 1 case ruled on an initiative mandating that all students attend neighborhood schools. This initiative was ruled as unconstitutional because it impeded the political process and was discriminatory against minorities because it made "enactment of racially beneficial legislation difficult." The opponents of Prop 209 have asked for a ruling by the full 9th Circuit Court of Appeals first, with appeal to the U.S. Supreme Court by either side likely.

While the decision by the Circuit Panel was vastly beyond their charge, it was not inconsistent with the judges' prior leanings.The U.S. Justice Department declared Thursday, April 10, 1997 that they would continue to challenge Prop 209's ban on affirmative action, participating as amicus curiae or friend of the court in future preceedings.

For additional information, please see CNN's report "Court: California voters can end affirmative action" or Los Angeles Times article "US Panel Upholds Prop 209".

December 28, 1996

University of California President Announces Admissions Criteria for Fall 1997

As University of California (UC) admissions departments sort through 70,000 applications for the Fall 1997 freshman class, UC President Richard C. Atkinson officially announced that the previously used affirmative action guidelines will be effective for the pending class selection. This decision reverses the announcement made after the passage of Prop 209 this November, when the UC system declared that it would accelerate the elimination of affirmative action considerations in its admissions policy to the Fall 1997 class.

In 1995, the UC Board of Regents had passed a resolution banning the use of gender and racial consideration in admissions and financial aid, effective with the Spring 1998 class. After Prop 209 passed, UC announced that the initiative would allow the implementation of changes effective for the entering freshman class of Fall 1997. US District Judge Thelton E. Henderson's preliminary injunction against the enforcement of Prop 209 prevents the UC system, as well as state and local governments from using the initiative's ban on affirmative action in decisions and rulings, until the legal issues on the constitutionality of the measure are resolved.

The UC Board of Regents' 1995 resolution to ban the use of affirmative action in its admissions policy is another example of how Proposition 209 was unnecessary for California. The supporters of Prop 209 have never been able to provide a single example of discriminatory practices that Prop 209 would prevent that were not already illegal or based on legislation or regulations that could be changed without a constitutional amendment.

December 23, 1996

Preliminary Injunction Blocks Enforcement of Prop 209

US Chief District Judge Thelton Henderson ruled today and granted a preliminary injunction against the enforcement of Prop 209, pending final ruling on whether or not the initiative passed by California voters in November is constitutional. In a 67 page ruling, Henderson states that, "...our system of democracy teaches that the will of the people, important as it is, does not reign absolute but must be kept in harmony with our Constitution."

The preliminary injunction is just one step in the long path that the anti-affirmative action initiative is on. After gathering enough signatures and qualifying for the ballot, court battles were waged over the title of the initiative, striking the phrase "California Civil Rights Initiative (CCRI). Then the failure to include the fact that affirmative action would be overturned was the subject of the next battle. Lawsuits over improper use of the Governor's office and state funds, the bias of the Attorney General's office official ballot description, and other improprieties were charged. However, after the California voters approved the ballot initiative by 54% to 46% in November, over 20 other states planned similiar measures. The stakes are high, as the expectation is that the entire country is at risk. Therefore, Constitutionality of this Proposition must be ruled on to bring this debate into the national arena.

December 20, 1996

President Clinton Supports Department of Justice Fight Against Prop 209

After weeks of reviewing material, the US Justice Department has determined that California's Prop 209 is unconstitutional. With the encouragement of President Clinton, the federal government will become one of the plantiffs in the case against Prop 209 pending before Chief US District Judge Thelton Henderson. The Clinton administration had the option of joining lawsuit as a "friend of the court" or as a plantiff; the plantiff position shows Clinton's strong support of affirmative action. According to the legal director of the Southern California ACLU Mark Rosenbaum, the joining of the Unitied States as a plantiff "... will add clout to (our) argument."

The announcement was made by White House Press Secretary Mike McCurry at a press conference today. McCurry pointed out that Clinton made his position against Prop 209 well-known during the campaign, but that, "...it's a stricter construction of an argument to say ... you believe that the action is unconstitutitional," in explaining why the administration did not join the lawsuit sooner. He indicated that Justice Department attorneys was not disclosing how they would intervene or what arguments they would use in the case started by the ACLU and affirmative action groups. However, McCurry confirmed that, "The arguments have related to the nature of discrimination: denying an identified group ... access to a process that would be available to other identified groups ..."

Regardless of how the case is decided by Judge Henderson, it is certain to be appealed to the US Supreme Court. Given the make-up of the Court at this time and its recent history of 5-4 votes against civil rights issues, a long time course is favorable to NO! on Prop 209. This would give the opportunity for any soon-to retire Justices to be replaced by President Clinton. California Attorney General Dan Lungren will try to move the case quickly to the Supreme Court for the same reason.

Visitors to NO! on Prop 209 have been writing to the President and Attorney General Janet Reno to encourage the involvement of the Justice Department in this battle. Thank you to all who participated! A letter of thanks to the White House and Janet Reno would be appreciated.

December 16, 1996

Judge Henderson Extends Temporary Restraining Order on Prop 209 Enforcement

After hearings concluded today on Prop 209's constitutionality, Judge Thelton Henderson extended November 27th's temporary restraining order on Prop 209 until Monday, December 23, 1996. At that time, Chief US District Judge Henderson indicated he would rule on whether to grant a preliminary injunction banning enforcement of Prop 209 until the issue is resolved.

