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California voters passed the anti-affirmative action initiative, Proposition 209, in November 1996. U.S. District Judge Thelton Henderson issued a preliminary injunction December 23, 1996 blocking the implementation and enforcement of Proposition 209, citing the law would violate equal protection guarantees for California's women and minorities. The judge also concluded that the law discriminates by banning "constitutionally permissible" affirmative action programs.
COALITION FOR ECONOMIC EQUITY, et al., Plaintiffs,
v.
PETE WILSON, et al., Defendants.
No. C 96-4024 TEH
In The United States district court for the northern district of California
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER RE
PRELIMINARY INJUNCTION
THELTON HENDERSON, CHIEF JUDGE UNITED STATES
DISTRICT COURT:
I.INTRODUCTION
This action presents a challenge to the constitutionality of newly-enacted
Article 1, section 31 of the California Constitution. This measure, which
appeared on the ballot as Proposition 209, was passed by the California
electorate on November 5, 1996. It provides in relevant part as follows:
The state shall not discriminate against, or grant preferential treatment to,
any individual or group on the basis of race, sex, color, ethnicity, or
national origin in the operation of public employment, public education, or
public contracting.
Cal. Const. art. 1, section 31(a).[FOOTNOTE 1]
It is important to note at the outset that much of this language simply
reaffirms existing anti-discrimination protections already provided by the
United States and California Constitutions, and by the 1964 Civil Rights
Act. These laws have long-guaranteed all persons "equal protection of the
law," and prohibited discrimination in employment and in any program or
activity receiving federal assistance.[FOOTNOTE 2] This aspect of
Proposition 209-which creates no change in existing law-is not at issue in
this case. Indeed, it could hardly be more clear that a law that merely
affirms the non-discrimination principles in our Constitution is, itself,
constitutional.
It is also undisputed that the Constitution precludes voluntary,
government-sponsored race and gender "preferences" except in the most
limited circumstances. Thus, government entities were already barred,
prior to Proposition 209, from using race-conscious "preferences," e.g.
race-conscious affirmative action programs, unless they could pass the
most exacting "strict scrutiny" required by the Fourteenth Amendment.
Under this test, only those programs that are "narrowly tailored" and
"necessary to break down patterns of deliberate exclusion" perpetuated by
the enacting agency are permitted. City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 509 (1989)(emphasis added).[FOOTNOTE 3] Quotas are
not permitted. See, e.g., Regents of the Univ. of Calif. v. Bakke, 438 U.S.
265 (1978). Gender-based programs, under existing law, are also subject
to a heightened level of scrutiny. U.S. v. Virginia, 116 S.Ct. 2264, 2275
(1996).
In short, Congress and the courts had already prohibited discrimination,
and sharply constrained government use of race and gender preferences,
long before Proposition 209 was enacted on November 5, 1996. The
parties do not dispute, however, that the people of California meant to do
something more than simply restate existing law when they adopted
Proposition 209. It is this "something more" that is the focus of this action.
To be sure, the outer boundaries of this "something more" have yet to be
determined. It is clear, however, that the primary change Proposition 209
makes to existing law is to close that narrow but significant window that
permits the governmental race- and gender-conscious affirmative action
programs described above that are still permissible under the United States
Constitution. Notably, defendants agreed at oral argument that Proposition
209 prohibits at least some of these constitutionally permissible programs.
They also failed to identify any other programs that would be affected by
Proposition 209.
It is thus essential to keep in mind that plaintiffs' constitutional challenge
to Proposition 209 is not, in fact, a facial challenge to the entire initiative.
Rather, it is much narrower in scope: it is a challenge only to that slice of
the initiative that now prohibits governmental entities at every level from
taking voluntary action to remediate past and present discrimination
through the use of constitutionally permissible race- and gender-conscious
affirmative action programs.[FOOTNOTE 4]
Plaintiffs assert that this specific aspect of Proposition 209 violates the
United States Constitution on two separate grounds. First, they allege that
Proposition 209, although couched in neutral terms, violates the
Fourteenth Amendment's equal protection guarantee of "the right to full
participation in the political life of the community." Washington v. Seattle
School Dist. No. 1, 458 U.S. 457, 467 (1982); see also Romer v. Evans,
116 S. Ct. 1620, 1628 (1996) ("Central to our own Constitution's
guarantee of equal protection is the principle that government in each of its
parts remain open on impartial terms to all who seek its assistance.").
Proposition 209 violates this guarantee, they argue, because it restructures
the political process in a nonneutral manner. Specifically, it erects unique
political hurdles only for those seeking legislation intended to benefit
women and minorities-who must now obtain a constitutional amendment-
while allowing those seeking preferential legislation on any other ground
unimpeded access to the political process at all levels.
Second, plaintiffs allege that Proposition 209 violates the Supremacy
Clause of the United States Constitution because it interferes with
Congress' intent that employers be afforded the option of utilizing
constitutionally permissible race- and gender-conscious affirmative action
to comply with their obligations under Titles VI and VII of the Civil
Rights Act of 1964, and Title IX of the Education Amendments of 1972.
The immediate issue before the Court is whether plaintiffs[FOOTNOTE 5]
have satisfied their burden of demonstrating that defendants[FOOTNOTE
6] should be preliminarily enjoined from enforcing or implementing
Proposition 209 pending a final determination of the merits of this action.
In weighing this matter, the Court is mindful that any challenge to a duly-
enacted law should be met with caution and restraint. It is not for this or
any other court to lightly upset the expectations of the voters. 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.
Thus, the issue is not whether one judge can thwart the will of the people;
rather, the issue is whether the challenged enactment complies with our
Constitution and Bill of Rights. Without a doubt, federal courts have no
duty more important than to protect the rights and liberties of all
Americans by considering and ruling on such issues, no matter how
contentious or controversial they may be. This duty is certainly
undiminished where the law under consideration comes directly from the
ballot box and without the benefit of the legislative process. As the
Supreme Court aptly noted in another socially-charged case:
Nor does the implementation of change through popular referendum
immunize it [from constitutional scrutiny]. The sovereignty of the people
is itself subject to those constitutional limitations which have been duly
adopted and remain unrepealed.
Hunter v. Erickson, 393 U.S. 385, 393 (1969).
It also cannot be overemphasized that this case does not call upon this
Court to adjudicate whether affirmative action is right or wrong, or
whether it is no longer an appropriate policy for addressing the continuing
effects of past and present discrimination against racial minorities and
women. Such questions, while they are most certainly of vital public
policy interest, lie beyond the purview of this Court. Nor does this case
implicate the ability of governmental entities to voluntarily repeal
affirmative action policies, as the Regents of the University of California
did earlier this year.
Rather, the substantive issues raised by this action are considerably more
narrow, albeit no less important: whether the particular method chosen by
Proposition 209 to curtail affirmative action is unlawful because it either
(1) violates the rights of women and minorities to fully participate in our
political system or (2) interferes with Congressional goals embodied in
Titles VI and VII of the Civil Rights Act of 1964 and Title IX of the
Education Amendments of 1972.
In the discussion that follows, this Court first addresses the question of
whether plaintiffs have standing to bring this action. The Court then turns
to the appropriate standard governing plaintiffs' motion for a preliminary
injunction, which is followed by this Court's Findings of Fact and
Conclusions of Law, with respect to that motion, as required by Fed. R.
Civ. P. 65.
Based on these Findings and Conclusions, this Court rules that:
(1) Plaintiffs have standing to bring this action.
(2) 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.
(3) Plaintiffs have failed to demonstrate a likelihood of success on their
claim that Proposition 209 violates the Supremacy Clause because it
conflicts with, and is thus preempted by, Title VI of the 1964 Civil Rights
Act and Title IX of the Education Amendments of 1972.
(4) Plaintiffs have demonstrated a likelihood of success on their claim that
Proposition 209 violates the Supremacy Clause because it conflicts with,
and is thus preempted by, Title VII of the 1964 Civil Rights Act.
(5) Plaintiffs have demonstrated that a preliminary injunction is necessary
to protect the plaintiff class from the possibility of irreparable injury.
Accordingly, the Court grants plaintiffs' Motion for Preliminary
Injunction, and enjoins defendants, pursuant to the injunction following
these Findings and Conclusions, from enforcing and implementing
Proposition 209 pending trial or final judgment in this action.
II. STANDING
A "threshold question in every federal case [is] whether the plaintiff has
stated a 'case or controversy' between himself and the defendant within the
meaning of Article III." Warth v. Seldin, 422 U.S. 490, 498 (1975). The
core component of whether a case or controversy under Article III exists is
the doctrine of standing. Allen v. Wright, 468 U.S. 737, 751 (1984). The
Supreme Court has established three elements necessary to meet the
Article III standing requirement. First, the plaintiff must have suffered an
"injury in fact"-"[t]he plaintiff must show that he 'has sustained or is
immediately in danger of sustaining some direct injury' and the injury or
threat of injury must be both 'real and immediate,' not 'conjectural' or
'hypothetical.'" City of Los Angeles v. Lyons, 461 U.S. 95, 101-102
(1983). Second, the injury must be a result of the challenged conduct. See,
e.g. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) ("The injury
has to be 'fairly traceable to the challenged action of the defendant and not
the result of the independent action of some third party not before the
court."). Finally, a plaintiff must show a likelihood that a favorable
decision will redress the injury. Id.
Here, defendants assert that none of the plaintiffs shows an imminent
threatened injury. Notwithstanding the limitations imposed by article 3,
section 3.5 of the California Constitution,[FOOTNOTE 7] however,
Proposition 209 is a self-executing amendment to the California
Constitution that imposes an affirmative duty to comply. "In this
circumstance compliance is coerced by the threat of enforcement, and the
controversy is both immediate and real." Lake Carriers' Association v.
MacMullan, 406 U.S. 498, 508 (1972).
Plaintiffs have shown a real and immediate threat of injury. Proposition
209 is clearly applicable to statutes and programs that are currently
benefitting the named plaintiffs and it is virtually certain to be enforced.
The amendment was recently enacted and is not a statute that has lain
dormant for years and likely to remain moribund. See Poe v. Ullman, 367
U.S. 497, 501 (1961). Further, the Governor has already made moves to
employ article 1, section 31, to invalidate certain state statues in a pending
civil action. Wilson v. State Personnel Board, 96-CS01082 (App. to File
Mot. to Amend, Nov., 6 1996). Moreover, a conflict between the plaintiffs'
interests and the challenged amendment is inevitable. Babbitt v. United
Farm Workers Nat'l Union, 442 U.S. 289, 297-305 (1979) ("One does not
have to await the consummation of threatened injury to obtain preventive
relief. If the injury is certainly impending, that is enough."); cf. Steffel v.
Thompson, 425 U.S. 452, 459 (1974) (a plaintiff need not first expose
himself to actual arrest or prosection before challenging the
constitutionality of a criminal statute).
The constitutional injury asserted by the plaintiffs is directly connected to
the actions of the defendants. See S. v. D., 410 U.S. 616, 618 (1973)
(quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)) ("The party
who invokes judicial power must be able to show that he has sustained or
is immediately in danger of sustaining some direct injury as a result of a
statute's enforcement."). Two of the defendants, and now class
representatives, the California Governor and Attorney General, are
explicitly charged with the task of enforcing the laws of the state. The
other defendants are governmental entities that are under a duty to apply
the amendment to existing statutes, ordinances, and regulations. Plaintiffs
have shown that they will suffer the alleged constitutional injury when any
one of the defendants enforces the constitutional amendment.
Finally, since the constitutional injury to the plaintiffs is allegedly caused
by the enforcement of Proposition 209, plaintiffs' requested remedy, a
declaration that the Proposition is unconstitutional and unenforceable,
would unquestionably address the plaintiffs' alleged injuries. See Allen v.
Regan, 468 U.S. 737, 753, n.19 (1984) (the redressability requirement
"examines the causal connection between the alleged injury and the
judicial relief requested").
