Coalition for Economic Equity v. Wilson, No. C 96-4024 TEH.

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
• Writing for the Court: Thelton E. Henderson
• Citation: 946 F.Supp. 1480
• Parties: COALITION FOR ECONOMIC EQUITY, et al., Plaintiffs, v. Pete WILSON, et al., Defendants.
• Decision Date: 23 December 1996
• Docket Number: No. C 96-4024 TEH.

946 F.Supp. 1480 COALITION FOR ECONOMIC EQUITY, et al., Plaintiffs,
v.
Pete WILSON, et al., Defendants. No. C 96-4024 TEH. United States District Court, N.D. California. December 23, 1996.

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Edward M. Chen, American Civil Liberties Union, Foundation of Northern CA Inc., San Francisco, CA, Mark D. Rosenbaum, David S. Schwartz, Taylor Flynn, Silvia Argueta, Daniel Tokaji, ACLU Foundation of Southern California, Los Angeles, CA, William C. McNeill, III, Julian A. Gross, Employment Law Center, Legal Aid Society of S.F., San Francisco, CA, Stewart Kwoh, Julie Su, Asian Pacific American Legal Center of Southern CA, Los Angeles, CA, Evan H. Caminker, University of California at Los Angeles, School of Law, Los Angeles, CA, Eva J. Paterson, Theodore Hsien Wang, Lawyers Committee For Civil Rights of San Francisco Bay Area, San Francisco, CA, Julie Goldscheid, Martha F. Davis, NOW Legal Defense and Education Fund, New York, NY, Karl M. Manheim, Loyola Law School, Los Angeles, CA, Abby J. Leibman, California Women's Law Center, Los Angeles, CA, Judith E. Kurtz, Equal Rights Advocates, Inc., San Francisco, CA, Joseph S. Avila, Avila & Putnum, Los Angeles, CA, Elliot M. Mineberg, People For the American Way, Washington, DC, Christopher F. Edley, Jr., Harvard Law School, Cambridge, MA, Brad Seligman, The Impact Fund, Berkeley, CA, for The Coalition for Economic Equity, California NAACP, Northern California NAACP, AFL-CIO, Council of Asian American Business Associations, CA, Chinese American Citizens' Alliance, Women Construction Business Owners and Executives, California Chapter, United Minority Business Entrepreneurs, Chinese for Affirmative Action, Black Advocates in State Service, Asian Pacific American Labor Alliance, LaVoz Chicana, Black Chamber of Commerce of California, Michelle Bennett, Nancy Burns, Floyd Chavez, Christopher Clay, Dana Cunningham, Iran Celeste Davila, Shevada Dove, Jessica Lopez, Virginia Mosqueda, Salvador Ochoa, Clifford Tong.

Glenn Rothner, Ellen Greenstone, Rothner Segall & Bahan, Pasadena, CA, for California Labor Federation.

Linda Cabatic, CA State Atty. General, Sacramento, CA, for Pete Wilson, Daniel E. Lungren, Joanne Corday Kozberg, James Gomez.

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Joseph R. Symkowick, CA State Dept. of Education, Sacramento, CA, Joanne Lowe, Deputy General Counsel, Sacramento, CA, for Delaine Easton.

C. Ellen Pilsecker, Ian Fan, San Diego, CA, for San Diego County.

Victor J. Westman, County Counsel, Martinez, CA, Phillip S. Althoff, Martinez, CA, for Contra Costa County.

Thomas G. Hendricks, County Counsel's Office, San Rafael, CA, for Marin County.

Nicholas George-Rodriguez, Lawrence S. Newberry, Tracy Webb, City Attorney's Office, Pasadena, CA, for City of Pasadena.

Manuel S. Klausner, Kindel & Anderson, Los Angeles, CA, Sharon L. Browne, Mark T. Gallagher, Pacific Legal Foundation, Sacramento, CA, Michael A. Carvin, Charles J. Cooper, Cooper & Carvin, Pllc., Washington, DC, for Californians Against Discrimination and Preferences, Inc.

Colleen M. Rohan, San Francisco, CA, for Amicus Curiae Meiklejohn Civil Liberties Institute.

Manuel S. Klausner, Kindel & Anderson, Los Angeles, CA, Donna G. Matias, Institute for Justice, Washington, DC, for Amicus Curiae Institute for Justice, Women's Freedom Network, Campaign for a Color-Blind America, Center for Equal Opportunity, U.S. Pan-Asian American Chamber of Commerce Education Foundation, Pacific Research Institute, Center for New Black Leadership, Claremont Institute.

Christopher M. Patti, University Of California, Office of the General Counsel, Oakland, CA, for Richard C. Atkinson.

Tina L. Rasnow, Tina L. Rasnow & Associates, Westlake Village, CA, for Amicus Curiae California Women Lawyers.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER RE PRELIMINARY INJUNCTION

THELTON E. HENDERSON, Chief Judge.

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, § 31(a).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.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

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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, 109 S.Ct. 706, 730, 102 L.Ed.2d 854 (1989) (emphasis added).³ Quotas are not permitted. See, e.g., Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Gender-based programs, under existing law, are also subject to a heightened level of scrutiny. U.S. v. Virginia, ___ U.S. ___, ___, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735 (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.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, 102 S.Ct. 3187, 3193, 73 L.Ed.2d 896 (1982); see also Romer v. Evans, ___ U.S. ___, ___, 116 S.Ct. 1620, 1628, 134 L.Ed.2d 855 (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 non-neutral 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.

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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 plaintiffs⁵ have satisfied their burden of demonstrating that defendants⁶ 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...