Arguments heard at today's hearing included those from Mark Rosenbaum, ACLU of Southern California legal director, on the special burden faced by women and minorities, who would have to seek another constitutional amendment before they could obtain legislative relief against discrimination, while other groups do not have that burden. The 1982 ruling of the US Supreme Court opposing a Washington state amendment banning race-based busing has been quoted as a precedent for Judge Henderson to grant the preliminary injunction. Supporters of Prop 209 contend that women and minorities would still have remedies for discrimination and would only have access to special preferences barred. They argue that the 1982 Washington case was aimed at taking away the benefit of busing while Prop 209 prevents harm to others. The attorney representing the proposition's sponsors also requested that Henderson disqualify himself from deciding this case because he had been on the board of the ACLU of Northern California two decades ago. Henderson indicated that he would request another judge rule on that issue.

November 27, 1996

US District Judge Thelton Henderson Blocks Prop 209 Enforcement -- Complete Text Available

A temporary restraining order was issued today barring Governor Pete Wilson and Attorney General Dan Lungren from enforcing Proposition 209 until a hearing, scheduled for December 16th, is held. The preliminary injunction was discussed in a nine-page ruling by Judge Henderson, in which he wrote, "...the issue is whether the challenged enactment complies with the laws of our Constitution and Bill of Rights." Judge Henderson accepted the argument of the ACLU and civil rights coalition attorneys who contended that the ballot measure violated the equal protection guarantees under the US Constitution by preventing women and minorities from seeking government programs to remedy discrimination. Other groups, such as the aged and veterans, are not restricted while Proposition 209 restricts women and minorities. In addition, the attorneys argued that Proposition 209 improperly usurped federal antidiscrimination policies. Send a letter to President Clinton and US Attorney General Janet Reno to ask the Federal Government's Department of Justice to intervene in preventing Prop 209 from being implemented.

It was noted that Governor Wilson and Attorney General Lungren had already acted rapidly to enforce the proposition, without waiting for hearings on its interpretation or even the hearing on the preliminary injunction. Henderson stated that the temporary restraining order was indicated until the hearing because of the rapidity with which the state leaders were acting and the fact that, "The continuation for a few days of affirmative action programs already in place does not impose any undue hardship on the state of California." The ruling prohibits enforcement of Proposition 209 by Governor Wilson and Attorney General Lungren, however, they are expected to continue efforts to indentify state programs which would be eliminated. The University of California admissions policies are not immediately impacted by this ruling.

State Personnel Board continues Hiring Goals

State Personnel Board Executive Director C. Lance Barnett stated that he would continue to use hiring goals for women and minorities, basing his decision on his belief that goals do not violate Proposition 209 which outlaws quotas. Citing the need to monitor the effectiveness of the state's outreach efforts, Barnett said that falling short in hiring goals would allow advocates to "tailor your outreach efforts to make sure you are getting appropriate representation in your candidate pool." Adding, "...since we do not have any quota systems anywhere, we do not see 209 affecting us." The Governor's administration officials disagree and indicated that they will correct any misinterpretation by Barnett and review practices by the Personnel Board for future action in the same way that they review other government programs that include race or gender preferences.

Ward Connerly leading Non-Profit Fund Raising to Defend Prop 209 and keep "all men...equal"

The non-profit Pacific Legal Foundation is fund raising to defend Prop 209 in court. According to a Pacific Legal Foundation appeal signed by Ward Connerly for tax-deductible funds, the Foundation was asked by Prop 209 drafters and proponents to lead in the defense of Prop 209 in court. Even before the request for the temporary injunction was filed by attorneys for the ACLU and the civil rights coalition, the Pacific Legal Foundation was in state court to take the offensive to try to enforce Prop 209. Citing their hope for success of Prop 209 in California as paving the way for other states in the nation to proceed with their own anti-affirmative action laws, the Pacific Legal Foundation is seeking funds on a national basis.

The appeal by Ward Connerly clearly shows his anti-woman bias. He states that "the fundamental principle upon which this nation was founded, i.e., 'that all men are created equal.'" is mocked by the current system. Mr. Connerly forgets the reality that this phrase was written when women (as well as non-whites) were specifically NOT included, and that 'men' referred to white, property-owning males. Fight this injustice with your own NON-Tax deductible donation to the ACLU or to STOP Prop 209 and support the fight AGAINST Prop 209.

November 6, 1996

Prop 209 Passes, Battle Moves to the Courts

Affirmative Action loses and Prop 209 passes, with a vote of 45.7% to 54.3% at the polls, following the November 5th ballot. The debate over affirmative action and gender discrimination continues as lawsuits were filed to block the implementation of Prop 209 while Governor Wilson issued an executive order directing state agencies to identify race and gender preference programs for elimination. A 1978 initiative, instituted so that government officials would not be deciding the legality of programs under their own control, is being used by state attorneys to require an appellate court decision before state agencies can eliminate programs.

Prop 209 opponents filed a lawsuit in federal court in San Francisco, claiming that the initiative violates the US Constitution's equal protection clause. Currently, veterans and other groups can seek legislation that grants them preferences, while under Prop 209 women and minorities would not be able.

The UC system will be expected to accelerate their implementation of the 1995 resolution by the UC Board of Regents banning the use of preferences in the university system. Students applying this year had received a note in their application package indicating that the passage of Prop 209 would impact admission criteria. Meanwhile, State Superintendent of Public Instruction Delaine Eastin indicated that the anti-bias provisions would have to be interpreted by the courts before they would be implemented in the state's school districts.

STOP Prop 209 will continue efforts to preserve affirmative action.

October 16, 1996

President Clinton supports Affirmative Action and Opposes Prop 209

During tonight's debate of the presidential campaign, President Clinton responded to a question from the uncommitted San Diego voter, Chessie Sanders, who asked, "Do you feel that America has grown enough and has educated itself enough to totally cut out affirmative action?"