By demonstrating imminent injury attributable to the actions of the
defendants that will be redressed by a favorable decision by this Court,
plaintiffs have met the requirements for standing under the Article III
"case or controversy" clause.[FOOTNOTE 8]
III. PRELIMINARY INJUNCTION STANDARD
According to Ninth Circuit precedent, in order to obtain a preliminary
injunction, the moving party must demonstrate either (1) a combination of
probable success on the merits and the possibility of irreparable injury, or
(2) that serious questions are raised and the balance of hardships tips
sharply in favor of the movant. Associated General Contractors, 950 F.2d
at 1410. These formulations are not different tests but rather two points on
a sliding scale in which the degree of irreparable harm increases as the
probability of success on the merits decreases. Id. In considering a request
for a preliminary injunction, a court must remain mindful that such relief
is aimed primarily at preserving the status quo pending trial. See Los
Angeles Mem. Coliseum Comm'n v. National Football League, 634 F.2d
1197, 1200 (9th Cir. 1980) ("fundamental principle" governing
preliminary injunctive relief is the need to maintain the status quo prior to
determination on the merits). Under either formulation of the test, a court,
in balancing the harms, must also take into account any public interests
implicated by the injunctive relief sought. Caribbean Marine Services Co.
v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).
Because the plaintiffs here allege that they suffer constitutional injury at
the hands of Proposition 209, the Court must evaluate the merits of their
constitutional claims before it can meaningfully address the irreparability
and imminence of any harm. See Bery v. City of New York, 906 F. Supp.
163, 166 (S.D.N.Y. 1995) (where constitutional injury is alleged, "the two
prongs of the threshold showing required for injunctive relief merge into
one"), rev'd on other grounds, 97 F.3d 689 (2d Cir. 1996).
IV.FINDINGS OF FACT
The following Findings of Fact are based on the preliminary record
presently before the Court.
A. Characterization of Proposition 209
After qualifying as an initiative constitutional amendment, Proposition
209 was placed on the California general election ballot for November 5,
1996.
Prior to the election, each registered voter received an official California
Ballot Pamphlet prepared by the non-partisan California Legislative
Analyst's Office ("LAO").[FOOTNOTE 9] This Pamphlet, which provided
an official description and analysis of each statewide initiative, portrayed
Proposition 209 as a measure that would eliminate race- and gender-
conscious affirmative action programs in the public sector.[FOOTNOTE
10] Accordingly, the California Ballot Pamphlet explained to voters that:
A YES vote on [Proposition 209] means: The elimination of those
affirmative action programs for women and minorities run by the state or
local governments in the areas of public employment, contracting, and
education that give "preferential treatment" on the basis of sex, race, color,
ethnicity, or national origin.
A NO vote on this measure means State and local government affirmative
action programs would remain in effect to the extent they are permitted
under the United States Constitution.
Pls. Exh. 2 (emphasis in original).
In addition to this brief summary, the Ballot Pamphlet also provided voters
with a more extensive analysis of Proposition 209, which underscored that
the initiative would effectively eliminate race- and gender-conscious
affirmative action programs. Specifically, the LAO explained Proposition
209 and its effects as follows:
[F]ederal, state, and local governments run many programs intended to
increase opportunities for various groups-including women and racial and
ethnic minority groups. These programs are commonly called "affirmative
action" programs .
If [Proposition 209] is approved by the voters, it could affect [the
following programs] .
Public Employment and Contracting
The measure would eliminate affirmative action programs used to increase
hiring and promotion opportunities for state or local government jobs,
where sex, race, or ethnicity are preferential factors in hiring, promotions,
training or recruitment decisions. In addition, the measure would eliminate
programs that give preference to women-owned or minority-owned
companies on public contracts .
Public Schools and Community Colleges
[T]he measure could eliminate, or cause fundamental changes to,
voluntary desegregation programs run by school districts . Examples of
desegregation spending that could be affected by the measure include the
special funding given to (1) "magnet" schools (in those cases where race
or ethnicity are preferential factors in the admission of students to the
schools), and (2) designated "racially isolated minority schools" that are
located in areas with high proportions of racial or ethnic minorities .
In addition, the measure would affect a variety of public school and
community college programs such as counseling, tutoring, outreach,
student financial aid, and financial aid to selected school districts in those
cases where the programs provide preferences to individuals or schools
based on race, sex, ethnicity, or national origin .
University of California and California State University
The measure would affect admissions and other programs at the state's
public universities. For example, the California State University ("CSU")
uses race and ethnicity as factors in some of its admissions decisions. If
this initiative is passed by the voters, it could no longer do so .
Id. (emphasis in original). As the above reflects, the only programs
identified by the LAO as potentially affected by Proposition 209 are race-
and gender-conscious affirmative action programs.
The California Ballot Pamphlet also included partisan arguments
submitted by proponents and opponents of the initiative. These arguments
further established that the issue at stake in Proposition 209 was the
continuation of public sector race- and gender-conscious affirmative action
programs. The Argument In Favor Statement begins by instantly focusing
the reader on the issue of affirmative action:
A generation ago, we did it right. We passed civil rights laws to prohibit
discrimination. But special interests hijacked the civil rights movement.
Instead of equality, governments imposed quotas, preferences, and set-
asides.
Pls. Exh. 3. The next paragraph quotes the facially-neutral language of the
initiative but then immediately returns to the issue of affirmative action,
with a particular emphasis on race-conscious affirmative action:
"REVERSE DISCRIMINATION" BASED ON RACE OR GENDER IS
PLAIN WRONG! . [S]tudents are being rejected from public universities
because of their RACE. Job applicants are turned away because their
RACE does not meet some "goal" or "timetable." Contracts are awarded to
high bidders because they are of the preferred RACE Proposition 209 will
stop [these] terrible programs .
Id. (emphasis in original).[FOOTNOTE 11]
The Argument Against Statement also focused attention on Proposition
209's impact on affirmative action programs beneficial to women and
minorities. The argument warns that:
Proposition 209 will eliminate affirmative action programs that help
achieve equal opportunity for women and minorities .
and concludes by stating that Proposition 209:
poses as an equal opportunities initiative, but [it] puts at risk every
outreach program, sets back the gains made by women and puts the brakes
on expanding opportunities for people in need.
Id. (quoting General Colin Powell).
B. Election Results and Response by Defendants
On November 5, 1996, the voters of California enacted Proposition 209
into law, with 4,736,180 votes (54%) cast in favor of the initiative and
3,986,196 votes (46%) cast in opposition.[FOOTNOTE 12] Because the
initiative is by its terms self-executing, public entities around the State
faced the immediate question of implementation. Three of the defendants
in this action responded by quickly acting to implement and enforce
Proposition 209. On November 6, 1996, Governor Wilson issued an
Executive Order (W-136-96) requiring state agencies to promulgate
implementing regulations and identify all state statutes and programs
pertaining to employment, education or contracting that grant or encourage
preferences based on race, sex, color, ethnicity or national
original.[FOOTNOTE 13] That same day, Attorney General Lungren
instructed state agencies to comply immediately with Proposition 209 to
the extent permitted by California law.[FOOTNOTE 14] The University
of California also promptly took steps to implement Proposition 209. See
Dec. 6, 1996 Order at 2.[FOOTNOTE 15] Other defendants expressed
uncertainty and confusion regarding the appropriate response to the
initiative. See Response of Defendant City of Pasadena to Plaintiffs'
Request for Temporary Restraining Order at 2 ("[C]omplex questions now
exist about how to reconcile the competing and seemingly conflicting
requirements of federal, state and local affirmative action policies. These
are issues which this City cannot resolve on its own.").
C. Effect of Proposition 209 on Affirmative Action Programs
Any California public entity that implements Proposition 209 is required
to end voluntary race- and gender-conscious affirmative action programs
in three areas: contracting, employment, and education. We thus briefly
review each of these areas in turn.[FOOTNOTE 16]
1. Contracting
Race- and gender-conscious affirmative action programs in California in
the area of public contracting have taken various forms, from requiring
that prime contractors make good-faith efforts to utilize women- or
minority-owned subcontractors to providing an advantage in evaluating
bids. These programs are designed to address the continuing effects of past
or present bias against the use of women- and minority-owned contractors
on public sector projects. According to the evidence before the Court, their
effect has been to provide such contractors with substantial opportunities
not previously available.
The experience of Antonio Ruiz provides one such example. Mr. Ruiz
owns Ruiz Construction Company & Associates which engages in general
engineering and construction work. Amended Ruiz Decl. filed in support
of amicus para. 2. It is Mr. Ruiz' experience that "contractors accept the
bids of those contractors with whom they have established ties." Id. para.
8. In 1985, Ruiz qualified to participate in the city of San Francisco's
voluntary affirmative action program, which was adopted to remedy past
discriminatory practices by the city in its letting of contracts. Prior to this
time, Ruiz was unable to "get many large contractors to even accept [his]
bids for subcontract work," and he in fact had obtained "only one
contracting job with the City." para.para. 7-8. By participating in the City's
affirmative action program, he was able to break through the old patterns
of doing business and obtain subcontracts. para.para. 10-11. The exposure
he gained led to additional business with prime contractors, and allowed
him to build his business substantially and "form joint ventures to bid as a
prime contractor on City contracts." para.para. 12-14. See also Fung Decl.
para. 4 (affirmative action in public contracting has reduced discrimination
against Asian American contractors and made it possible for them to bid
competitively for public contracts); Wu Decl. at 144-145 (affirmative
action in public contracting has substantially benefitted Asian Americans);
Burns Decl. para. 4 (women-owned painting and wallpapering company
benefitted substantially from San Francisco affirmative action contracting
program); Chavez Decl. para.para. 3-4 (describing how affirmative action
in public contracting programs allowed him to break through the "old boy
network" and obtain public contracts); Larson Decl. para. 16 (disparities
between the availability of women- and minority-owned contractors and
their use by public agencies "are noticeably reduced where government
agencies implement affirmative action policies"), para. 20 (after Los
Angeles adopted affirmative action programs, percentage of women
businesses obtaining city contracts increased from 0.3% to 8% and
percentage of minority businesses obtaining city contracts increased from
2% to 11.8%).
The record further demonstrates that implementation of Proposition 209
would substantially reduce opportunities in public contracting for women
and minorities. Larson Decl. para. 17 (discussing studies showing that race
or gender neutral programs designed to address underutilization of
minority and women contractors were generally ineffective), para. 21;
Chavez Decl. para. 5 (estimating that absent affirmative action program
"his firm would lose up to 50 to 75% of" its public contracting work);
Leonard Decl. para. 15 (discussing a study finding "not only a stagnation
but a reversal of advances" for African-Americans under "weak"
affirmative action programs).
2. Employment
Race- and gender-conscious affirmative action programs in California in
the area of public employment generally allow an employer to consider the
ethnicity or gender of an otherwise qualified applicant as one of many
factors. Some programs may also utilize hiring goals. Such programs are
typically designed to address the continuing effects of past or present bias
against the hiring and/or promotion of women and minority employees.
According to the evidence before the Court, their effect has been to
provide such employees with substantial opportunities not previously
available.
The use of voluntary affirmative action in California's civil service
provides one such example. In 1971, then-Governor Ronald Reagan issued
an Executive Order establishing voluntary affirmative action in the
California civil service. Bielby Decl. para. 4. Subsequently, state agencies
and departments began using hiring goals and timetables in an effort to
correct the existing underutilization of women and
minorities.[FOOTNOTE 17] As a consequence, the "index of gender and
race segregation in state agencies" declined by 11 and 16 percent
respectively between 1979 and 1986. para. 5. See also Newmann Decl.
para. 7 (period from 1979-85 showed substantial statistical increases in the
rate of female representation in the California "civil service and an even
greater increase in nonwhite representation"); Badget Decl. para. 6 ("After
state and federal governments began to require that state and local
employers execute affirmative action plans in the early 1970s, the
representation of Latino and black women increased dramatically as did
access to managerial and professional jobs for all women of color.");
Grillo Decl. para.para. 1-4 (affirmative action guidelines have been "very
important" in enabling women and minorities to gain civil service
positions in California).
The record also indicates that implementation of Proposition 209 would
substantially reduce opportunities for women and minorities in public
employment.
3. Education
Race- and gender-conscious affirmative action programs in California in
the area of public education range from voluntary desegregation and
"magnet school" programs at the elementary school level to financial aid
and admissions programs at the college and graduate school level. The
evidence before the Court demonstrates that, overall, these programs have
benefited minorities and women.
The University of California provides one example. Where the number of
eligible applicants exceeds the spaces available, the University of
California campuses select between 40 and 60% of students based upon
their grades, test scores and course work. The remaining selections are
made using a combination of criteria including California residence,
physical and learning disabilities, educational disadvantage, family
income, ethnicity, leadership ability, public service, special athletic,
artistic or musical ability, composition of a student's family (whether
student comes from a single- or two-parent family) and a student's family's
college history (whether student is first-generation college bound).
