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U.S. court backs ban in Calif. on preferences Ruling strikes blow to affirmative action


WASHINGTON -- In a dramatic victory for opponents of affirmative action, a federal appeals court upheld yesterday the constitutionality of California's Proposition 209, a wide-ranging ban on preferences for women and minorities in the state's programs and education.

Ruling unanimously that states have broad power to undo affirmative action that bestows special advantages based on race and sex, a three-judge panel of the 9th U.S. Circuit Court of Appeals cleared the way for enforcement of one of the most far-reaching social experiments in years.

The decision was written in such sweeping language, in fact, that it implied that Congress, too, would have authority under the Constitution to bar federal race and sex preferences if it wished.

The dispute over Proposition 209 appears destined to wind up in the Supreme Court in less than a year. Its challengers vowed yesterday to go that far if necessary to overturn it.

The appeals court wiped out a federal judge's order late last year that barred Proposition 209 from taking effect, weeks after 54 percent of California voters had approved it. The enforcement of yesterday's ruling could begin in 21 days. But it is expected to be postponed once challengers ask the full 11-member Court of Appeals to rehear the dispute.

The ruling was a flat rejection of the argument by civil rights groups and their allies in the Clinton administration that Proposition 209 put women and members of minority groups at a disadvantage, compared with veterans, the disabled and the elderly, in seeking preferences from state or local government.

The popular will of the state's voters, the appeals court said, had been frustrated by the federal judge for reasons not found in constitutional law. The appeals court observed acidly:

"A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."

The ruling "sends a strong, clear signal that the people of California were right when they stated that there should be no discrimination," said Sean Walsh, a spokesman for Gov. Pete Wilson, a Republican who is the leading supporter of Proposition 209 in the state government.

Kweisi Mfume, president of the National Association for the Advancement of Colored People, which opposes Proposition 209, said in Baltimore that "we are hopeful that an appeal to the full Circuit Court of Appeals would be successful." But Mfume said that civil rights groups would seek new legislation in California to try to overturn the appeals court ruling.

The key to the appeals court ruling was its conclusion that Proposition 209 does not discriminate against nonwhites and women, but rather is a constitutionally valid attack on discriminatory favoritism.

The measure is aimed, the three judges said, at government action that "prefers individuals on account of their race or gender." Such action, they added, "correspondingly disadvantages individuals who fortuitously belong to another race or to the other gender."

The Constitution "guarantees that the government will not classify individuals on the basis of impermissible criteria," the court said. Proposition 209 is simply meant to implement that guarantee, it said.

The court went on to rule that the measure is not unconstitutional even though it would require women and members of minority groups who seek preferences to persuade a majority of voters across the state, instead of individual local governments, to allow affirmative action.

Proposition 209, the appeals court noted, was approved by the voters of California, and women and members of minority groups together make up a majority of the state electorate.

"Is it possible," the court asked rhetorically, "for a majority of voters impermissibly to stack the political deck against itself?"

The appeals court "fashioned an opinion that can be a pillar of jurisprudence" for those attacking race and sex preferences across the nation, said Clint Bolick, legal director of the Institute for Justice in Washington. The ruling, Bolick predicted, will be "a shot of adrenalin for similar efforts in other states."

"I believe passage of federal legislation affirming equality for all Americans is not far behind," said Rep. Charles T. Canady, a Florida Republican who opposes affirmative action and is chairman of a House Judiciary subcommittee on the Constitution. Canady said he would soon introduce a bill to ban race and sex preferences in federal programs.

President Clinton opposes a total ban, and his administration has joined the opposition in court to Proposition 209. The president has conceded, though, that some forms of affirmative action are not justified in their scope.

Yesterday, reacting to the new court decision, Clinton repeated his comment about affirmative action that "mend it, don't end it" is "the best thing for America."

Mark Rosenbaum, legal director of the American Civil Liberties Union of Southern California, one of the challengers to Proposition 209, called the ruling "a grave disappointment."

It is "obviously and dramatically incompatible with decades of mainstream Supreme Court decisions guaranteeing equal opportunities" for men and women in political life, education, jobs and contracting, Rosenbaum said.

The 39-page ruling was written by Judge Diarmuid F. O'Scannlain of Portland and was joined by Judges Edward Leavy of Portland and Andrew J. Kleinfeld of Fairbanks, Alaska.

Pub Date: 4/09/97

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