President Clinton replied, "No ma'am, I don't. I am against quotas, I am against giving anybody any kind of preference for something they're not qualified for. But because I still believe that there is some discrimination and that not everybody has an opportunity to prove they're qualified, I favor the right kind of affirmative action. I've done more to eliminate affirmative action programs that I didn't think were fair, and tighten others up than my predecessors have since affirmative action's been around. But I've also worked hard to give people a chance to prove that they are qualified....For me, affirmative action is making that extra effort. It's sort of like what Sen. Dole did when he sponsored the Americans for Disability Act and said to certain stores, "Okay you've got to make it accessible to people in wheelchairs." We weren't guaranteeing anything to anybody..., but the chance to prove that they were qualified. The chance to prove that they could do it. That's why I must say that I agree with Gen. Colin Powell that we're not there yet. We've ought to keep making those extra effort affirmative action programs the law and the policy of the land."

After Dole's response asking for support for Prop 209, President Clinton responded, "I have never supported quotas. I have always been against them. I don't favor equal results. But I do favor making sure everybody has a chance to prove they're competent. The reason I have opposed that initiative is because I'm afraid it will end those extra effort programs. Again I say, think of the Americans for Disabilities Act. Make an effort to put a ramp up there so someone in a wheelchair can get up. You don't guarantee that they get the job, you guarantee they have a chance to prove they are competent.... No preferences to unqualified people. No quotas. But don't give up on making an extra effort till you're sure that everybody has a chance to prove that they're qualified."

Thank you, President Clinton. California appreciates your open opposition to Proposition 209 and support of affirmative action!

October 9, 1996

209 Rally Tonight! -- STOP Prop -- Los Angeles

Last chance to sign up for the Rally to Benefit the STOP Prop 209 Campaign is this afternoon! If you want to attend, please call STOP Prop 209 at 310-358-3210 to register before the event. The rally starts at 7:30 pm (doors open at 6:45 pm) at the Wilshire Ebell Theatre, 743 South Lucerne at Wilshire Boulevard. Tickets are $100 for open seating and $200 for reserved seating.

October 4, 1996

Occidental College student group schedules October 9^th anti-209 meeting -- Ismael Chavez, Fourwinds Student Movement Organizer

A massive Anti-Prop. 209 emergency meeting will be held on Wed., October 9, 1996 @ 6:00 p.m. The objective of the meeting is to organize against the deadly proposition, and to create a consciousness about the intended agenda set forth by the conservative right wing. We urge all organizers and members of organizations opposing Prop 209 (CCRI) to attend! The meeting will be at Occidental College, Mosher 1 (Chemistry Lecture Hall), 1600 Campus Road, Los Angeles, CA 90041on Wed., October 9, 1996 - 6:00 pm.

Directions from Downtown LA, South LA Region, East LA, take 5 North, Glendale Freeway (2) North, exit Verdugo Blvd., make a left on Verdugo Blvd., go down 3 major street lights, on Westdale Ave. make a right follow it until it ends as Campus Road. Further directions will be posted on the street.
Directions from San Fernando Valley and the Burbank Area, take the Ventura Freeway (134) east through Glendale to the Harvey Drive exit. Turn right at the end of the off-ramp and then left at the light onto Wilson, which will merge with Colorado Boulevard. Continue on Colorado Boulevard to Eagle Rock Boulevard. Turn right and continue four traffic lights to Westdale Avenue. Turn left on Westdale Avenue and follow it until it ends as Campus Road.

This would be a great opportunity for those of you unable to attend the rally at the Wilshire Ebell Theatre the same evening. E-Mail Ismael Chavez: chavezi@oxy.edu if you have questions.

Rally to Benefit the STOP Prop 209 Campaign

STOP Prop 209 Campaign will hold a rally on October 9, 1996 at the Wilshire Ebell Theatre, 743 South Lucerne at Wilshire Blvd, Los Angeles, at 7:30 pm. Doors open at 6:45 pm. Seating is limited so call and reserve your tickets for this history making event. Special guest Anita Hill will join Senators Dianne Feinstein and Barbara Boxer and many other special guests. Tickets are $200 for general reserved seating and $100 for open seating. Call Ingrid or Debbie at STOP Prop 209 Campaign at 310-358-3210 to reserve tickets.

Proposition 209 Author admits Initiative's destructive effects on Education -- Campaign to Defeat 209, Los Angeles

One of the authors of Proposition 209 has admitted the devastating impact Proposition 209 will have on outreach, recruiting and magnet schools. Tom Wood admitted on Tuesday, September 24, "...most magnet schools would be prohibited under CCRI." This occurred during the Assembly Judiciary hearing on Proposition 209, held September 24, 1996.

Wood has also admitted, "The phrase 'in the operation of' includes outreach and recruitment." This was printed in his opinion piece in Business Times on June 7, 1996. In addition, his memo to Senator Quentin L. Kopp on March 16, 1995, states, "The phrase in the 'operation of' was included in (a) of CCRI in order to make sure that even the recruitment phase of public employment is fully covered.

Proposition 209 is an extreme measure that will gut equal opportunity efforts such as affirmative action, outreach, counseling and recruiting programs in public employment, education and contracting. In addition, htis initiative will gut California's sex discimination laws, currently among the strongest in the nation.

