Proposition 209 On Hold — Affirmative Action Continues in California

Implementation of Proposition 209, the amendment to the California constitution that prohibits affirmative action in public employment, education, and contracting, has been temporarily blocked by a federal judge. Chief U.S. District Judge Thelton Henderson issued a temporary restraining order in response to a lawsuit against Proposition 209 brought by the American Civil Liberties Union of Southern California.

Judge Henderson, a former Justice Department civil rights prosecutor, has said there is a “strong probability” that Prop 209 will be proven unconstitutional at a trial and be struck down permanently. The temporary restraining order blocks the state of California from implementing the new amendment at least until a scheduled hearing on December 16, at which point Judge Henderson could issue a permanent injunction to prevent implementation of Prop 209 until a trial is held.

The ACLU lawsuit argues that Proposition 209 is unconstitutional because it singles out women and minorities as groups that cannot benefit from affirmative action to remedy past discrimination. Other groups such as the disabled and veterans are not affected by Proposition 209.

The Equal Protection Clause of the 14th Amendment to the U.S. Constitution “not only prohibits the outright exclusion of women and minorities from the political process, but also prohibits more subtle distortions of the political process that place special burdens on the ability of women and minorities to achieve beneficial legislation,” wrote Judge Henderson in his temporary restraining order.


The Washington Post -- November 28, 1996; The New York Times -- December 1, 1996; Judge Henderson's Temporary Restraining Order -- November 27, 1996

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