Under this system of admissions, the racial composition of the total
University of California freshman class for the Fall of 1994 was as
follows:
numberpercentage
American Indian214 .96
African American9684.35
Latino 3,31314.87
Filipino 949 4.26
Asian 7,19132.28
White/other 9,64343.28
total:22,278 100.00
Conrad Decl. para. 15.
The record indicates that, without the present race- and gender-conscious
affirmative action efforts, the number of African American enrollments
"could be reduced across the system by as much as 40 to 50 percent while
Chicano/Latino enrollments could be reduced by 5 to 15 percent .
American Indian enrollments could be reduced by 40 to 50 percent.
Filipino enrollments could increase by 5 percent or decline by 5 percent."
Pls. Exh. 7 at i. On the other hand, Asian American enrollments would
increase by 15 to 25 percent. White enrollments would likely remain
roughly the same. Id.[FOOTNOTE 18]
The above estimates may well understate the actual decreases that would
occur over time. As acceptance rates fall for African American, Latino and
American Indian students, the applicant pool from these groups may fall
as well, since high school students consider the probability of admission
when deciding where to apply for college.
The record also suggests that, absent race- and gender-conscious
admission programs, the admissions of African American, Latino, and
American Indian students at California's public medical schools will
significantly decrease. This in turn is likely to have a negative effect on the
delivery of health care services in those communities. "On average, black
physicians care for nearly six times as many black patients and Hispanics
physicians care for nearly three times as many Hispanic patients as other
physicians." Conrad Decl. para. 37; Drake Decl. para. 5.
D. Impact of Proposition 209 on the Political Process
Prior to the passage of Proposition 209, anyone seeking to petition his or
her government representatives to adopt, amend, or retain race- or gender-
conscious affirmative action programs faced the same burdens as those
faced by any constituent seeking preferential treatment for any group in
the area of contracting, employment or education.[FOOTNOTE 19]
Typically, this burden involves directly petitioning and lobbying the
specific representatives or policymakers with authority to adopt such
programs. Such programs can generally be approved by simple majority
vote or by executive decision. See e.g. Hernandez Decl. para. 5 (describing
constituents' successful effort to convince city of San Francisco to adopt
affirmative action program to remedy discriminatory practices in city
contracting). In other cases, a local initiative process may be required.
After the passage of Proposition 209, women and minorities who wish to
petition their government for race- or gender-conscious remedial programs
face a considerably more daunting burden.[FOOTNOTE 20] Before such
persons can approach their school district, city council, county
government, or any other subdivision of government with such a proposal,
they must first obtain an amendment to the California Constitution that
would either (a) repeal Proposition 209, or (b) permit the specific
government entity at issue to adopt a particular race- or gender-conscious
affirmative action program.
The California Constitution can be amended through either an initiative
constitutional amendment or a legislative constitutional amendment.
Either method places a heavy burden on those seeking to advocate the use
of constitutionally- permissible affirmative action programs in their local
communities.
Under the first method-an initiative constitutional amendment-sponsors
must first obtain signatures supporting the initiative equal to 8% of the
previous gubernatorial vote. In 1996, this required the collection of
693,230 valid signatures. Cain Decl. para. 4. Since many signatures are
disqualified, in order to ensure the requisite number of valid signatures,
approximately 50% more "raw" signatures must be collected. Zimmerman
Decl. para. 8. Because these signatures must be collected within a 150-day
time limit, a campaign must typically collect up to 7,000 signatures during
each of the 150 days. Id. para. 9. Given these requirements, and the size of
California, hiring paid signature gatherers is a virtual necessity. The cost
of obtaining signatures runs from $0.70 to $1.50 per signature. Id. para.
10. Thus, even where volunteers gather some portion of the required
signatures, the cost of securing sufficient signatures, and minimally
staffing a few offices, can run from $500,000 to $1.5 million. Id. para. 11;
Cain Decl. para. 6. Once the initiative has qualified, it must gain majority
approval by the voters.
Under the second method-legislative constitutional amendment-sponsors
must secure a two-thirds vote of approval by both the California Senate
and Assembly. A majority of the voters must then approve the amendment
at the next statewide election.
In either case, substantial funds are required to organize and fund the
statewide campaign that follows the initiative qualification procedure or
requisite legislative approval. Again, the size of California makes this
endeavor particularly expensive. To reach at least 10 million voters
directly, a campaign would have to talk to 1,000 voters each day for 30
years. Zimmerman Decl. para. 12. Campaigns must thus generally reach
voters through television, radio, print advertising, and direct mail.
According to the California Commission on Campaign Financing, $109
million was spent on statewide initiatives on the 1990 ballot. Cain Decl.
para. 6. The campaign in support of Proposition 209 had spent $3.1
million by October 1996. Cain Decl. para. 6.
As a result of the new political-process hurdles erected by Proposition
209, members of the plaintiff class are effectively precluded from
petitioning local and state policymakers and representatives to adopt,
maintain, or expand race- or gender-conscious affirmative action
programs. For example, the Coalition for Economic Equity (Coalition), a
named plaintiff in this action, has proposed fifteen amendments to the City
of San Francisco's affirmative action policy. Members of the Coalition
have met with City Supervisors in preparation for a vote on the proposed
legislation by the entire San Francisco Board of Supervisors. The
Coalition is now precluded from further pursuing this legislation through
the normal political channels that were available prior to the adoption of
Proposition 209.
V.CONCLUSIONS OF LAW
A. Likelihood of Success on Plaintiffs' Equal Protection Claim
"The Equal Protection Clause of the 14th Amendment guarantees racial
minorities the right to full participation in the political life of the
community." Seattle, 458 U.S. at 467. This guarantee applies with equal
force to women. United States v. Virginia, 116 S. Ct. at 2275. The Equal
Protection Clause not only prohibits the outright exclusion of women and
minorities from the political process, but also prohibits more subtle
distortions of the political process. Seattle, 458 U.S. at 467. In the words
of the Supreme Court, "the State may no more disadvantage any particular
group by making it more difficult to enact legislation in its behalf than it
may dilute any person's vote." Id. at 476 (quoting Hunter, 393 U.S. at
393).
Plaintiffs argue that Proposition 209, despite its facial neutrality, violates
the Equal Protection Clause because it restructures the political process to
disadvantage only those seeking to enact legislation intended to benefit
minorities and women. Relying on the Supreme Court opinions in Seattle
and Hunter, plaintiffs emphasize that prior to the enactment of Proposition
209, supporters of race- and gender-conscious affirmative action programs
were able to petition their state and local officials directly for such
programs. After the passage of Proposition 209, however, these same
advocates face the considerably more daunting task of mounting a
statewide campaign to amend the California Constitution. At the same
time, those seeking preferences based on any ground other than race or
gender, such as age, disability, or veteran status, continue to enjoy access
to the political process at all levels of government. Plaintiffs thus maintain
that Proposition 209 denies them the equal protection of the laws by
removing the authority to redress racial and gender problems-and only
those problems-to a new and remote level of government, thereby singling
out the interests of minorities and women for a special political burden.
For the reasons noted earlier, the Court in testing Proposition 209 against
the Equal Protection Clause focuses on a relatively narrow question: does
Proposition 209's prohibition of constitutionally-permissible race- and
gender-conscious affirmative action violate plaintiffs' right to equal
protection of the laws?
1. Does the Seattle-Hunter Doctrine Apply?
Plaintiffs rely primarily on two Supreme Court cases, Hunter and Seattle,
to support their equal protection claim. "These cases yield a simple but
central principle. [T]he political majority may generally restructure the
political process to place obstacles in the path of everyone seeking to
secure the benefits of governmental action. [But] the State [may not]
allocate governmental power nonneutrally by explicitly using the racial
nature of a decision to determine the decisionmaking process." Id. at 470.
In Hunter v. Erickson, 393 U.S. 385 (1969), the Supreme Court addressed
the efforts of citizens of Akron, Ohio, to overturn duly-enacted legislation
prohibiting racial discrimination in housing. After the city council adopted
a fair housing law, the citizens by referendum amended the city charter to
require that fair housing ordinances be put to a citywide vote before they
could take effect. This requirement, set out in section 137 of the charter,
not only affected future fair housing efforts, but also reached back to
suspend the previously-enacted ordinance. See id. at 387. The Supreme
Court found that section 137 singled out local legislation of special
interest to minorities for a unique political burden; while those seeking to
enact ordinances regulating real estate on any basis other than race merely
had to persuade the Akron City Council, "for those who sought protection
against racial bias, the approval of the City Council was not enough." Id.
at 390. The Supreme Court ultimately concluded that Akron's restructuring
of the political process violated the 14th Amendment.
The Supreme Court's analysis of section 137 turned on two particular
features of the measure. First, section 137 raised equal protection concerns
because it singled out an issue of particular interest to racial minorities-
racial discrimination in housing. Had the measure imposed a new political
burden on all legislation, the Supreme Court was quick to point out, it
would not have run afoul of the 14th Amendment. Id. at 393-95 (Harlan,
J., concurring). Second, section 137 was suspect because it imposed a
novel political burden on all future efforts to enact fair housing legislation.
Had the citizens of Akron used the referendum process simply to repeal
the fair housing ordinance previously adopted by the Akron City Council,
this action alone would have raised no equal protection difficulty. Id. at
390 n.5; see also Crawford, 458 U.S. at 539. Although neither of these two
features of section 137, standing alone, would have offended the 14th
Amendment, the Supreme Court held that the confluence of the two
factors-the targeting of a racial issue and the reordering of the political
process-constituted a racial classification that required the most exacting
judicial scrutiny.
In Washington v. Seattle School District No.1, 458 U.S. 457 (1982), the
Supreme Court reaffirmed its ruling in Hunter, applying the rationale of
that case to a statewide initiative designed to prohibit the mandatory
busing of students to achieve racial integration in schools. After a Seattle
school district took steps to establish a mandatory busing plan, the voters
of Washington passed Initiative 350, which provided that "no school board
shall directly or indirectly require any student to attend a school other than
the school which is geographically nearest or next nearest the student's
place of residence." Id. at 462. Three school districts that had previously
initiated busing efforts challenged the initiative in court, and these
challenges ultimately presented the Supreme Court with an "extraordinary
question: whether an elected school board may use the Fourteenth
Amendment to defend its program of busing for integration from attack by
the State." Id. at 459 (emphasis in original).
Despite its facially neutral language, the Supreme Court found that
Initiative 350 in reality barred only busing plans aimed at achieving racial
integration while permitting busing for other purposes. In striking down
the initiative, the Court found that it, like the enactment in Hunter, singled
out an issue of concern to minorities-racial busing-and imposed special
political burdens on those who supported the issue. These features of
Initiative 350 led the Court to find that the facially-neutral measure was, in
reality, a racial classification subject to the most searching judicial
scrutiny. Id. at 485. In the words of the Court, "It is beyond dispute that
the initiative was enacted 'because of,' not merely 'in spite of,' its adverse
effects upon busing for integration." Id. at 471. As in Hunter, the Supreme
Court concluded that, viewed in this light, Initiative 350 violated the 14th
Amendment.
Before the Court applies these precedents to the case at bar, it notes that
Proposition 209 shares several characteristics with the measures struck
down in Hunter and Seattle. All three initiatives are facially neutral. All
three grew from controversial efforts aimed at rolling back legislative
gains that were intended as remedies for historical discrimination suffered
by particular groups. Perhaps most importantly, in the wake of all three
measures, those seeking to reenact such remedies could no longer use the
same political mechanisms that had been available prior to the passage of
the enactments.
As plaintiffs themselves concede, however, one difference between Seattle
and Hunter and the matter at bar is readily apparent: Seattle and Hunter
exclusively address racial issues,[FOOTNOTE 21] whereas Proposition
209 addresses both race and gender preferences. Defendants urge this
Court not to import the Supreme Court's Seattle and Hunter reasoning into
the context of gender.
The Supreme Court "has repeatedly recognized that neither federal nor
state government acts compatibly with the equal protection principle when
a law or official policy denies to women, simply because they are women,
full citizenship status." United States v. Virginia, 116 S. Ct. at 2275.
Because "our Nation has had a long and unfortunate history of sex
discrimination," equal protection jurisprudence requires that gender
classifications must survive heightened judicial scrutiny. J.E.B. v.