September 30, 1996

"Save the Dream" Freedom Bus Tour and Press Conference

The Freedom Bus Tour is moving through California to "Save the Dream" of affirmative action for women and minorities. Featuring Civil Rights leaders Rev. Jesse Jackson, Women's Feminist Majority's Ellie Smeal, National NOW's Patricia Ireland, and United Farm Workers' Dolores Huerta, the bus went to several Los Angeles and Pasadena churches and UC Santa Barbara yesterday. After stops in San Diego, the bus moved to Los Angeles today, starting with a press conference at the Los Angeles City Hall. Uniting women who have benefited from the now threatened affirmative action, the press conference featured women leaders from business, medicine, labor, girls' sports teams, peace officers, elected office, and city employment. The Freedom Bus moved next to a rally at UCLA, then Cal State Northridge and an evening fund raiser. The Freedom Bus will be travelling to communities and colleges throughout California to get out the message and raise public awareness about Proposition 209. Check STOP Prop 209 or call 1-800-STOP-209 for more details.

September 26, 1996

Prop 209 Debate Draws Few Clashes Inside and Many Out -- source: Associated Press; Los Angeles Times

Inside

Wednesday's debate between former Ku Klux Klan grand wizard David Duke and civil rights leader Joe Hicks was held at Cal State Northridge before a crowd of 800 attendees with an additional 430 watching on closed-circuit television. The debate, arranged by the Student Senate and the Associated Students' President Vladimir Cerna, enabled David Duke, an opponent of affirmative action, to discuss the issues with Joe Hicks, a supporter of affirmative action. Duke was the author of one of the first bills in the nation to ban affirmative action when he was a Louisiana State legislator. He relied largely on anecdotes in his presentation and was quoted as saying that affirmative action programs constitute "discrimination against better qualified whites." Joe Hicks, relying on historical perspective said that affirmative action has helped to level the playing field and stated, "Discrimination is a fact of life for all too many people."

The well behaved audience was clearly in Hicks corner, but respectful of Mr. Duke's appearance. While many students felt that Duke's association with the Klan made his appearance too controversial, Cerna said that Proposition Chair Ward Connerly and Governor Pete Wilson did not accept the invitation to appear as part of a planned panel discussion. Student leaders said that they thought the debate would energize the discussion of the issues in Prop. 209. Based on the media coverage of the event, they were successful.

Outside

Police on horseback and some with riot gear broke up a thousand demonstrators outside the debate as David Duke tried to leave. There were at least 6 arrests and several minor injuries among the police and at least one demonstrator when several protesters tried to harass Duke as he left the debate. The altercations were blamed on outside agitators and unrelated groups.

September 25, 1996

Today's Duke vs. Hicks Cal State Northridge Debate Hottest Ticket in Town -- Los Angeles Times, 9/25/96

The affirmative action debate scheduled for 2 p.m. today at Cal State Northridge has generated extensive interest and requests for tickets. All 430 tickets for the closed circuit view of the debate and the 800 initial tickets have now been distributed and several groups on and off campus have been vocal about the event. Prop 209 supporters tried to block the event, but Superior Court Judge William MacLaughlin rejected their request. The debate will highlight the views of ex-Klansman David Duke (on the pro-209 side) and civil rights activist Joe Hicks (on the anti-209 side) and is expected to generate continued interest in Proposition 209's impact on California.

State Legislative Committee Comvenes Informational Hearings on Proposition 209

The first of four informational hearings on Proposition 209 was held by the State Legislative Committee on September 24, 1996 in Burbank. Testifying were Neil Gotanda, Fullerton Western State University law professor, who reviewed a study done by Western State University law review students which indicated that the initiative would cause "sweeping changes at every level of the California education." He listed public education programs that would be jeopardized, including courses on women'sand ethnic studies, recruitment and scholarship programs which target minorities or women, and outreach programs. Check back for the schedule of upcoming hearings!

September 16, 1996

Taxpayers Demand Explanation -- Why is Pete Wilson Using Taxpayer Dollars to Promote Prop 209? -- Los Angeles, Campaign to Defeat 209

The Campaign to Defeat 209 today asked Governor Pete Wilson for an explanation of why he has been using taxpayer dollars to promote Propositon 209. The Campaign released copies of four press releases which had previously been issued by Governor Pete Wilson's state office. These press releases are in violation of state law prohibiting "any elected state officer, appointee, employee, or consultant to use of permit others to use state resources for a campign activity..." Cal. Gov. Code sec. 8314

Copies of these press releases were sent to Attorney General Lungren, Ward Connerly and Governor Pete Wilson, asking for an immediate stop to these illegal actiivites and for an investigation into the matter.

September 12, 1996

Among Voters Who Know -- Prop 209 Loses

New Field Poll shows 'Pro 209' campaign in Free- Fall, losing more support with every survey -- Los Angeles, Campaign to Defeat 209

The latest Field Poll show Prop. 209 losing among voters who know about the intiative. The poll was conducted between August 29^th and September 7^th, of 416 registered voters.

Of the 52% of likely voters who have heard of Proposition 209:
18% are opposed to Proposition 209
15% support Proposition 209

This is the first time in the Field Poll that a NO vote on Proposition 209 is higher than support for the initiative.

In addition, among likely voters who are read the official title and summary language:
44% are in favor of Proposition 209
31% are opposed to Proposition 209
28% are undecided

Support for Proposition 209 has dropped below 50% which puts any 'Yes' Proposition Campaign in critical condition. Such weak support shows that the Yes on 209 campaign is a leaky boat, sinking fast. This is the first time since the Field Poll began polling that support for Proposition 209 has dropped below 50%.

Before the fall campaign heats up, and the television ads have started, the Yes on 209 Campaign is in trouble. This latest poll shows that Proposition 209 is on its way to being defeated.

August 30, 1996

"NO on 209" doubles efforts by forming the Campaign to Defeat 209 and STOP Prop 209 Campaign

The Campaign to Defeat 209 and STOP Prop 209 Campaign have been formed to double our efforts in every way possible to defeat Proposition 209. Each campaign will have an office that will function independently and work against Proposition 209. "NO on 209" will no longer be an independent campaign, but its ideas and staff will support the other Campaigns. In this way, special focus and emphasis can be given to the needs and concerns of Californians.

