Affirmative Action Ruling May Spur Rollback Efforts

The decision by a federal appeals court to uphold California's initiative barring affirmative action will embolden attempts to curtail the program nationwide.

Even though the decision is being appealed, both supporters and opponents agree the ruling will likely reinvigorate initiative drives in other states. At the same time, it promises to revive a proposed federal law to end race and gender preferences, originally introduced in the last session of Congress.

"The decision puts a little spine in those states that have been wondering if they should enter the arena," says Ward Connerly, the University of California regent who led the fight to pass California's Proposition 209.

Already, efforts to put such measures up for voter approval are under way in Washington, Colorado, Florida, and Arizona.

President Clinton, who defends the need for some form of preferences for women and minorities to help overcome the effects of discrimination, was unhappy over the decision Tuesday by the US Court of Appeals for the Ninth Circuit. If the judgment is upheld on appeal, "we'll all have to regroup and find new ways to achieve the same objective," the president said.

Constitutional clash

The three-judge panel announced a unanimous decision to reverse a temporary injunction against implementing Proposition 209 that federal judge Thelton Henderson issued in late December. The proposition, passed by voters last November, bars discrimination or preferential treatment in public employment, education, or government contracting.

The measure would preclude a wide variety of affirmative-action programs, such as those for university admissions and those to aid minorities or women who have been victims of discrimination.

In issuing the injunction, Judge Henderson lent support to civil-rights groups that argued the proposition violated the Equal Protection Clause of the 14th Amendment of the Constitution. The Supreme Court has ruled that under strictly defined circumstances, some programs to redress discrimination are constitutional.

But the Ninth Circuit panel strongly rejected Henderson's decision. "Proposition 209 does not violate the US Constitution," wrote Judge Diarmuid O'Scannlain. "It is one thing to say that individuals have equal protection rights against political obstructions to equal treatment. It is quite another to say that individuals have equal protection rights against political obstructions to preferential treatment."

"It is not a surprising interpretation," says Robert Post, constitutional law professor at University of California Berkeley's Boalt Law School. "This is an accurate reading of the tenor of the Supreme Court's recent opinions in the area of affirmative action."

Where it goes from here

"The decision is a grave disappointment," says Mark Rosenbaum, legal director at the American Civil Liberties Union. The plaintiffs announced they will seek, within 14 days, a review of the ruling by the entire Ninth US Court of Appeals. If approved, 11 randomly selected members of the court would carry out a so-called "en banc" review.

A decision to conduct such a review is unusual, say legal experts. But given the extraordinary legal and political importance of this issue, the Ninth Circuit, widely considered the most politically divided federal court in the country, may well decide to take up the review.

"My guess is an en banc reversal would be an extraordinary thing," says Boalt Hall law scholar Franklin Zimring.

But much could depend on the composition of the review panel, given the presence of a number of liberal Democratic-era appointees on the Ninth Circuit. In any case, an appeal to the US Supreme Court is likely, though it is far from clear whether the court will elect to review the Ninth Circuit decision, says Mr. Post.

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