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Judge halts ban on affirmative action He says Calif. initiative likely is unconstitutional


SAN FRANCISCO -- Dealing another blow to opponents of affirmative action, a federal judge yesterday blocked enforcement of Proposition 209 indefinitely, ruling that the initiative passed by 54 percent of California voters is probably unconstitutional.

U.S. District Court Judge Thelton E. Henderson granted a preliminary injunction that prevents the state from implementing the November ballot measure pending a trial or ruling on its legality.

"It is not for this or any other court to lightly upset the expectations of the voters," Henderson wrote in a 67-page ruling. "At the same time, 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."

Henderson, a former civil rights lawyer, had previously issued a temporary restraining order against the measure. But an injunction carries more legal weight because it stays in effect until the case is resolved or until a higher court overturns it.

State lawyers will appeal the injunction and a lengthy legal fight is expected. California Gov. Pete Wilson said he was "deeply disappointed" by Henderson's decision, but declared that it came as "no surprise" that a judge who served on the American Civil Liberties Union board 20 years ago would "endorse the ACLU's Orwellian argument.

"This decision, however, will not stand," Wilson said.

While awaiting a ruling on the injunction from a higher court, state officials have said they will press Henderson to decide the case as quickly as possible in hopes that the U.S. Supreme Court can review it within two years. A majority of the Supreme Court has been dubious of affirmative action, and supporters of Proposition 209 are hopeful that the measure would be declared constitutional by the high court.

In blocking the measure, Henderson wrote that civil rights lawyers demonstrated a "probability of success" in their claim that the initiative violates equal protection guarantees and a "likelihood of success" with the argument that it illegally interferes with federal civil rights policy.

Henderson stressed that his ruling does not determine whether affirmative action is right or wrong or affect the ability of government entities to repeal affirmative action programs voluntarily. Rather, he said, the problem lies with "the particular method" Proposition 209 uses to ban affirmative action.

Pub Date: 12/24/96

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