Rally to Benefit the STOP Prop 209 Campaign

STOP Prop 209 Campaign will hold a rally on October 9, 1996 at the Wilshire Ebell Theatre, 743 South Lucerne at Wilshire Blvd, Los Angeles, at 7:30 pm. Doors open at 6:45 pm. Seating is limited so call and reserve your tickets for this history making event. Special guest Anita Hill will join Senators Dianne Feinstein and Barbara Boxer and many other special guests. Tickets are $200 for general reserved seating and $100 for open seating. Call Ingrid or Debbie at STOP Prop 209 Campaign at 310-358-3210 to reserve tickets.

August 7, 1996

Court Case I: Judge Calls Lungren's Title and Summary 'Misleading' -- Los Angeles, NO on 209

The Sacramento Superior Court last Thurday threw out the label, title and ballot summary Attorney General Lungren had prepared for Proposition 209. In doing so, the Court found "clear and convincing" evidence that the title and summary prepared by the attorney general's office was "false and misleading."

Court Case II: Lungren's Appeal Admits Goal of Proposition 209 is to be "Broad"

Lungren's appeal to the Third Circuit Court defended his use of the term "preferential treatment" in the ballot title and summary because -- Prop. 209 was "intended to be broad." Lungren also stated in his brief that, "Ascertainment of which programs fall within the proscription of the measure may well involve extended efforts on the part of both the judiciary and the Legislature." Memorandum of Points and Authorities in favor of writ of mandate Preliminary Statement, Attorney General Dan Lungren.

Nation's 3rd Largest Utility Opposes Prop. 209

Pacific Gas & Electric, the nation's third largest utility, has come out strongly in opposition to Proposition 209. Stanley T. Skinner, Chairman of PG&E released a strong statement from the company, saying that affirmative action equal opportunity programs have "enriched and strengthened our employee workforce."

'Pro 209' Group Bails Out of Clause (c) Hearings

On Tuesday, August 6, Senator Hilda Solis called a hearing of the Women's Caucus to hear from both sides of the issue on Clause (c) of Prop. 209. The night before, at 5:30 pm, the 'Pro 209' Campaign abruptly canceled their appearance, claiming that two of their people were sick, and so they were all going to pull out.

LA County Board of Supervisors Joins Five Other Counties in Opposition to 209

The Los Angeles County Board of Supervisors, the ruling body for the state's largest county, voted on a resolution introduced by Supervisor Yvonne Burke to oppose Proposition 209. The measure passed 3-1, with one abstention. Los Angeles County joins the Counties of Marin, Sacramento, San Francisco, Santa Clara and Sonoma in opposition to Prop. 209.

July 22, 1996

Mayor Riordan opposes Proposition 209 -- Los Angeles, NO on 209

The LA TImes applauded Mayor Riordan for his stance against Proposition 209 in their editorial on July 21, 1996. Mayor Riordan said Friday that he opposed Prop. 209 because "...it is divisive. It takes one of our greatest assets, our diversity, and tries to turn it into a liability."

In response, the Los Angeles Times said, "By carefully outlining the reasonable grounds on which he opposes the November ballot measure, Riordan has helped bring clarity to a controversial and deeply misleading ballot initiative." Los Angeles Times Editorial 7/21/96

July 16, 1996

CCRI Assigned Ballot Number -- VOTE NO on 209 -- Los Angeles, NO on CCRI

Secretary of State Bill Jones released the number for several ballot initiatives yesterday, including CCRI. The CCRI has been assigned number 209. So remember, tell everyone you know, vote NO on 209.

Dole Pulls Plug on his Own Affirmative Action Bill

Senator Dole has done an about face on his anti-civil rights and anti-women's rights legislation. His legislation was titled The Dole/Canady Bill, which was a federal version of Prop. 209. Yesterday, The Washington Post reported that the measure would be removed from consideration for the rest of this session.

"House leadership aides said Mr. Dole was approached about how he wanted to approach ending affirmative action. 'He said he'd rather shop it at the retail level in California and not move the whole thing and get into trouble with Northeast Republicans,' a senior House aide said." Washington Times 7/12/96

Polling Shows Proposition 209 Can Be Defeated

A recently-completed poll by the NO on CCRI/NO on 209 Campaign shows that when voters learn the full impact of the initiative, it fails to capture a majority. When hearing both sides of the argument, only 46% of likely voters support CCRI. The poll also showed that voters think the initiatve goes too far and believe CCRI will divide their communities.

The four main reasons voters move away from Prop. 209 are: voters support affirmative action, the language of the initiative is confusing, voters believe the initiative will be divisive and voters are concerned about the broad implications of the initative on women.

Over 100 AAUW Women Trained in San Diego

Last weekend over 100 Chapter Presidents of the American Association of University Women were trained to speak out about the dangers of Proposition 209. If your organization is going to have a state conference soon, and would like to arrange a special training, please call Gene Morrison at the Campaign. The number is (213) 782-1144.

Freedom Summer Update

The second wave of Freedom Summer '96 students have hit the ground running. In their first week after training they conducted voter registration drives, visibility actions, and participated in a state-wide action against Pete Wilson.

July 9, 1996

Public Interest Groups Call for Investigation -- Los Angeles, NO on CCRI

In a letter to Attorney General Dan Lungren, Common Cause, California NOW and California League of Women Voters asked for an immediate investigation into allegations that the State Republican Caucus used taxpayer dollars for political purposes.

