Coalition for Economic Equity v. Wilson, AFL-CIO

Page 692

122 F.3d 692

66 USLW 3171, 97 Cal. Daily Op. Serv. 6966,

97 Daily Journal D.A.R. 11,270

The 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; 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; La Voz Chicana; Black Chamber of Commerce of California; Michele Bennett; Nancy Burns; Floyd Chavez; Christopher Clay; Dana Cunningham; Iran Celeste Davila; Shevade Dove, nfr Melodie Dove; Jessica Lopez; Virginia Mosqueda; Salvador Ochoa; Clifford Tong, Plaintiffs/Appellees, v. Pete WILSON, Governor; Daniel E. Lungren, Attorney General for the State of California; Joanne Corday Kozberg, Secretary of State and Consumer Services Agency and Cabinet Member; James Gomez, Dir., Dept. of Corr., Defendants/Appellants, Californians Against Discrimination and Preferences, Inc., Defendant-Intervenor/Appellant.

Nos. 97-15030, 97-15031.

United States Court of Appeals, Ninth Circuit.

Argued Feb. 10, 1997.

Submission Deferred, and

Submitted March 3, 1997.

Decided April 8, 1997.

As Amended on Denial of Rehearing and Rehearing En Banc

Aug. 21, 1997.

Opinions Regarding Denial of Rehearing En Banc Aug. 28, 1997.

Daniel E. Lungren, Attorney General, Floyd D. Shimomura, Senior Assistant Attorney General, Linda A. Cabatic, Supervising Deputy Attorney General, Marsha A. Bedwell, Deputy Attorney General, Paul H. Dobson, Deputy Attorney General, Sacramento, CA, for defendants-appellants Pete Wilson, Governor, et al.

Michael A. Carvin, Charles J. Cooper, Michael W. Kirk, David H. Thompson, Cooper & Carvin, Washington, DC, Michael E. Rosman, Hans Bader, Center for Individual Rights, Washington, DC, and Manuel S. Klausner, Los Angeles, CA, for defendant-intervenor/appellant Californians Against Discrimination and Preferences, Inc.

Mark D. Rosenbaum, Daniel P. Takaji, ACLU Foundation of Southern California, Los Angeles, CA, Edward Chen, ACLU Foundation of Northern California, San Francisco, CA, and Evan H. Caminker, UCLA School of Law, Los Angeles, CA, for plaintiffs/appellees Coalition for Economic Equity, et al.

G. Scott Emblidge, Deputy City Attorney, San Francisco, CA, for defendants City and County of San Francisco and County of Marin.

Samuel R. Bagenstos, United States Department of Justice, Washington, DC, for amicus curiae United States.

Christine A. Littleton, UCLA School of Law, Los Angeles, CA, for amici curiae Ad Hoc Committee of University of California Faculty and Center for Constitutional Rights.

Alfred C. Pfeiffer, McCutchen, Doyle, Brown & Enersen, San Francisco, CA, David

Benjamin Oppenheimer, Associate Professor of Law, Golden Gate University, San Francisco, CA, for amici curiae American Jewish Congress et al.

Pamela S. Karlan, University of Virginia School of Law, Charlottesville, VA, for amici curiae Alan Brownstein et al.

Tamu K. Sudduth, Morrison & Foerster, San Francisco, CA, for amici curiae A. Ruiz Construction Company and Associates, Inc., Chiang C.M. Construction, Inc., and Cresci Electric, Inc.

Jack D. Forbes, University of California, Davis, for amicus curiae Jack D. Forbes.

Sharon L. Browne, Pacific Legal Foundation, Sacramento, CA, for amici curiae Richard Hanlin, et al.

Theodore B. Olson, Gibson, Dunn & Crutcher, Washington, DC, for amicus curiae Independent Women's Forum.

Clint Bolick, Institute for Justice, Washington, DC, for amici curiae Institute for Justice et al.

G. Michael German, Law Offices of G. Michael German, San Francisco, CA, for amicus curiae Log Cabin Republicans of California.

Frank Wu, Howard University School of Law, Washington, DC, for amici curiae National Asian Pacific American Legal Consortium et al.

Kevin T. Snider, United States Justice Foundation, Escondido, CA, for amici curiae United States Justice Foundation et al.

Appeal from the United States District Court for the Northern District of California, Thelton E. Henderson, District Judge, Presiding. D.C. No. CV-96-4024-TEH.

Before: O'SCANNLAIN, LEAVY and KLEINFELD, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a provision of the California Constitution prohibiting public race and gender preferences violates the Equal Protection Clause of the United States Constitution.

I

A

On November 5, 1996, the people of the State of California adopted the California Civil Rights Initiative as an amendment to their Constitution. The initiative, which appeared on the ballot as Proposition 209, provides in relevant part that

[t]he 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

The California Legislative Analyst's Office portrayed Proposition 209 to the voters as a measure that would eliminate public race-based and gender-based affirmative action programs. 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.

The Ballot Pamphlet also included arguments by proponents and opponents of Proposition 209. Proponents urged a "yes" vote, arguing that:

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.

And two wrongs don't make a right! Today, students 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.

That's just plain wrong and unjust. Government should not discriminate. It must not give a job, a university admission, or a contract based on race or sex. Government must judge all people equally, without discrimination!

And, remember, Proposition 209 keeps in place all federal and state protections against discrimination!

Opponents of Proposition 209 urged a "no" vote, responding that:

California law currently allows tutoring, mentoring, outreach, recruitment, and counseling to help ensure equal opportunity for women and minorities. Proposition 209 will eliminate affirmative action programs like these that help achieve equal opportunity for women and minorities in public employment, education and contracting. Instead of reforming affirmative action to make it fair for everyone, Proposition 209 makes the current problem worse.

....

The initiative's language is so broad and misleading that it eliminates equal opportunity programs including:

--tutoring and mentoring for minority and women students;

--affirmative action that encourages the hiring and promotion of qualified women and minorities;

--outreach and recruitment programs to encourage applicants for government jobs and contracts; and

--programs designed to encourage girls to study and pursue careers in math and science.

Proposition 209 passed by a margin of 54 to 46 percent; of nearly 9 million Californians casting ballots, 4,736,180 voted in favor of the initiative and 3,986,196 voted against it.

B

On the day after the election, November 6, 1996, several individuals and groups ("plaintiffs") claiming to represent the interests of racial minorities and women filed a complaint in the Northern District of California against several officials and political subdivisions of the State of California ("the State"). ² The complaint, brought under 42 U.S.C. § 1983, alleges that Proposition 209, first, denies racial minorities and women the equal protection of the laws guaranteed by the Fourteenth Amendment, and, second, is void under the Supremacy Clause because it conflicts with Titles VI and VII of the Civil Rights Act of 1964, and Title IX of the Educational Amendments of 1972. As relief, plaintiffs seek a declaration that Proposition 209 is unconstitutional and a permanent injunction enjoining the State from implementing and enforcing it.

With their complaint, plaintiffs filed an application for a temporary restraining order ("TRO") and a preliminary injunction. The district court entered a TRO on November 27, 1996, and granted a preliminary injunction on December 23, 1996. ³ The preliminary injunction enjoins the State, pending trial or final judgment, "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." Coalition for Econ. Equity v. Wilson, 946 F.Supp. 1480, 1520-21 (N.D.Cal.1996).

The district court provided extensive findings of fact and conclusions of law in support of the injunction. This lawsuit, the court explained, challenges Proposition 209's prohibition against race and gender preferences, not its prohibition against discrimination. Plaintiffs' constitutional challenge is "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." Id. at...