Alabama ex rel T.B., 511 U.S. 127, 114 S. Ct. 1419, 1425 (1994) (quoting
Frontiero v. Richardson, 411 U.S. 677, 684 (1973)). Gender and racial
classifications, however, do not receive identical treatment under the
Equal Protection Clause; to date, the Supreme Court has reserved strict
scrutiny for racial classifications. United States v. Virginia, 116 S. Ct. at
2275 n.6. Gender classifications, meanwhile, are subject to less stringent
intermediate scrutiny review. Id. at 2274.
The differing levels of judicial scrutiny accorded race and gender
classifications, however, do not render the reasoning of Seattle and Hunter
inappropriate in the context of gender. On the contrary, the doctrinal
approach of those cases is wholly consonant with the heightened scrutiny
applicable to gender classifications. When a measure is challenged under
the Equal Protection Clause, a court is required, as a threshold matter, to
determine whether the challenged measure contains a race or gender
classification. See Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097,
2105 (1995) (noting that presence of a race classification made the
Arlington Heights intent analysis unnecessary); Personnel Adm'r. of Mass.
v. Feeney, 442 U.S. 256, 273-74 (1979) (noting different equal protection
analysis when no explicit gender classification is present). It is this
threshold question that the Seattle-Hunter analysis is meant to answer.
Only after concluding that a racial classification was involved did the
Supreme Court in Seattle and Hunter proceed to subject the challenged
enactments to strict scrutiny. Seattle, 458 U.S. at 485; Hunter, 393 U.S. at
391-92. In the gender context, similarly, a court should first apply the
Seattle-Hunter analysis to determine whether a gender classification exists,
and then apply the appropriate intermediate equal protection scrutiny. It is
precisely by applying the Seattle-Hunter doctrine in cases involving
gender that a court fulfills its obligation to scrutinize gender classifications
carefully.
Irrespective of the applicability of the rationale of Seattle and Hunter to
gender, defendants maintain that the present case is not controlled by these
precedents. Simply put, the defendants insist that because this case is
different in kind from Seattle and Hunter, the Seattle-Hunter doctrine is
wholly irrelevant.
First, defendants argue that Proposition 209, unlike the Washington and
Akron initiatives, expressly prohibits classifications based on race and
gender, and thus cannot be read to create such classifications. Defendants
essentially ask this Court to read the plain language of Proposition 209,
which concededly contains no classification on its face, and go no further.
While it would certainly streamline the inquiry, this approach is expressly
disapproved in Hunter and Seattle. Despite the facial neutrality of the
challenged enactments in both of those cases, the Supreme Court looked
beyond the plain language of the measure in question and inquired
whether, "in reality, the burden imposed by [the] arrangement necessarily
falls on the minority." Seattle, 458 U.S. at 468 (emphasis added, internal
quotations omitted); see also Hunter, 393 U.S. at 391.[FOOTNOTE 22]
Defendants' argument, moreover, asks this Court to overlook the central
purpose of the Seattle-Hunter doctrine: to determine whether facially
neutral enactments in reality rest on "distinctions based on race" or gender.
Seattle, 458 U.S. at 485. Defendants cannot use Proposition 209's facial
neutrality as a shield against the application of the Seattle-Hunter analysis;
it is precisely the measure's facial neutrality that makes application of
those cases appropriate. Compare id. (applying Hunter to find that a
facially neutral measure operated as a racial classification) with Crawford,
458 U.S. at 539 (applying the Hunter analysis to find that a facially neutral
measure did not embody a racial classification). Defendants have simply
mistaken the starting point of the equal protection analysis with its ending
point.
Defendants next attempt to distinguish the Seattle and Hunter cases by
shifting the focus of the inquiry from the initiatives themselves to the
legislative efforts they effectively bar. From this standpoint, the
defendants make two arguments that are variations on a single theme to
distinguish Seattle and Hunter from the case at hand.
In the first argument, defendants contend that neither the mandatory
busing programs barred by Initiative 350 nor the fair housing legislation
barred by Akron's section 137 placed a burden upon the equal protection
rights of nonminorities. Defendants insist that Proposition 209, in contrast,
would outlaw preferences that by their very nature inflict injury on
nonminorities. See Adarand, 116 S. Ct. at 2114 ("[W]henever the
government treats any person unequally because of his or her race, that
person has suffered an injury ."); Wygant v. Jackson Bd. of Educ., 476
U.S. 267, 280-83 (1986) (opinion of Powell, J.) (discussing the burden
placed on nonminorities by affirmative action programs aimed at
remedying past discrimination). On this theory, Proposition 209 is
distinguishable from the initiatives in Seattle and Hunter because it only
interferes with "zero-sum" antidiscrimination efforts-those that help
minorities, but do so at the expense of nonminorities.
The second argument focuses on the judicial scrutiny that attends the
efforts banned by the challenged initiatives. According to defendants, the
affirmative action efforts prohibited by Proposition 209 are, under existing
14th Amendment principles, themselves constitutionally suspect and
subject to heightened scrutiny. See Adarand, 115 S. Ct. at 2117. The fair
housing ordinance and the busing programs that were overturned by the
initiatives in Seattle and Hunter, defendants argue, did not themselves
trigger heightened equal protection scrutiny.
Defendants' proposed distinctions, although not implausible on their face,
both fail for the same reason: nothing in Seattle or Hunter suggests that the
Supreme Court holdings turned on these features of the challenged
amendments.[FOOTNOTE 23] If the application of the Seattle-Hunter
doctrine to Initiative 350 turned on whether or not Seattle's mandatory
busing plan could be characterized as "zero-sum," as the defendants
contend, the Supreme Court would presumably have addressed this
difficult threshold issue. The opinion in Seattle, however, applied Hunter
without examining whether mandatory busing presented a "zero-sum"
scenario.[FOOTNOTE 24] Similarly, the Supreme Court in Seattle
expressly declined to reach the question of what level of equal protection
scrutiny was applicable to Seattle's busing plan. Seattle, 458 U.S. at 472
n.15. Consequently, defendants' contention that Seattle's holding turns on
the scrutiny applicable to Seattle's busing program is unpersuasive.
Defendants' view of Initiative 350, moreover, overlooks the raging
controversy that surrounded the issue of mandatory busing in 1978 and
that constituted the backdrop for the Supreme Court's decision in Seattle.
See Seattle Sch. Dist. No. 1 v. Washington, 473 F. Supp. 996, 1005-10
(W.D. Wash. 1979), aff'd, 633 F.2d 1338 (9th Cir. 1980), aff'd, 458 U.S.
457 (1982) (findings regarding the political controversy surrounding
Seattle's busing efforts). It is evident that many who supported Initiative
350 felt that Seattle's busing plan benefited minority students at the
expense of the majority. This is borne out by the fact that shortly after the
implementation of the plan, four school board members who supported the
plan narrowly avoided recall. Seattle, 458 U.S. at 460 n.1. As a result,
defendants' conclusion that the busing plan in Seattle did not burden
majority interests is, at best, both factually and legally ambiguous. Id. at
495 n.9 (Powell, J., dissenting) (suggesting that busing aimed at
desegregation might, in fact, be viewed as burdensome to nonminority
students).
Finally, defendants' focus on the particular legislation barred by Initiative
350, Akron's section 137, and Proposition 209, rather than on the
initiatives themselves, suffers from a more fundamental flaw. Accepting
defendants' arguments would essentially require that this Court read
Seattle and Hunter as cases about the limits on state-sponsored remedies
for past discrimination. This is the inevitable conclusion that emerges from
a primary focus on the legislation blocked, rather than on the blocking
intiative. As this Court has pointed out, however, the instant case, as well
as Seattle and Hunter, are more appropriately understood as cases about
access to the political process.
Because the Seattle-Hunter doctrine is designed to determine whether
facially neutral enactments single out race and gender issues for unique
political burdens, and thus are suspect classifications, defendants' efforts to
distinguish Seattle and Hunter must fail. If, in reality, Proposition 209
does not single out a racial or gender issue for unfavorable treatment in the
political process, the initiative will emerge from the Seattle-Hunter
analysis unscathed. See Crawford, 458 U.S. at 539 (simple repeal of
antidiscrimination law raises no equal protection concern). If, on the other
hand, Proposition 209's facial neutrality masks a racial or gender
classification, the Equal Protection Clause requires that the measure be
subjected to heightened scrutiny. See Seattle, 458 U.S. at 485. It is to this
inquiry that this Court now turns.[FOOTNOTE 25]
2.Application of the Seattle-Hunter Doctrine
The Seattle opinion sets out the framework for analysis: if an "initiative
removes the authority to address a racial problem-and only a racial
problem-from the existing decisionmaking body, in such a way as to
burden minority interests," it must be examined for equal protection
purposes as if it were a racial classification. Id. Keeping the earlier
discussion regarding the extension of this analysis to the gender context in
mind, the Court applies the Seattle test to Proposition 209.
a.Racial Focus
Just as the Supreme Court did in Seattle, this Court begins its analysis by
asking whether Proposition 209, despite its facial neutrality, singles out an
issue of special interest to minorities or women, and thus has a "racial [or
gender] focus." Id. at 474.
In concluding that Initiative 350 had a racial focus, the Supreme Court
relied in part on the perceptions of Washington voters. The Court found
that despite Initiative 350's neutral language, proponents of the measure
assured voters that it would affect only racial busing. Id. at 471. Given the
nature of the political campaign that surrounded its passage and the
measure's practical effect, the Supreme Court had no difficulty joining the
District Court and Court of Appeals in concluding that Initiative 350 was
"effectively drawn for racial purposes." Id.
The record likewise suggests that the campaign for Proposition 209 had a
racial and gender focus. As described in the Findings of Fact, the
independent LAO, as well as the supporters and opponents of Proposition
209, characterized Proposition 209 as a referendum on race- and gender-
conscious affirmative action. Named defendant Governor Pete Wilson
himself signed the Argument in Favor statement, which opens with the
following:
THE RIGHT THING TO DO!
A generation ago, we did it right. We passed civil rights laws to prohibit
discrimination. But special interests hijacked the civil rights movement.
Instead of equality, governments imposed quotas, preferences, and set-
asides.
Pls. Exh. 2. Just as the voters of Washington perceived Initiative 350 as a
referendum on busing, the evidence presently before the Court indicates
that people of California viewed Proposition 209 as a referendum on
affirmative action.
The Supreme Court, in evaluating whether Initiative 350 had a racial
focus, also considered the enactment's practical effect. In Seattle, despite
Initiative 350's non-racial language regulating student transportation, the
practical effect of the measure was to prohibit only busing for racial
integration, while leaving school districts free to employ busing for other
purposes. Seattle, 458 U.S. at 474-75. Similarly, while Proposition 209's
general language barring discrimination merely duplicates existing state
and federal law, and thus does not materially alter existing state practices,
Proposition 209's prohibition on preferences will have a practical effect on
existing programs. The California Legislative Analyst, for example,
concluded that Proposition 209's ban on race and gender preferences
would eliminate existing state and local race- and gender-conscious
affirmative action efforts in contracting, employment, and education. Pls.
Exh. 2. The defendants, moreover, despite repeated questioning by
plaintiffs and the Court, have not yet identified a single existing program,
other than race- and gender-conscious affirmative action programs, that
would be affected by Proposition 209.[FOOTNOTE 26]
While all parties concede that Proposition 209, at the very least, will
prohibit race- and gender-conscious affirmative action efforts, it is equally
plain that preferences unrelated to race and gender remain unaffected by
Proposition 209. The University of California, for example, remains free
after Proposition 209 to continue its practice of considering in its
admissions decisions "California residence , physical and learning
disabilities, educational disadvantage, family income, and whether a
student comes from a two-parent or single-parent family, is first-
generation college bound or has special talents (for example, artistic or
athletic ability) or experiences." Young Decl. para. 13. Thus, the primary
practical effect of Proposition 209 is to eliminate existing governmental
race- and gender-conscious affirmative action programs in contracting,
education, and employment and prohibit their creation in the future, while
leaving governmental entities free to employ preferences based on any
criteria other than race or gender.
The opinion in Seattle, after concluding that the practical effect of
Initiative 350 was to prohibit racial busing, addressed whether racial
busing was an issue of special interest to minorities. Satisfied that
Proposition 209 singles out race- and gender-conscious affirmative action,
the Court turns to a similar question: is affirmative action an issue of
special interest to minorities and women? The Court finds that the record
fully supports plaintiffs' contention that state-sponsored race- and gender-
conscious affirmative action "inures primarily to the benefit of the
minority, and is designed for that purpose." Seattle, 458 U.S. at 472. As
discussed in the Findings of Fact, plaintiffs have produced extensive
evidence documenting the dramatic effect that affirmative action has had
on the opportunities available to minorities and women in public
contracting, employment, and education.