The letter centered around the Republican Assembly Report titled The California Civil Rights Initiative: Restoring Equality Under the Law. This report "...was created, printed and distributed in apparent violation of California law." The letter asked for a "...comprehensive, in depth investigation be made by your office as to whether any of the above named individuals violated the California Government Code..." Letter to Attorney General Lungren, 7/1/96

Freedom Summer Completes 2nd Training

The second wave of Freedom Summer '96 students completed their training last week. Hundreds of students from California and across the country have arrived to carry out voter registration drives and educate young voters about the dangers of CCRI.

Gingrich Joins Growing List of Republicans Running from CCRI

"House Speaker Newt Gingrich said Wednesday that Bob Dole should steer clear of [CCRI]..." Sacramento Bee 6/27/96 He is joining a long list of Republicans trying to avoid this issue.

Presidential Candidate Bob Dole:

Former Governor George Deukemajian:

Former HUD Secretary Jack Kemp:

Campaign Continues to Grow

The No on CCRI Campaign continues to grow. We are currently supported by almost 400 diverse, community-based organizations. Co-sponsors range from the American Association of Retired Persons, to the San Diego Unified School District.

Preferences for World War II veterans were granted by the G.I. Bill of Rights in the 1940's and 50's, and expanded to veterans of various wars fought by the US. Acknowledging that veterans should receive assistance in reconstructing their civilian lives so that they can compete on an equal basis with people who have not served, veteran preferences are widely supported by the American public. However, the vast majority of veterans are white men (remember the women who were not allowed to join the military in the past), all of whom are given various educational and economic benefits, including life-time preferences when they apply for certain available civil service jobs. These dispensations, which acknowledge the disadvantages many veterans had endured, apply to all veterans regardless of whether or not they had been economically disadvantaged by their military service, whether or not they had enlisted or been drafted, and whether or not they had even seen combat.

Complete text of Judge Henderson's ruling

Ruling by U.S. District Court Judge Thelton Henderson, Filed Nov. 27, 1996

INTRODUCTION

This matter came before the Court on Monday, November 25, 1996 on plaintiffs' Application for Temporary Restraining Order ("TRO"). In particular, plaintiffs(l) seek an order that would temporarily enjoin defendants Governor Pete Wilson and Attorney General Dan Lungren(2) from enforcing or implementing Proposition 209. After hearing extensive argument from the parties, the Court took plaintiffs' Application for TRO under submission.

This Court is mindful that any challenge to a duly enacted law should be met with caution and restraint. It is not for this, or any other, court to lightly upset the expectations of the voters. At the same time, federal courts have no role more important than to uphold the federal Constitution and ensure that the laws of our states do not violate basic constitutional rights-rights that form the very foundation of our system of democracy. That role is, of course, the same whether the law under consideration was enacted by legislators in the state capital or by voters at the ballot box. Indeed, in a case of this nature, the issue is not whether this Court should reject or respect the "will of the people." Rather, the issue is whether the challenged enactment complies with the laws of our Constitution and Bill of Rights.

This Court is also aware that whenever issues affecting race and gender enter into the electoral process, some degree of controversy is inevitable. It bears emphasizing, however, that this case does not call upon this Court to adjudicate whether affirmative action is right or wrong, or whether it is no longer an appropriate policy for addressing the continuing effects of past and present discrimination against racial minorities and women. Such questions, while they are most certainly of vital public policy interest, lie beyond the purview of this Court. Rather, the substantive issues raised by this action are considerably more narrow, albeit no less important: whether the particular method chosen by Proposition 209 to curtail affirmative action is unlawful because it violates the United States Constitution.

The focus of the instant motion is narrower still. It is only to determine whether it is appropriate to temporarily maintain the pre-election status quo for the next ten to twenty days in order to afford the Court more time to fully consider the merits of plaintiffs' challenge on a motion for preliminary injunction. It is with these considerations in mind that the Court turns to plaintiffs' Application.

LEGAL STANDARD

A party seeking a TRO must satisfy the same test required for the issuance of a preliminary injunction. See Lockheed Missile & Space Co. v. Hughes Aircraft Co., 887 F. Supp. 1320,1323 (N.D. Cal. 1995). According to Ninth Circuit precedent, to obtain a preliminary injunction, the moving party must demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the movant. Associated Gen. Contractors of Cal. v. Coalition for Econ. Equity, 950 F.2d 1401, 1410 (9th Cir. 1991), cert. denied, 503 U.S. 985 (1992). These formulations are not different tests but rather two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Id. In considering a request for a TRO, a court must remain mindful that such relief is aimed primarily at preserving the status quo pending a full hearing on a preliminary injunction. Cf. Los Anaeles Mem. Coliseum Comm'n v. National Football League, 634 F.2d 1197, 1200 (9th Cir. 1980) ("fundamental principle" governing preliminary injunctive relief is the need to maintain the status quo prior to determination on the merits). In addition, under either formulation of the test, a court in balancing the harms must take into account the public interests that are implicated by the injunctive relief sought. Caribbean arine Services Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).

DISCUSSION

As noted above, plaintiffs seek to temporarily enjoin Governor Pete Wilson and Attorney General Daniel Lungren from enforcing or implementing Proposition 209, now embodied in the California Constitution, Article I, Section 31.(3),(4)

Likelihood of Success on the Merits

"The Equal Protection Clause of the 14th Amendment guarantees racial minorities the right to full participation in the political life of the community." Washington v. Seattle Sch. Dist. No. l, 458 U.S. 457, 467 (1982). This guarantee not only prohibits the outright exclusion of women and minorities from the political process, but also prohibits more subtle distortions of the political process that place special burdens on the ability of women and minorities to achieve beneficial legislation. Id. In the words of the Supreme Court, "the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote." Id. at 476 (quoting Hunter v. Erickson, 393 U.S. 385, 393 (1969)).

