Monday, December 2, 1996
COURT:
Ruling could affect UC admissions for incoming freshmenBy A.J.
Harwin
Daily Bruin Contributor
Deciding that there is a "strong probability" that Proposition
209 violates the rights of women and minorities, U.S. District
Judge Thelton Henderson imposed a temporary restraining order late
Wednesday, barring the law from dismantling state-imposed
affirmative action.
The order is a preliminary action directed at maintaining the
status quo until the courts have an opportunity to more fully
explore the merits of a case.
"Courts must look beyond the plain language of an enactment,"
Henderson wrote in his decision. "The relevant question is whether,
in reality, the burden imposed by a law necessarily falls on
minorities and women."
The order will block the enforcement of the law until Dec. 16,
when the federal court will hold a hearing to determine if any
injunctions against the initiative will be issued.
Voters passed the initiative, which prohibits discrimination and
preferential treatment to individuals on the basis of race, gender
or ethnicity in state employment and contracting, in November with
54 percent approval.
The order left all state-run systems in limbo, including the
University of California, whose applications for the Fall 1997
class were due on Sunday.
Late last week, American Civil Liberties Union lawyers moved to
make sure that the nine-campus UC system leaves affirmative action
policies in place long enough to affect the incoming freshman
class, the Los Angeles Times reported.
While the Board of Regents effectively ended affirmative action
policies at the university beginning with the class entering in
Fall 1998, UC administrators moved to abolish the policy the day
after Proposition 209’s passage. Immediate enforcement of the law
would bar affirmative action criteria from the admissions process
for next year’s class  exactly what the ACLU hopes to
prevent.
"We have filed today’s motion to preserve the status quo. …
Existing affirmative action programs  including those at UC
 should remain in place," said Ed Chen, a staff attorney with
the ACLU.
Although experts on both sides said that the ruling would have
little effect on the national debate over the merits of affirmative
action, the move angered several high-ranking state officials while
giving opponents of the initiative reason to celebrate.
"Proposition 209 has been stopped in its tracks. Thanksgiving
came a day early in California," said Mark Rosenbaum, legal
director of the ACLU of Southern California, at a news conference
in Los Angeles. "Proposition 209 represents the most far-reaching
attack on civil rights legislation in the history of this
republic."
At the same time, those for Proposition 209 were not dismayed by
the setback and were optimistic that the amendment to the state’s
constitution  and the voice of the popular majority Â
will be upheld.
"We are not surprised or dismayed by the temporary restraining
order. Virtually all successful ballot measures in California face
legal challenge and we fully expected litigation over Proposition
209," said Tom Wood, one of the initiative’s authors. "Unlike
Proposition 187, Proposition 209 is short, direct and addresses
principles already upheld by the courts."
Other initiative supporters said that opponents of Proposition
209 are attempting to defeat in courts a measure passed by a
majority of voters. "The proponents of Proposition 209 intend to
assist Attorney General Dan Lungren and Governor Pete Wilson to
ensure that this does not happen," said Glynn Custred, co-author of
Proposition 209. "We will also be working to ensure that the
proposition is properly implemented at the local government
level."
Wilson blasted the order, saying that the ruling may violate the
Equal Protection Clause of the 14th Amendment. "Proposition 209
prohibits discrimination against all races and surely cannot be
considered a violation of the 14th Amendment, which was designed to
prohibit all racial discrimination," Wilson said.
"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," he added.
Carol Codrington, a partner with the Los Angeles law firm
Mallory & Brown-Curtis and panelist at three UCLA seminars on
affirmative action, said Henderson’s ruling was the right thing to
do in light of the language of the law.
"I think it is an appropriate ruling because I have concerns
whether the bill should be used to dismantle all of affirmative
action or only the abuses of affirmative action," Codrington said.
"A total ban goes too far, but I think we need to restructure the
system so that there are no quotas  a certain number of any
sex or race. Affirmative action should be refined as opposed to
eliminated so that the abuses are eliminated."
With reports from Daily Bruin wire services.