Defendant-intervenor CADP stresses that, in recent years, the
effectiveness and wisdom of race- and gender-conscious affirmative action
programs have been called into question. In particular, CADP notes that as
California becomes increasingly heterogeneous, affirmative action
programs designed to benefit one racial minority can actually harm the
interests of another racial minority. This insight, however, has no bearing
on the "racial focus" inquiry mandated by Seattle. The fact that African
Americans and whites could be found on both sides of the busing debate in
that case did not prevent the Supreme Court from concluding that
Initiative 350 addressed a racial issue. Id. at 472 (noting that "Negroes and
whites may be counted among both the supporters and the opponents of
Initiative 350").
In any event, the "racial focus" inquiry set down in Seattle does not
depend on the wisdom or efficacy of any particular affirmative action
program. "In the absence of a constitutional violation, the desirability and
efficacy" of race- and gender-conscious affirmative action "are matters to
be resolved through the political process." Id. at 474. Rather, the question
posed by Seattle is whether the issue in question is generally perceived as
one of special interest to minorities and women, and if the issue has been
singled out for unfavorable political treatment. As the Supreme Court held
in Seattle, an enactment is unconstitutional if it "removes the authority to
address a racial problem-and only a racial problem-from the existing
decisionmaking body, in such a way as to burden minority interests." Id.
(emphasis added). This Court has no trouble concluding that affirmative
action is appropriately understood as "racial problem" and, similarly, a
"gender problem" in the sense meant by the Supreme Court. Id. ("For
present purposes, it is enough that minorities may consider busing for
integration to be legislation that is in their interest.")
For the foregoing reasons, the Court is satisfied that plaintiffs have
demonstrated that Proposition 209 "was enacted 'because of,' not merely
'in spite of,' its adverse effects upon" affirmative action, and thus that the
measure was effectively drawn for racial purposes.[FOOTNOTE 27] Id. at
471.
b.Restructuring the Political Process
The Court next must ask whether Proposition 209 restructures the political
process to the detriment of the interests of minorities and women.
The Supreme Court in Seattle addressed this issue by comparing the
political burden faced by those seeking race-based busing with the burden
faced by those seeking student assignment policies for nonracial reasons.
Prior to the passage of Initiative 350, the state left virtually all matters of
education policy, including busing to achieve integration, to local school
boards. Id. at 477-82. The Court found that, after Initiative 350, "[t]hose
favoring the elimination of de facto school segregation now must seek
relief from the state legislature, or from the statewide electorate." Id. at
474. Those interested in busing for other purposes, in contrast, could
continue to petition their local school boards for such programs. The Court
concluded that this restructuring of political authority imposed a
"comparative burden on minority participation in the political process." Id.
at 480 n.23.
In evaluating Proposition 209, this Court employs the same comparative
approach utilized in Seattle. The defendants here concede that prior to
Proposition 209, those seeking preferences-whether based on race, gender,
disability, veteran status, economic disadvantage, age, residency, or any
other basis-in public contracting, employment, and education could
directly petition their state and local governmental entities for such
preferential treatment. After the enactment of Proposition 209, those
seeking race- and gender-conscious affirmative action must first mount a
statewide campaign to amend the state constitution, while those seeking
preferential treatment on all other grounds need not surmount any new
political hurdle.
The record compiled by plaintiffs indicates that this changed political
landscape imposes a substantial burden on the interests of women and
minorities. The Coalition, for example, has been instrumental in
persuading the City and County of San Francisco ("San Francisco") to
adopt contracting ordinances that include race- and gender-conscious
provisions designed to remedy the city's history of discrimination in
contracting ("MWBE Ordinance").[FOOTNOTE 28] Since the adoption of
the MWBE Ordinance, the Coalition has continued to support the
program, periodically proposing modifications designed to enhance its
effectiveness and ensure its conformity with federal and state
law.[FOOTNOTE 29]
After Proposition 209, the doors of San Francisco government are closed
to groups like the Coalition. The Coalition thus faces not only the prospect
that San Francisco's MBWE Ordinance might fall to a court challenge
brought under Proposition 209,[FOOTNOTE 30] but also must embark on
a statewide campaign to repeal or amend Proposition 209 if they are to
enact any similar legislation in the future. As detailed in the Findings of
Fact, the evidence before the Court indicates that this additional political
hurdle is a high one: the Coalition would need to collect approximately
700,000 valid signatures to qualify an initiative, and then would have to
mount an expensive statewide media campaign to persuade voters to vote
in its favor at the polls. This political burden stands in stark contrast to the
local effort the Coalition faced prior to the passage of Proposition 209.
The example of San Francisco's MWBE Ordinance also demonstrates that
Proposition 209, like Initiative 350, burdens minority interests by
indiscriminately eliminating even programs that do not arouse popular
opposition. Despite Proposition 209's statewide victory, the voters of San
Francisco opposed the measure by a margin of 70.5% to
29.4%.[FOOTNOTE 31] In the words of the Supreme Court,
In such situations the initiative makes the enactment of racially beneficial
legislation difficult, though the particular program involved might not
have inspired opposition had it been promulgated through the usual
legislative processes used for comparable legislation. This imposes direct
and undeniable burdens on minority interests.
Seattle, 458 U.S. at 483-84 (internal footnote omitted); see also Hunter,
393 U.S. at 395-96 (noting that section 137 has its real impact only where
fair housing ordinances do not arouse opposition, because truly
controversial measures would presumably be repealed via the existing
referendum procedure).
In response to plaintiffs' showing regarding political burden, defendants
insist that Proposition 209 in no way reorders the political process with
respect to race and gender preferences. In their view, the proper forum for
addressing fundamental issues regarding individual rights has always been
the state constitution, and Proposition 209 merely modifies the existing
constitutional guarantee of equal treatment at the appropriate
governmental level.
This argument has substantial merit with respect to Proposition 209's
broad antidiscrimination provision-the general ban on invidious race and
gender discrimination is certainly a matter of constitutional
decisionmaking. As the Court has pointed out, however, it is Proposition
209's ban on preferences, not its general ban on discrimination, that is the
focus of the instant suit. In this narrower context, defendants' argument
falls short. Prior to the passage of Proposition 209, the discretion to adopt
constitutionally-permissible race- and gender-conscious affirmative action
programs was, as defendants' counsel conceded at oral argument, lodged
with state and local government entities, not reserved at the constitutional
level.
Moreover, the Supreme Court explicitly rejected defendants' argument in
Seattle. In that case, Washington argued that it exercised plenary power
over matters concerning public education, and that Initiative 350's ban on
racial busing should thus be understood as change in policy by the body
ordinarily charged with policymaking discretion. Seattle, 458 U.S. at 475-
76. In rejecting this view, the Supreme Court emphasized that the issue
was not whether the state had the power to ban race-based busing, but
rather whether it had "exercised its power in such a way as to place
special, and therefore impermissible, burdens on minority interests." Id. at
476 n.18. Similarly, in the instant case no one challenges California's
power to modify its basic constitutional guarantees of individual rights.
The "single narrow question" before this Court is whether the state has
exercised that power in a manner that violates the 14th Amendment. Id.
The foregoing discussion also addresses defendants' contention that the
present case is controlled by the Supreme Court's decision in Crawford v.
Board of Education, 458 U.S. 527 (1982), which was handed down on the
same day as Seattle. That case involved a California constitutional
amendment, Proposition 1, that the voters enacted in 1979. Proposition 1
aligned the authority of state courts to that of the federal courts with
respect to court-ordered racial busing. In reviewing this initiative, the
Supreme Court held that it merely repealed the prior constitutional
language that had been interpreted to grant state courts more flexibility in
ordering busing than was possessed by federal courts. Id. at 539. The
Supreme Court further found that the repeal did not distort the political
process-in the Supreme Court's view, what the people of California gave
via the constitution, they chose to repeal via the same mechanism. Id. at
541; id. at 547 (Blackmun, J., concurring). Local school boards, which had
been free to adopt certain busing programs aimed at desegregation,
remained free after Proposition 1 to adopt such programs.[FOOTNOTE
32] Id. at 535-536 (noting that this feature of Proposition 1 distinguished it
from the initiative in Seattle).
As should be clear from the earlier discussion, the present case is
dramatically different from Crawford. First, Proposition 209 cannot be
characterized as a mere repeal. Proposition 209, by its terms, not only
repeals all existing state and local affirmative action programs, but also
prohibits the adoption of such programs in the future. In so doing,
Proposition 209 displaces authority with respect to a race and gender issue
to "a new and remote level of government," Seattle, 458 U.S. at 483, and
thus reorders the political process to the detriment of women and
minorities. Hence, rather than supporting defendants' position, Crawford
underscores the troubling features of Proposition 209.
Because the Court finds, based on the foregoing, that Proposition 209
singles out an issue of special concern to minorities and women-race- and
gender-conscious affirmative action-and alters the political process solely
with respect to this issue, it concludes that the initiative "plainly rests on
distinctions based on race." Id. at 485 (internal quotes omitted).
c.Heightened Scrutiny
Where a governmental enactment rests on a racial or gender classification,
a court must expose it to "a most searching examination." Adarand, 115 S.
Ct. at 2111 (quoting Wygant, 476 U.S. at 273 (opinion of Powell, J.)). In
examining race and gender classifications, however, the Supreme Court
has employed two different standards, reserving the most exacting judicial
scrutiny for situations involving race.[FOOTNOTE 33] United States v.
Virginia, 116 S. Ct. at 2275 n.6. Because this Court finds that Proposition
209 fails to survive the lesser scrutiny due its inherent gender
classification, it need not apply the more stringent strict scrutiny
test.[FOOTNOTE 34]
In applying the intermediate scrutiny test appropriate to gender
classifications, the Court is mindful of the Supreme Court's recent cases in
this area. See United States v. Virginia, supra; J.E.B. v. Alabama ex rel.
T.B., supra. According to the Supreme Court, "Today's skeptical scrutiny
of official action denying rights or opportunities based on sex responds to
volumes of history." United States v. Virginia, 116 S. Ct. at 2274. In order
to survive this scrutiny, a gender classification must be supported by an
"exceedingly persuasive justification." Id. at 2275. The state has the
burden of showing that the challenged classification "serves important
governmental objectives" and that the means employed are "substantially
related to the achievement of those objectives." Id.
In applying this demanding test, the Court asks a simple question: what
important governmental interest is served by reordering the political
process to the detriment of women's interests? With respect to this
question, the defendants have not shouldered their burden. Defendants first
suggest that Proposition 209 serves the important state interest of ending
discrimination on the basis of race and gender. While undoubtedly
important, however, this state interest is a non-sequitor with respect to
Proposition 209. The Court fails to see how this purported interest is
related to, much less justifies, the nonneutral reordering of the political
process that is at issue in this case. As Seattle and Hunter make clear, it is
not Proposition 209's prohibition on affirmative action that raises equal
protection concerns; rather, it is the reordering of the political process that
triggers exacting judicial scrutiny. Defendants have not identified any
feature of the prior political process that was discriminatory, and thus their
invocation of a state interest in eliminating discrimination cannot justify
the nonneutral reordering of that process.
The defendants also suggest that Proposition 209 serves an important state
interest in avoiding liability under the 14th Amendment for affirmative
action programs that have not yet been tested in court. As an initial matter,
the Court notes that defendants have cited no cases suggesting that a state's
abundance of caution can, by itself, constitute an important interest that
would justify a gender classification. Even assuming that such an interest
could justify a gender classification, Proposition 209 is a hopelessly
overbroad means to that end. Proposition 209, far from being limited to
affirmative action programs implemented by state agencies that have not
been tested in court, prohibits all preferences, whether at the state or
municipal level, and whether tested or untested in court.
3.Conclusion
The Court turns finally to defendants' reductio ad absurdum attack on the
plaintiffs' equal protection argument. Defendants submit that the Seattle
and Hunter cases cannot be read to invalidate Proposition 209, because
such a reading would necessarily lead to an absurd reordering of the
relationship between states and subordinate local government units.
According to this argument, if the Court accepts plaintiffs' position, such a
holding would, in effect, permit local govermental bodies to preempt state
authority on any racial or gender issue, at least where the local entity has
acted to confer a benefit on minorities or women.