Plaintiffs argue that Proposition 209, despite its facial neutrality, violates the Equal Protection Clause because it restructures the political process to disadvantage those seeking to enact affirmative action programs designed to remedy past or present discrimination against women and minorities. Relying on the Supreme Court opinions in Seattle and Hunter, plaintiffs emphasize that prior to the passage of Proposition 209, supporters of affirmative action were able to petition their state and local officials for race- and gender-conscious programs aimed at remedying discrimination. Since the passage of Proposition 209, those seeking such programs must resort to a statewide initiative to amend the California Constitution. At the same time, individuals seeking preferences based on any other ground, such as age, disability, or veteran status, continue to have access to the political process at all levels. In other words, according to plaintiffs, Proposition 209 requires that advocates of affirmative action, and no one else, must surmount a higher political hurdle.

Defendants contend that Proposition 209, by its terms, prohibits classifications based on race and gender and therefore cannot be read to create such classifications. The Supreme Court, however, has made it clear that courts must look beyond the plain language of an enactment. The relevant question is whether, in reality, the burden imposed by a law necessarily falls on minorities and women. Id. at 468. As Seattle demonstrates, an otherwise facially neutral law, if it burdens the interests of the minority and restructures the political process, may operate in reality as a racial or gender classification. The evidence presently before the Court strongly suggests that, as a result of the passage of Proposition 209, ;'the community's political mechanisms [have been] modified to place effective decision-making authority over a racial issue at a different level of government." Seattle, 458 U.S. at 474. In light of the foregoing, the Court is satisfied that plaintiffs have demonstrated a probability that this case is controlled by the analysis articulated by the Supreme Court in Washington v. Seattle School District No.1, 458 U.S. 457 (1982), and that plaintiffs have demonstrated a probability of success on their equal protection claim.(5)

Possibility of Irreparable Injury

Having demonstrated a strong probability of success on the merits, plaintiffs must also show a possibility of irreparable injury. Where the deprivation of a constitutional right is involved, courts generally hold that no further showing of irreparable injury is necessary. See Associated Gen. Contractors, 950 F.2d at 1412; l lA Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 2948.1. Plaintiffs must, nonetheless, demonstrate that constitutional harm is imminent during the brief period prior to this Court's taking up the motion for preliminary injunction.

The Court is satisfied that plaintiffs face an immediate possibility of irreparable harm. The evidence assembled by plaintiffs indicates that the Governor and Attorney General have acted with considerable dispatch in implementing Proposition 209. These prompt implementation measures, viewed in conjunction with the refusal by the Governor and Attorney General to agree to a moratorium on enforcement actions against municipalities, agencies, and other state entities,(6) adequately support plaintiffs' allegation that the class faces the possibility of immediate injury. Plaintiffs' concerns, when viewed in light of the entire record, cannot be dismissed as merely speculative. The record reflects, for example, that the Governor, on the day after the amendment's passage, attempted to invoke Proposition 209 in a state court proceeding aimed at striking down existing state affirmative action programs.(7)

Finally, this Court also finds that the balance of harms tips decidedly in favor of the moving party. The continuation for a few days of affirmative action programs already in place does not impose any undue hardship on the State of California. On the other hand, the public interest in remedying discrimination, which underlies existing governmental affirmative action programs, weighs in favor of granting a TRO.

CONCLUSION

The TRO is a preliminary action directed at maintaining the status quo until a court has an opportunity to more fully explore the merits of a case. The Court today finds that plaintiffs have demonstrated that such a TRO is appropriate, and that the pre-election status quo should be preserved until this Court can consider the parties' arguments on plaintiffs' motion for preliminary injunction.

Accordingly, and good cause appearing, defendants Governor Pete Wilson and Attorney General Daniel Lungren are HEREBY ORDERED TO SHOW CAUSE on Monday, December 16, 1996 at 10:00 a.m. in Courtroom 5, 450 Golden Gate Avenue, San Francisco, California, why you, your officers, agents, servants, employees and attorneys and those in active concert or participation with you or them should not be restrained and enjoined, pending trial on this action, from implementing or enforcing Proposition 209 insofar as said amendment to the Constitution of the State of California purports to prohibit or affect affirmative action programs in public employment, public education or public contracting.(8)

Pending hearing on the above Order to Show Cause, you, your officers, agents, servants, employees and attorneys and those in active concert or participation with you or them are HEREBY RESTRAINED AND ENJOINED, except as otherwise stated below, from implementing or enforcing Proposition 209 insofar as said amendment to the Constitution of the State of California purports to prohibit or affect affirmative action programs in public employment, public education or public contracting.

At the hearing, counsel for defendants requested that any TRO entered by this Court permit the Attorney General to (1) defend legal actions brought against state entities seeking to enforce Proposition 209, and permit the Governor to (2) continue the process of identifying state affirmative action programs potentially affected by Proposition 209. Having considered all of the circumstances, the Court grants these requests.

This Court will treat plaintiffs' memorandum in support of their Application for TRO as their opening brief in support of their Motion for Preliminary Injunction. Defendants and Defendant-Intervenor shall file their opposition thereto no later than Friday, December 6, 1996. Plaintiffs shall file their reply, if any, no later than Wednesday, December 11, 1996 at noon.(9) IT IS FURTHER ORDERED that plaintiffs' Motion to Certify a Defendant Class shall be heard on Monday, December 16, 1996 at 10:00 a.m. in Courtroom 5.(10) Defendants' opposition to said motion shall be filed no later than Friday, December 6, 1996.

