Court Backs Affirmative Action Ban Civil Rights Groups Had Sought Rehearing On California Measure

A federal appeals court ruled Thursday it will not reconsider an earlier decision by three of its judges upholding the constitutionality of California’s voter-approved ban on preferences based on race and gender. The decision means the affirmative action ban could become law in a week.

The 9th U.S. Circuit Court of Appeals in San Francisco said a request by civil rights groups for a rehearing on Proposition 209 had failed to win approval by a majority of 18 judges voting on the issue. It did not disclose a voting breakdown.

In a strongly worded decision last April reflecting the politically charged nature of the issue, a three-judge panel of the 9th Circuit overturned a ban on enforcement of Proposition 209 imposed by a lower court just weeks after its November endorsement by voters. The initiative made California the first state to attempt to roll back affirmative action by barring preferential treatment in public hiring, contracting and education.

Mark Rosenbaum, legal director for the Southern California branch of the American Civil Liberties Union, said he will immediately ask the 9th Circuit to continue a ban on enforcement of Proposition 209 while he appeals to the U.S. Supreme Court. If that fails, Rosenbaum said he will ask the high court to stay enforcement of the measure while it considers whether to grant a review.

If neither court intervenes, the affirmative-action ban can be enforced in seven days, Rosebaum said. In that case, agencies from the state government in Sacramento to the smallest water district would have to re-examine their hiring and contracting practices and attempt to comply.

“We are extremely disappointed by the ruling and find it hard to understand how a majority of the court concluded that this case was not of ‘exceptional importance’ to all citizens of California, which is the legal standard for granting a rehearing,” Rosenbaum said.

Michael Carvin, who argued against preferences before the 9th Circuit Court on behalf of the Washington-based Center for Individual Rights, said he was confident the Supreme Court will not grant a review of the case.