In making this argument, defendants rely primarily on concerns expressed
by Justice Powell in his dissenting opinion in Seattle. 458 U.S. at 494-95,
498 n.14. As the majority in that case pointed out, however, the difficult
dilemma posed by Justice Powell was not presented by Initiative 350. Id.
at 480 n.23. Similarly, the dilemma posed by defendants does not follow
from plaintiffs' equal protection claim in the instant case. Nothing about
plaintiffs' argument requires that the state of California be forever barred
from addressing a race- or gender-conscious affirmative action program
where a local authority has acted first. The Seattle-Hunter doctrine merely
regulates the manner of any state intervention, preventing the state from
nonneutrally reordering the political process to burden the interests of
minorities or women. A state, for example, remains free to restructure the
political process in a neutral manner, even where such a change indirectly
burdens the political participation of women and minorities. A state may
also intercede where it can articulate a justification that survives equal
protection scrutiny. What a state may not do, according to the Seattle-
Hunter doctrine, is single out an issue of special interest to minorities and
women and require that such legislation run a unique political gauntlet.
Plaintiffs' argument does not require that, once supporters of race- and
gender-conscious affirmative action have suceeded at the ballot box, their
victory can never be undone. Nothing in the Constitution requires that the
political system guarantee victory to those who support affirmative action.
The body that enacts an affirmative action measure is free, of course, to
repeal it.[FOOTNOTE 35] See Crawford, 458 U.S. at 539. In short, those
who support race- and gender-conscious affirmative action must compete
within the neutral rules of the political process-the 14th Amendment
expects that in the democratic struggle, the interests of minorities and
women will sometimes prevail, and will sometimes be defeated. See
Hunter, 393 U.S. at 394 (Harlan, J., concurring) (noting that neutral rules
structuring the political process "will sometimes operate in favor of one
faction; sometimes in favor of another").
Once those who support race- and gender-conscious affirmative action
prevail at one level of government, however, the Equal Protection Clause
will not tolerate an effort by the vanquished parties to alter the rules of the
game-solely with respect to this single issue-so as to secure a reversal of
fortunes. Plaintiffs have borne their burden of showing that Proposition
209, by removing authority over race- and gender-conscious affirmative
action to "a new and remote" level of government, has precisely such an
effect. Such a reordering of the political process is tantamount to vote
dilution in the most literal sense: the relevant voting pool is effectively
expanded until the prior victory is undone. Cf. Gomillion v. Lightfoot, 364
U.S. 339 (1960) (holding that a state may not impair the voting rights of
minorities under the guise of reapportionment). Where such a political
restructuring is aimed at a subject of particular interest to minorities and
women, it is particularly problematic, and the Equal Protection Clause
demands that it be subjected to heightened judicial scrutiny. "A law
declaring that in general it shall be more difficult for one group of citizens
than for all others to seek aid from the government is itself a denial of
equal protection in the most literal sense." Romer v. Evans, 116 S. Ct.
1620, 1628 (1996).
For the reasons set forth above, the Court finds that plaintiffs have
demonstrated a probablity of success on the merits of their equal
protection claim.
B.Likelihood of Success on Plaintiffs' Preemption Claims
1.Introduction
Plaintiffs assert that Proposition 209 violates the Supremacy Clause of the
United States Constitution by proscribing governmental entities from
voluntarily employing race- and gender-conscious affirmative action as a
remedy for the effects of past and present discrimination. Plaintiffs base
their contention on the hypothesis that Congress intended to preserve
voluntary affirmative action as a means to attain the goals embodied in
three federal civil rights acts-Titles VI and VII of the Civil Rights Act of
1964 and Title IX of the Education Amendments of 1972.[FOOTNOTE
36] By outlawing race- and gender-conscious affirmative action, plaintiffs
argue, Proposition 209 conflicts and interferes with the objectives of the
three federal civil rights acts. Consequently, plaintiffs conclude that
Proposition 209 must be invalidated by the Supremacy Clause of the
United States Constitution.
Article VI of the United States Constitution states, in part, "[t]his
Constitution and the Laws of the United States shall be the supreme Law
of the Land." In general, preemption is not to be lightly presumed under
the Supremacy Clause. California Federal Sav. and Loan Ass'n v. Guerra,
479 U.S. 272, 281 (1987). Nevertheless, the Supremacy Clause has been
interpreted to require preemption of state laws in certain
circumstances.[FOOTNOTE 37] The Supreme Court has enunciated two
basic doctrines of preemption: conflict preemption and field preemption.
2.Preemption of State Law by Title VII
a.Field Preemption
Plaintiffs raise no field preemption claim and Congress plainly did not
intend to "fill the field" of employment antidiscrimination law when it
enacted Title VII. 42 U.S.C. section 2000h-4 ("Nothing contained in any
title of this Act shall be construed as indicating an intent on the part of
Congress to occupy the field in which any such title operates to the
exclusion of state laws on the same subject matter "); See Guerra, 479 U.S.
at 282.[FOOTNOTE 38]
b.Conflict Preemption
Conflict preemption bars the application of any state law that contravenes
federal law. This type of preemption occurs when an individual or entity
cannot simultaneously conform to state and federal law. Florida Lime &
Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963) When
compliance with both federal and state law is impossible the state law
must relent. California v. ARC America Corp., 490 U.S. 93, 100 (1989)
(quoting Florida Lime, 373 U.S. at 142-143).
State law is also preempted when it "stands as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress." International Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987)
(quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)). As under other
forms of preemption, the ultimate touchstone of an obstacle preemption
analysis is the Congressional purpose embodied in the federal legislation.
Wisconsin Dept. of Industry, Labor and Human Relations v. Gould, Inc.,
475 U.S. 282, 290 (1986). Obstacle preemption, however, further requires
a court to examine the methods Congress has chosen to achieve its
purposes. To the extent a state law interferes with the manner in which
Congress intended the federal law to operate, the state law is preempted-
even where the state and federal laws share common goals. Gade v.
National Solid Wastes Management Ass'n., 505 U.S. 88, 103
(1992).[FOOTNOTE 39]
i.Actual Conflict Preemption
Plaintiffs contend that Proposition 209 is in actual conflict with Title VII.
See Florida Lime, 373 U.S. at 142-143. To establish that an entity cannot
simultaneously comply with both Title VII and Proposition 209, a plaintiff
must demonstrate that some action required by Title VII simultaneously
violates Proposition 209. Plaintiffs argue that, at times, voluntarily-
adopted race- or gender-conscious remedies are the sole means of
compliance with Title VII, and therefore Proposition 209 must be
preempted under Florida Lime. Plaintiffs sole citation regarding this
supposition is the First Circuit's review of the Boston Police Department's
consent decree under the standard enunciated in Croson. Stuart v. Roache,
951 F.2d 446 (1st Cir. 1991). While Stuart presents a factual predicate that
likely could have served as the basis for a successful Title VII action, it is
by no means obvious that the development of an affirmative action plan
was the only alternative available that would have allowed the police
department to avoid liability. Cf. 42 U.S.C. 2000e-2(j).
Plaintiffs further argue that Proposition 209 is in actual conflict with Title
VII because that an entity might not be able to comply simultaneously
with Proposition 209 and a court order pursuant to Title VII that mandates
a race- or gender-conscious remedy.[FOOTNOTE 40] Plaintiffs have not
demonstrated that the "actual conflict" preemption doctrine of Florida
Lime applies with equal force when an entity cannot concurrently obey the
dictates of state law and a court order pursuant to a federal
law.[FOOTNOTE 41]
For the foregoing reasons the Court finds that plaintiffs have not
demonstrated a likelihood of success on the merits of their claim that
Proposition 209 actually conflicts with Title VII.
ii.Obstacle Preemption
Plaintiffs further urge this Court to find that Proposition 209 runs afoul of
the obstacle preemption doctrine because it interferes with the
congressional purposes embodied in Title VII. Before this Court can find
that Proposition 209 "stands as an obstacle" to the fulfillment of
Congressional purposes, it must determine that one of those purposes was
to preserve voluntary race- and gender-conscious affirmative action as an
option for employers under Title VII. Merely showing that such
affirmative action is permissible under Title VII is insufficient to support a
finding of preemption. If Congress did not intend to preserve voluntary
affirmative action as an option, and if such affirmative action is simply
one of several equally effective means available to reach the goals of Title
VII, banning voluntary affirmative action would not impede the realization
of Congress' purpose.
While plaintiffs must demonstrate more than the permissibility of
voluntary race- and gender-conscious affirmative action, they need not, as
defendants suggest, show that affirmative action is mandated by Title VII.
Rather, demonstrating either that (1) the discretion to utilize voluntary
affirmative action is necessary to achieve the objectives of Congress or (2)
such affirmative action is a method Congress intended to preserve under
Title VII is sufficient to establish that the prohibition of affirmative action
would interfere with Congressional intent.
The primary source of Congressional intent is the plain language of the
statute. Unfortunately, the statutory language of Title VII fails to address
whether Congress intended to preserve the option of utilizing voluntary
race- and gender-conscious affirmative action. The sole reference to race-
and gender-based preferences in Title VII simply indicates that Title VII
should not be construed to require the adoption of preferences. 42 U.S.C.
section 2000e-2(j) ("Nothing contained in this subchapter shall be
interpreted to require any [entity] subject to this subchapter to grant
preferential treatment to any individual or to any group because of the
race, color, religion, sex, or national origin of such individual or group
").[FOOTNOTE 42]
Because Title VII is silent on the issue of Congress' intent regarding the
role of voluntary race- and gender-conscious affirmative action under the
Title VII schema, this Court must to turn to the Equal Employment
Opportunity Commission's ("EEOC") interpretation of the statute.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467
U.S. 837, 842-843 (1984) ("If the court determines Congress has not
directly addressed the precise question at issue, the court does not simply
impose its own construction on the statute the question for the court is
whether the agency's answer is based on a permissible construction of the
statute.").
The EEOC Guideline explaining the role of voluntary affirmative action
under Title VII states: "Voluntary affirmative action to improve
opportunities for minorities and women must be encouraged and protected
in order to carry out the Congressional intent embodied in title VII." 29
C.F.R. 1608.1(c). The EEOC guideline recognizes that Congress intended,
as one of its central objectives, to encourage voluntary compliance with
the statute. "The principle of nondiscrimination in employment and the
principle that each person subject to Title VII should take voluntary action
to correct the effects of past discrimination without awaiting litigation, are
mutually consistent and interdependent methods of addressing social and
economic conditions which precipitated the enactment of Title VII." Id.
The EEOC has thus concluded that permitting voluntary affirmative action
is crucial if entities are to comply voluntarily with Title VII: "The
importance of voluntary affirmative action on the part of employers is
underscored by Title VII of the Civil Rights Act of 1964, Executive Order
11246, and related laws and regulations-all of which emphasize voluntary
action to achieve equal employment opportunity." 29 C.F.R. section
1607.17(1).
The EEOC guidelines, which were developed to clarify "uncertainty as to
the meaning and application of Title VII, [which could] threaten the
accomplishment of the clear Congressional intent to encourage affirmative
action," 29 C.F.R. 1608.1(a), reveal that Congress intended to safeguard
the discretion to employ voluntary race- and gender-conscious affirmative
action as a means to allow "flexibility in modifying employment systems
to comport with the purposes of Title VII." 29 C.F.R. 1608.1(c).
A court must give substantial deference to all enforcing agency's
reasonable explications of a statute. NationsBank of North Carolina, N.A.
v. Variable Annuity Life Ins. Co., 115 S. Ct. 810, 813 (1995) ("'It is well
settled that courts should give great weight to any reasonable construction
of a regulatory statute adopted by the agency charged with enforcement of
the statute."); Chevron, 467 U.S. at 845 (quoting U. S. v. Shimer, 367 U.S.
374, 382 (1961)). Courts have not hesitated to show deference to agencies
in the context of a preemption analysis. The Supreme Court, for example,
in finding that a South Dakota statute was preempted by the federal
Payment in Lieu of Taxes Act, gave "substantial deference" to the
Department of Interior's construction of the federal statute. Lawrence
County v. Lead-Deadwood School Dist., 469 U.S. 256 (1985); See also
Retirement Fund Trust of Plumbing v. Franchise Tax Bd., 909 F.2d 1266,
1284-1286 (9th Cir. 1990) (court places significant reliance on Treasury
Department's interpretation of ERISA to find that federal law does not
preempt California Employment Development Department's withholding
procedure); California Hosp. Ass'n v. Henning, 770 F.2d 856 (9th Cir.