IT IS FURTHER ORDERED that all papers filed in connection with this Order shall be hand-served or faxed on opposing counsel.

IT IS SO ORDERED.

DATED 11/27/96
THELTON E. HENDERSON, CHIEF JUDGE
UNITED STATES DISTRICT COURT. Return to November 27, 1996

Notes:

(1) Pursuant to the Court's oral ruling on November 25, 1996, and the Order granting provisional class certification filed simultaneously herewith, plaintiffs represent a class of all persons or entities who, on account of race, sex, color, ethnicity, or national origin, are or will be adversely affected by Proposition 209's prohibition of affirmative action programs operated by the State of California, any state or municipal agency, or any other political subdivision or governmental instrumentality of the State of California.Return

(2) For the remainder of this Order, "defendants" will be used to refer to the two defendants against whom the TRO is sought. Return

(3) At the outset, this Court must address defendants' contention that these proceedings should be stayed under the "Pullman abstention" doctrine. Railroad Comm'n. Of Tex. v. Pullman, 312 U.S. 496 (1941). After having carefully reviewed the circumstances that defendants have forwarded in support of their request for abstention, this Court chooses not to abstain. Defendants have not presented an interpretation of the challenged state law that this Court, in its discretion, believes warrants abstention. This Court, however, will revisit this area and consider all subsequent developments and arguments when it considers defendants' regularly noticed motion to abstain.Return

(4) Defendants also mount an attack on plaintiffs' standing, apparently conflating the injury requirement for standing with the injury requirement for preliminary injunctive relief. Because the Court finds that plaintiffs have demonstrated immediate irreparable injury sufficient to support a TRO, plaintiffs have plainly met the lower threshold for standing. Nevertheless, the Court will address the "injury-in-fact" requirement of standing separately. Defendants assert that none of the named plaintiffs has shown an imminent threatened injury. Notwithstanding the limitations imposed by Art. III, § 3.5 of the California Constitution, however, Proposition 209 is self-executing and imposes an affirmative duty to comply. "In this circumstance compliance is coerced by the threat of enforcement, and the controversy is both immediate and real." Lake Carriers' Association v. MacMullan, 406 U.S. 498, 508 (1972). The challenged amendment is likely to be enforced and is clearly applicable to the programs that are currently benefiting the named plaintiffs. It is not the type of statute that has lain dormant for years and is likely to remain moribund. Poe v. Ullman, 367 U.S. 497, 501 (1961). The Governor and defendantintervenor Californians Against Discrimination and Preferences, in fact, have both made moves to utilize Proposition 209 to invalidate state statutes in pending state suits. Return

(5) Defendants have failed to suggest any compelling state interest that would justify Proposition 209's restructuring of the political process. Plaintiffs also argue that Proposition 209 violates the Supremacy Clause of Article 6 of the United States Constitution. Having concluded that plaintiffs have demonstrated probable success on their Equal Protection Clause claim, the Court does not reach plaintiffs' pre-emption arguments. Return

(6) Prior to the TRO hearing, counsel for defendants declined plaintiffs' proposed stipulation that would have put implementation of Proposition 209 on hold pending the preliminary injunction hearing. During the TRO hearing, defendants' counsel confirmed his unwillingness to enter into such a stipulation, citing defendants' duty to implement and obey the provisions of the California Constitution. Return

(7) Plaintiffs also point out that to the extent Proposition 209 has placed a burden on their ability to participate in the political process this injury is immediate, ongoing, and irreparable. In response, defendants urge that, because they are not legislative actors, the political process harm is attenuated with respect to them. To the extent a law illegitimately limits access to the levers of executive power, however, such a law is no less suspect than one illegitimately curtailing access to the halls of legislative power. In addition, defendants argue that because Proposition 209 is self-executing, they are mere bystanders, not implicated by any political process burden imposed on plaintiffs. The Court cannot accept defendants' contention that victims of this sort of political process harm are necessarily precluded from preliminary relief simply because the enactment in question is denominated as "self-executing." Return

(8) Based on the complexity of the issues, the need to assemble information regarding potential oral testimony, and the absence of prejudice to the enjoined parties, the Court finds good cause to extend the duration of the TRO from December 12, 1996 until December 16, 1996. See Fed. R. Civ. P. 65(b).Return

(9) Under Fed. R. Civ. P. 43(e), a court may, in its discretion, direct that a matter be heard wholly or partly on oral testimony. The Court notes that under the framework articulated in Washington v. Seattle School Dist., the Court may be required to make certain factual determinations. For example, the Seattle doctrine only applies if the enactment at issue was "effectively drawn for racial purposes." Id. 458 U.S. at 471; see also id. at 471, 474 (finding that the Seattle initiative addressed an issue that had a "racial nature" or "a racial focus"). Any plaintiff seeking to invoke Seattle must also demonstrate that the initiative in question singles out a racial issue and removes the authority to address it from the existing decision-making body "in such a way as to burden minority interests." Id. at 474. While it appears that the taking of oral testimony may potentially assist the Court in making these determinations, the Court did not have an opportunity to fully explore this matter with counsel at the TRO hearing. Accordingly, all parties shall, no later than Monday, December 9, 1996, file a submission indicating whether the taking of such testimony would be of assistance, and if so, the nature of the testimony that the party would seek to introduce. The Court will then notify the parties if it intends to proceed with oral testimony at the Motion for Preliminary Injunction. Return

(10) Plaintiffs have represented to the Court that they intend to file such a motion on or before Wednesday, November 27, 1996. Plaintiffs' reply thereto, if any, shall be filed no later than Wednesday, December 11, 1996 at noon. Return

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