The status of Proposition 209
by Kimberly Pate, Equal Rights Advocates

On November 6, 1996, the day after voters passed proposition 209 - the anti-affirmative action measure - a class action lawsuit challenging the constitutionality of Proposition 209 was filed in U.S. District Court in San Francisco by the ACLU Foundations of Northern and Southern California, Equal Rights Advocates, the Lawyers' Committee for Civil Rights, the Employment Law Center and other civil rights groups.  The case, Coalition for Economic Equity vs. Wilson was filed on behalf of a coalition of minority and women contractors, employees, students and educators.  The coalition claims that Proposition 209 injures them by preventing them from seeking redress from the government for acts of discrimination.  They also claim that Proposition 209 conflicts with well-established federal civil rights laws that prohibit race or gender-based discrimination in schools and the workplace.

After a hearing on November 25, U.S. District Court Judge Thelton Henderson issued a Temporary Restraining Order (TRO) temporarily preventing Governor Wilson and Attorney General Dan Lungren from implementing Proposition 209 as law.  The TRO was subsequently expanded to include the University of California, and then further expanded to include all state and local government agencies covered by the law.  Following a December 16, 1996 hearing, Judge Henderson granted the plaintiffs request for a preliminary injunction barring the enforcement of Proposition 209.

The Court's 67-page order granting the preliminary injunction states that the plaintiffs have "demonstrated a probability of success on their claim that Proposition 209 violates the Fourteenth Amendment's equal protection guarantee to full participation in the political life of the community," and a likelihood of success that Proposition 209 violates Title VII of the 1964 Civil Rights Act.  The preliminary injunction means that Proposition 209 cannot be put into effect until there is a final determination of its constitutionality.

The preliminary injunction applies to all state and local governments throughout California.  It prevents Governor Pete Wilson, Attorney General Dan Lungren, the University of California, cities, counties, school boards, transit authorities and all other public entities in California from implementing Proposition 209.

The preliminary injunction ruling has been appealed to the Ninth Circuit Court of Appeals by the Governor, the Attorney General and by the proponents of Proposition 209.  A hearing is scheduled for February 10, 1997.  No trial date has been set in the case.

Meanwhile, on December 20, 1996, the Clinton Administration announced that it will intervene in the Proposition 209 challenge litigation.  The U.S. Justice Department is in agreement with the coalition that the measure is unconstitutional because it unlawfully excludes women and minorities from opportunities open to other groups.  At the end of January, the Justice Department filed a friend of the court, or amicus brief offering additional legal support for upholding the preliminary injunction.  Civil rights groups praised the Administration's decision to participate in the challenge to Proposition 209 as a ringing endorsement of its unconstitutionality.

Equal Rights Advocates is available to make presentations to your organizations about the status of the Proposition 209 challenge litigation and of affirmative action and policies, generally.  If you would like more information about ERA's Affirmative Action Public Education Campaign, please call Linda Weiner, Project Director, at Equal Rights Advocates, (415) 621-0672, ext. 20.