1985) (modified, 783 F.2d 946 (9th Cir. 1986)) (relying on Department of
Labor's regulation clarifying Congress' intentions in adopting ERISA,
court finds that California statute not preempted.); cf. Southern Pacific
Transp. Co. v. Public Service Com'n of Nevada, 909 F.2d 352, 356 (9th
Cir. 1990) (appellate court reverses district court's preemption analysis
because "district court failed to accord sufficient deference to the
Department of Transportation's construction of its own regulations").
The Supreme Court has generally given the same level of deference to the
EEOC's interpretations of Title VII as it gives to other agency
interpretations of statutes they are charged with enforcing. For example, in
Oscar Mayer & Co. v. Evans, 441 U.S. 750, 761 (1979), the Supreme
Court stated that the EEOC guidelines are entitled to "great deference."
See also Albemarle Paper Co. v. Moody, 422 U.S. 405, 431 (1975);
Espinoza v. Farah Mfg. Co., Inc., 414 U.S. 86, 94 (1973); Griggs v. Duke
Power Co., 401 U.S. 424, 433-434 (1971)). Those holdings were
reaffirmed in E.E.O.C. v. Commercial Office Products Co., 486 U.S. 107,
115 (1988) ("It is axiomatic that the EEOC's interpretation of Title VII, for
which it has primary enforcement responsibility, need not be the best one
by grammatical or any other standards [it] need only be reasonable to be
entitled to deference.") (emphasis added).[FOOTNOTE 42]
As explained below, the EEOC conclusion that Congress intended to
preserve the option to utilize race- and gender-conscious affirmative action
under Title VII surpasses the standard of reasonableness.[FOOTNOTE 43]
See, e.g., Local No. 93, Intern. Ass'n of Firefighters, AFL-CIO C.L.C. v.
City of Cleveland, 478 U.S. at 516.
The EEOC's conclusion is based on a two-tiered rationale: (1) Congress
intended voluntary compliance to be a purpose of Title VII, and (2) that
the preservation of voluntary affirmative action is central to that
compliance. The EEOC rationale is consistent with court decisions that
have found that permitting voluntary compliance is integral to the
purposes of Title VII. Local No. 93, 478 U.S. at 515 ("Congress intended
voluntary compliance to be the preferred means of achieving the
objectives of Title VII."); Weber, 443 U.S. at 204 ("The very statutory
words [were] intended as a spur or catalyst to cause 'employers and unions
to self-examine and to self-evaluate their employment practices and to
endeavor to eliminate, so far as possible, the last vestiges of an unfortunate
and ignominious page in this country's history.'").
The EEOC's corollary finding that voluntary affirmative action is not
merely permissible, but essential to allow voluntary compliance is also
buttressed by Supreme Court interpretation of Title VII. According to the
Supreme Court, "the imposition of a requirement that public employers
make findings that they have engaged in illegal discrimination before they
engage in affirmative action programs would severely undermine public
employers' incentive to meet voluntarily their civil rights obligations . This
result would clearly be at odds with this Court's and Congress' consistent
emphasis on 'the value of voluntary efforts to further the objectives of the
law.'" Wygant, 476 U.S. at 290 (O'Connor, J., concurring); accord Local
93, 478 U.S. at 516 (quoting EEOC guideline that states voluntary
affirmative action must be "encouraged and protected" in the context of a
finding that "Congress intended voluntary compliance to be the preferred
means of achieving the objectives of Title VII").
In sum, the EEOC Guidelines explicitly state that Congress intended to
"encourage and protect" voluntary affirmative action as a method to
achieve the objectives of Title VII. It is manifest from the Guidelines and
the jurisprudence supporting their rationale that Congress meant to
preserve the option to comply voluntarily with Title VII and that the
capacity to utilize race- and gender-conscious affirmative action is
fundamental to maintaining the potential of voluntary compliance. The
EEOC's interpretation of Title VII compels this Court to find that
Congress intended to preserve discretion for employers to utilize voluntary
affirmative action.[FOOTNOTE 44]
The Defendant-Intervenors argue that even if Congress intended to
preserve the discretion to use race- and gender-conscious affirmative
action under Title VII, Proposition 209 merely reflects California's
decision not to exercise that discretion. The plain language of Title VII
and the rationales behind voluntary affirmative action's role under the
statute, however, necessitate the conclusion that Congress intended that
the discretion to use race- and gender-conscious preferences be exercised
employer level.
Congress created the alternative to use voluntary affirmative action as a
method of voluntary compliance with Title VII that would not engender
further liability. As noted on several occasions by the Supreme Court,
Title VII could potentially have put employers in the untenable position
between Title VII liability for past acts of discrimination and Title VII
liability for future preferences to remedy discrimination. See, e.g.,
Wygant, 476 U.S. at 291 (O'Connor, J., concurring) ("[P]ublic employers
are trapped between the competing hazards of liability to minorities if
affirmative action is not taken to remedy apparent employment
discrimination and liability to nonminorities if affirmative action is
taken."); Weber, 443 U.S. at 210 (Blackmun, J., concurring) ("If Title VII
is read literally, on the one hand [employers] face liability for past
discrimination against blacks, and on the other they face liability to whites
for any voluntary preferences adopted to mitigate the effects of prior
discrimination against blacks.").
While the plain language of Title VII places employers between these
equally perilous alternatives, voluntary affirmative action affords a safe
passage. See Johnson, 480 U.S. at 645 (Stevens, J., concurring) ("The
logic of antidiscrimination legislation requires that judicial constructions
of Title VII leave 'breathing room' for employer initiatives to benefit
members of minority groups."). It follows that Congress intended the
persons or entities potentially liable under Title VII to be entrusted with
the power to avail themselves of the safe passage provided by voluntary
affirmative action.[FOOTNOTE 45]
This conclusion is supported by the legislative history of Title VII. When
enacting Title VII, Congress chose neither to mandate nor prohibit the use
of affirmative action; instead it decided to leave determinations regarding
the appropriateness of affirmative action to persons making the day-to-day
employment decisions. "[T]he problems raised by these controversial
questions [surrounding preferential treatment and quotas in employment]
are more properly handled at a governmental level closer to the American
people and by communities and individuals themselves." Weber, 443 U.S.
at 207 n.7 (quoting 110 Cong. Rec. 15893 (1964)); Local 93, 478 U.S. at
520 (quoting H.R. Rep. No 914, 88th Cong., 1st Sess., pt. 2, p. 29 (1962))
(noting that key support for Title VII was only obtained after it was
apparent that "management prerogatives, and union freedoms [were] to be
left undisturbed to the greatest extent possible").[FOOTNOTE 46]
The State of California is not subject to employer liability under Title VII
for all past and present discriminatory actions taken against all state, local,
and municipal public employees in the state nor does the State of
California make the day-to-day decisions regarding the public employees
in California. As a result, Congress could not have intended that the State
of California would be the appropriate body to exercise, on behalf of every
individual public employer in California, the discretion to use voluntary
race- and gender-conscious affirmative action.
c.Conclusion
In light of the EEOC Guideline and supporting case law, we conclude that
Congress intended to protect employers' discretion to utilize race- and
gender-conscious affirmative action as a method of complying with their
obligations under Title VII. Proposition 209, by eliminating the discretion
to utilize race- and gender-conscious affirmative action, contravenes this
Congressional purpose. Further, Congress intended to allow employers to
use affirmative action as a safe passage to compliance with Title VII.
Proposition 209 obstructs the passageway and forces many employers into
a place akin to the Strait of Messina where they confront the Scylla of
Title VII and Charybdis of Proposition 209. Proposition 209, therefore,
also contravenes Congress' intent regarding the use of affirmative action as
a method to achieve the goals of Title VII.
For these reasons, this Court finds that plaintiffs have demonstrated a
likelihood of prevailing on the theory that Proposition 209 violates the
Supremacy Clause under the doctrine of obstacle
preemption.[FOOTNOTE 47]
3.Preemption of State Law by Titles VI and IX
Plaintiffs further contend that Proposition 209 violates the Supremacy
Clause by interfering with the purposes and methods of Titles VI and IX.
In order to establish a likelihood of prevailing on this theory, plaintiffs
must show, just as they must show in the Title VII context, that Congress
intended to accord voluntary race- and gender-conscious affirmative action
a hallowed position within the structure of Titles VI and IX.
As in the Title VII context, nothing on the face of Titles VI or IX indicates
that Congress intended to maintain voluntary affirmative action under the
two statutes.[FOOTNOTE 48] As noted above, where a statute is silent, a
court must look for guidance from the agencies charged with enforcing the
statute. Agency interpretations of Titles VI and IX have addressed some
aspects of affirmative action, but have not reached the question of whether
Congress intended the statutes to preserve the option of using voluntary
affirmative action.
Agency regulations, on the one hand, state that in some instances, Title VI
and IX regulations require the use of affirmative action, "[i]n
administering a program which the recipient has previously discriminated
against persons the recipient must take affirmative action to overcome the
effects of prior discrimination." 34 C.F.R 100.3(b)(6); 34 C.F.R. 106.3(a)
("[i]f the Assistant Secretary finds that a recipient has discriminated
against persons on the basis of sex such recipient shall take such remedial
action as the Assistant Secretary deems necessary to overcome the effects
of such discrimination.").
A showing that affirmative action is, at times, required under Title VI and
IX cannot support a finding of preemption. Failure to comply with Titles
VI and IX generally results in a cessation of federal funds. Consequently,
affirmative action that is required by Titles VI and IX is permissible under
Proposition 209. Cal. Const. art. 1, section 31(e) ("Nothing in this section
shall be interpreted as prohibiting action which must be taken to establish
or maintain eligibility for any federal program, where ineligibility would
result in a loss of federal funds to the state."). Because Proposition 209
allows required actions under Titles VI and IX no conflict could transpire
between actions required by the statutes and Proposition 209.
The regulations interpreting Title VI and IX also discuss the permissive
use of affirmative action. "Even in absence of such prior discrimination, a
recipient in administering a program may take affirmative action to
overcome the effects of conditions which resulted in limiting participation
by persons of a particular race, color, or national origin." 34 C.F.R.
100.3(b)(6)(ii); 34 C.F.R. 106.3(b) ("[i]n the absence of a finding of
discrimination on the basis of sex a recipient may take affirmative actions
to overcome the effect of conditions which resulted in limited participation
therein by persons of a particular sex.").
The mere fact that affirmative action is permissible under the Title VI and
IX regulations, and some judicial interpretation, does not require
preemption of a state law that prohibits affirmative action. Simply
obstructing an action that is allowed under federal law does not, in itself,
raise preemption concerns unless there is some showing that the action is
necessary to fulfilling the purposes of the federal law. The plain language
and agency interpretations of Titles VI and IX do not establish that any
Congressional purposes are thwarted by Proposition 209.
Recognizing the shortcomings of the typical sources of Congressional
intent regarding the role of voluntary affirmative action under Titles VI
and IX, plaintiffs attempt to employ interpretations of Title VII as a means
to elucidate the legislative intent behind Titles VI and IX. It is apparent,
however, that the intent and purposes of Titles VI and IX, which must be
the central focus for preemption purposes, are not identical to those of
Title VII. When Title VI was passed, "Congress was legislating to assure
federal funds would not be used in an improper manner. Title VII, by
contrast, was enacted pursuant to the commerce power . Title VII and Title
VI, therefore, cannot be read in pari materia" in all contexts. Weber, 443
U.S. at 206 n.6. Likewise, Title IX was enacted under Congress' spending
power and also cannot be read as precisely parallel to Title
VII.[FOOTNOTE 49]
It is especially clear that plaintiffs cannot rely on Title VII to establish
Congress' intent regarding Titles VI and IX in the context of affirmative
action. The Supreme Court has already noted that Congress had differing
intentions for what constitutes permissible affirmative action under the
three statutes: "[W]e do not regard as identical the constraints of Title VII
and the Federal Constitution on voluntarily adopted affirmative action
plans." Johnson, 480 U.S. at 632. Meanwhile, the constraints of Title VI
parallel those established by the Constitution. Bakke, 438 U.S. at 285.
Further, unlike under the Title VI paradigm, the standard for what
constitutes permissible affirmative action under Title IX cannot be based
on current Constitutional limitations.[FOOTNOTE 50]
The statutory language, agency interpretation, and legislative history of
Titles VI and IX do not establish that Congress intended to preserve
voluntary race- and gender-conscious affirmative action as an option for
entities covered by the two statutes. It is apparent, moreover, that plaintiffs
cannot rely on the methods Congress chose to effectuate Title VII to
establish that Proposition 209 is preempted by Titles VI and IX.
Consequently, plaintiffs have failed to demonstrate to the Court a
likelihood of success on the merits of their claim that Proposition 209
violates the Supremacy Clause because it stands as an obstacle to the
methods Congress intended entities to employ in furthering the purposes
of Titles VI and IX.
C.Irreparable Injury
As noted above, plaintiffs have demonstrated a probability of success on
the merits of their equal protection claim. They have also demonstrated a
likelihood of success on one of their preemption claims. Although some
courts have held that this showing sufficiently demonstrates a possibility
of irreparable harm, see, e.g., Bery v. City of New York, 97 F.3d 689, 693-
94 (2d Cir. 1996), the Court will separately address this issue, focusing
both on the irreparability and the immediacy of the harm alleged by
plaintiffs.
Where the deprivation of a constitutional right is involved, courts
generally hold that no further showing of irreparability is required. See
Associated Gen. Contractors, 950 F.2d at 1412; 11A Wright & Miller,
Federal Practice and Procedure section 2948.1. The Court is satisfied, at
least with respect to plaintiffs' equal protection claim, that the deprivation
of a constitutional right-"the right to full participation in the political life
of the community"-is squarely at issue in the present case. Seattle, 458
U.S. at 467. To the extent Proposition 209 imposes a new and substantial
political burden on those, and only those, who support race- and gender-
conscious affirmative action, it inflicts an immediate and ongoing injury
that is not amenable to monetary remedy. The very real threat that the
enforcement and implementation of Proposition 209 may lead to the
dismantling of existing, otherwise constitutional, affirmative action
programs also constitutes an irreparable harm to members of the plaintiff
class.
Turning to the imminence of the alleged injury, the Court is also satisfied
that plaintiffs have shown that injury to members of the plaintiff class is
not only possible, but almost certain, in the absence of a preliminary
injunction. Proposition 209 is self-executing, and thus immediately
binding on all state and local governmental units. The defendant class
representatives, Governor Wilson and Attorney General Lungren, have, for
their part, made plain their intention to implement Proposition 209 as
expeditiously as possible, and have taken a number of preliminary steps to
that end. The University of California system has also indicated its
intention, in the absence of a preliminary injunction, to implement
Proposition 209 immediately. Other members of the defendant class have
also announced their intention, in the absence of an injunction, to modify
their activities in accordance with Proposition 209. In addition, a number
of private suits have been brought against defendant class members in
state court challenging existing affirmative action programs, including
suits brought by Governor Wilson and defendant-intervenor CADP.
Perhaps most importantly, the Court notes that the core equal protection
injury identified by plaintiffs-impaired access to the political process at all
levels of state and local government-would, in the absence of a
preliminary injunction, be felt by the plaintiff class immediately.
The balance of hardships, moreover, tips decidedly in plaintiffs' favor. In
contrast to the injury outlined above, a preliminary injunction would
impose little hardship on members of the defendant class, who would
merely be required to suspend their Proposition 209 implementation plans
pending trial.[FOOTNOTE 51]
The public interest also favors the entry of a preliminary injunction. As an
initial matter, a number of named defendants have urged this Court to act
swiftly and give clear guidance with respect to Proposition 209. This
request, of course, is neutral with respect to the granting or denial of the
present motion. Nonetheless, the Court believes the preservation of the
pre-election status quo not only serves the public need for plain guidance,
but also harmonizes that interest with the compelling interest in remedying
discrimination that underlies existing constitutionally-permissible state-
sponsored affirmative action programs threatened by Proposition 209.
VI.CONCLUSION
Based on the foregoing Findings and Conclusions, this Court rules that:
(1) Plaintiffs have standing to bring this action.
(2) 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.
(3) Plaintiffs have failed to demonstrate a likelihood of success on their
claim that Proposition 209 violates the Supremacy Clause because it
conflicts with, and thus is preempted by, Titles VI and IX of the 1964
Civil Rights Act. (4) Plaintiffs have demonstrated a likelihood of success
on their claim that Proposition 209 violates the Supremacy Clause because
it conflicts with, and thus is preempted by, Title VII of the 1964 Civil
Rights Act.
(5) Plaintiffs have demonstrated that a preliminary injunction is necessary
to protect the plaintiff class from the possibility of irreparable injury.
Accordingly, and good cause appearing, it is HEREBY ORDERED
pursuant to Fed. R. Civ. P. 65 that defendants Governor Pete Wilson and
Attorney General Dan Lungren and all members of the defendant class
that they represent, and their officers, agents, servants, employees and
attorneys, and those in active concert or participation with them, are
restrained and enjoined, pending trial or final judgment in this action, from
implementing or enforcing Proposition 209 insofar as said amendment to
the Constitution of the State of California purports to prohibit or affect
affirmative action programs in public employment, public education or
public contracting.
The aforesaid preliminary injunction shall not preclude the following:
1. all defendants, including members of the defendant class, from
identifying, reviewing and analyzing existing affirmative action
programs.[FOOTNOTE 52]
2. all defendants, including members of the defendant class, from
defending private actions seeking remedies under Article 1, section 31 of
the California Constitution.
3. proceedings in pending state court actions related to Article 1, section
31, including, Wilson v. State Personnel Bd., Sacramento County Superior
Court No. 96 CS01082 and Californians Against Discrimination and
Preferences, Inc. v. The Bd. of Governors of the Calif. Community
Colleges, Sacramento County Superior Court, No. 96 CS03010, and
4. the California Attorney General from defending Article 1, section 31 in
any legal proceeding challenging its validity under the United States
Constitution.[FOOTNOTE 53]
:::::::::::::::::::: FOOTNOTES ::::::::::::::::::::
FN1. For the sake of brevity, the Court will use the term "race" to cover all
of the categories identified in Proposition 209 other than sex.
FN2. The Fourteenth Amendment and 7(a) of the California Constitution
both provide that no person may be denied "the equal protection of the
laws." Titles VI and VII of the 1964 Civil Rights Act, 42 U.S.C. 2000d-e
et seq. prohibit, respectively, discrimination in any project or activity
receiving federal financial assistance on the basis of race, and in
employment on the basis of race and sex. As the ballot argument in favor
of Proposition 209 noted, the initiative "restates the historic Civil Rights
Act." Pls. Exh. 2.
FN3. The city of San Francisco, for example, adopted a race- and gender-
conscious affirmative action program after finding that it was necessary to
counter established discriminatory practices, including "old boy
networks," that prevented minority and women contractors from obtaining
city contracts. Associated Gen. Contractors of Calif. v. Coalition for
Economic Equity, 950 F.2d 1401, 1413-18 (9th Cir. 1991).
FN4. We note that while the exact relationship between the terms
"affirmative action" and "preferences" has yet to be determined, the
following is clear. First, the term "preferences" includes, at a minimum,
programs or policies that use racial or gender classifications. Second, the
term "affirmative action" is generally understood to include, at a
minimum, programs designed to remedy the continuing effects of past
and/or present discrimination which contain a race- or gender-conscious
component. The term "affirmative action" as used in this decision is
intended to refer to such programs. However, to ensure clarity on this
point, and because the term "affirmative action" may be used in other
contexts to refer to programs that are not race- or gender-conscious, the
Court will generally use the longer, but more precise, phrase "race- and
gender-conscious affirmative action" to refer to programs affected by
Proposition 209.
FN5. Pursuant to this Court's Order of November 25, 1996, plaintiffs
represent a class of all persons or entities who, on account of race, sex,
color, ethnicity, or national origin, are or will be adversely affected by
Proposition 209's prohibition of affirmative action programs operated by
the State of California, any state or municipal agency, or any other
political subdivision or governmental instrumentality of the State of
California. The plaintiff class is represented by named plaintiffs Coalition
for Economic Equity, California NAACP, Northern California NAACP,
California Labor Federation, AFL-CIO, Council of Asian American
Business Associations, California Chinese American Citizens' Alliance,
California Chapter of the Women Construction Business Owners and
Executives, United Minority Business Entrepreneurs, Chinese For
Affirmative Action, Black Advocates in State Service, Asian Pacific
American Labor Alliance, La Voz Chicana, Black Chamber of Commerce
of California, and several named individuals.
FN6. Pursuant to this Court's Order of December 16, 1996, defendants
represent a class of all state officials, local government entities or other
governmental instrumentalities bound by Proposition 209. The defendant
class is represented by named defendants Governor Pete Wilson and
Attorney General Daniel Lungren.
FN7. Section 3.5 of Article 3 of the California Constitution provides that
an administrative agency is without power to declare a statute
unconstitutional unless an appellate court has first made a determination
that the statute is unconstitutional. Thus, state agencies may not declare a
state statute invalid under Proposition 209, or otherwise refuse to enforce a
state statute based on Proposition 209, absent a state appellate court ruling
that the statute is unconstitutional.
FN8. At the outset, this Court must address defendants' contention that
these proceedings should be stayed under the "Pullman abstention"
doctrine. Railroad Comm'n of Tex. v. Pullman, 312 U.S. 496 (1941). After
having carefully reviewed the circumstances that defendants have
forwarded in support of their request for abstention, this Court chooses not
to abstain. Defendants have not presented an interpretation of challenged
state law that this Court, in its discretion, believes warrants abstention.
This Court, however, will revisit this area and consider all subsequent
developments and arguments when it considers defendants' regularly
noticed motion to abstain scheduled for January 6, 1997.
FN9. The Legislative Analyst is required, pursuant to the California
Elections Code, to prepare a "concise summary" of the general meaning of
each initiative as well as an analysis. Cal. Elec. Code 9085-86.
FN10. In formulating this description, the LAO extensively reviewed
materials pertaining to Proposition 209, including "documents from
proponents and opponents, journal articles, media coverage, legislative
hearings, numerous conversations with proponents, opponents,
government officials and other experts." Pls. Exh. 2, Taylor Decl. 2.
FN11. Ward Connerly, co-signer of this ballot argument, also made it
clear in his public statements that Proposition 209 was intended to end
affirmative action programs. In March 1996, for example, Connerly
explained to reporters why he had decided against trying to end racial
preferences in the University of California's ("UC") outreach programs for
high school students and financial aid criteria: "Connerly said Wednesday
that UC had already been torn apart by his successful push last summer to
end racial preferences in admissions and hiring, and that affirmative action
programs in California schools would most likely be banned anyway by
[Proposition 209]. 'What do I gain by going ahead and forcing a
showdown [?] The public's going to end affirmative action in November.'"
Pls. Exh. 4. Governor Wilson, another co-signor of the ballot initiative,
also told reporters in March of 1995 that although the California
Legislature was unwilling to "confront the issue of reverse discrimination
arising from affirmative action programs the people of California will get
that opportunity at the ballot box." Id.
FN12. The racial and gender breakdown of the vote was as follows:
VOTER YES(%)NO(%) Male 61% 39% Female 48% 52%
White 63% 37%
Black 26% 74%
Latino 24% 76%
Asian 39% 61%
Pinkus Decl. and attachment. As the above reflects, none of the above
groups voted entirely for or against Proposition 209. However, "White
voters were the only racial or ethnic group supporting 209." Id.
FN13. Prior to the November election, Governor Wilson filed suit in
Sacramento Superior Court (96-CS01082) against state agencies
challenging the constitutionality of certain affirmative action programs.
After the election, Governor Wilson promptly moved to amend his suit to
include Proposition 209 as a basis for invalidating the challenged
programs. On November 14, 1996, the California Court of Appeal ruled
that the amendment could not be made pending resolution of a writ
petition on a judicial disqualification order. However, Governor Wilson
intends to add a Proposition 209 claim to the case "at the earliest available
opportunity." Defendants' Supplemental Memorandum in Opposition to
Motion for Preliminary Injunction at 5 n.2.
FN14. We also note that on November 25, 1996, the Governor and
Attorney General both declined to agree to a moratorium on actions to
enforce Proposition 209 pending further proceedings in this case. See
Order Re Temporary Restraining Order, November 27, 1996, at 6.
FN15. Given the self-executing nature of Proposition 209, all other
members of the defendant class are also required to implement Proposition
209 immediately. See Cal. Const. art. 1, 31(h).
FN16. The record in this case includes references to a range of affirmative
action prog |