The Clinton Administration's Opposition to the California Civil Rights Initiative Argues for Affirmative Action Status Quo Apr 97

The California Civil Rights Initiative (CCRI, also known as "Proposition 209") is an amendment to the California State Constitution. On November 5, 1996, CCRI was approved by 54% of California voters including 27% of blacks and majorities of Asian Americans and white women. Proposition 209 states:

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.

On November 6, a coalition of civil rights and other groups defending affirmative action sought a restraining order in Federal District Court in San Francisco. On November 27, Judge Thelton E. Henderson issued the restraining order against the CCRI followed by a preliminary injunction on December 23. The effect of the injunction was to preserve the status quo-thus upholding the implementation of state-funded preferential programs in California. On January 3, the CCRI authors and intervenor proponents seeking to prohibit preferential treatment joined the state of California in appealing Judge Henderson's injunction.

Judge Henderson was of the opinion that there is a "strong probability" that the CCRI violates the equal protection clause of the Fourteenth Amendment because certain classes of citizens (minorities and women) would be burdened by the CCRI in having to achieve passage of a ballot initiative placed before the voters of California in order to overturn the CCRI.

Keep in mind that the CCRI was the first time anywhere that citizens were given an opportunity to vote on the merits of voluntary affirmative action. California voters rejected preferences by a margin of nearly 800,000 votes-a precedent that threatens contemporary affirmative action.

Remember that even though voters have previously been unable to vote on preferences, contemporary affirmative action has nevertheless grown out of presidential Executive Orders, enforcement agency interpretations, and court precedents such as Judge Henderson's opinion upholding preferential treatment.

True, the legislative branch has been a player. Still unclear, however, is the legality of voluntary preferences. Case in point: The Civil Rights Act of 1964 defined affirmative action as a prerogative of the court upon the court's finding of disparate treatment:

(Sec. 706(g)(1)) If the court finds that the respondent has intentionally

engaged in or is intentionally engaging in an unlawful employment practice charged in the complaint, the court may enjoin the respondent from engaging in such unlawful employment practice, and order such affirmative action as may be appropriate, which may include...hiring...or any other equitable relief as the court deems appropriate.

More recently, the Civil Rights Act of 1991 continues to beg the question of the lawfulness of voluntary preferential treatment with the following language:

Sec. 116. Lawful Court-ordered remedies, affirmative action, and

conciliation agreements not affected.

Nothing in the amendments made by this title shall be construed to affect

court-ordered remedies, affirmative action, or conciliation agreements, that are in accordance with the law.

Contrast Section 116 above with Section 107 of the CRA of '91:

Sec. 107. Clarifying prohibition against impermissible consideration of race, color, religion, sex, or national origin in employment practices. (m) Except as otherwise provided in this title, an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.

Department of Justice argues for the status quo

The Justice Department will represent the Clinton Administration's views supporting affirmative action and opposing Proposition 209 in inevitable appeals before the Ninth Circuit Court of Appeals and very possibly before the Supreme Court. According to Attorney General Janet Reno in January:

(W)e think California's Proposition 209, which establishes a sweeping ban on affirmative action in the state, is both unconstitutional and bad policy... By singling out race and gender (as a) distortion to the ordinary political process, Proposition 209 denies equal protection of the laws. A federal judge just enjoined the state from implementing the California initiative. We agree with the court, and the Department of Justice will defend that decision.

(E)fforts in Congress to curtail affirmation action by the federal govern-ment are (also) misguided and counterproductive. The Justice Department, in light of the Adarand decision, is already making certain that federal programs now in place are fair and flexible, and meet the constitutional standard... (W)hen affirmative action is done right, there are no quotas, there are no preferences for the unqualified, and the programs end when their objectives have been achieved (Daily Labor Report, #11, Jan. 16, 1997, E-3).

Because the author has regularly looked to California as a leading indicator of trends including public policy, the Clinton Administration's amicus argument for the status quo upholding affirmative action has been reproduced below so that we can all follow round one of the bidding.

In the U.S. Court of Appeals for the Ninth Circuit.

Coalition for Economic Equity, et al., v. Pete Wilson, et al.

Brief for the United States as amicus curiae in opposition to the

motion for stay pending appeal.

This case involves a constitutional challenge to California's Proposition 209, which generally prohibits race- and gender-conscious affirmative action by state and local officials. The district court entered a preliminary injunction to preserve the status quo pending consideration of plaintiffs' claims on the merits. The Court's order prohibits state and local officials from implementing Proposition 209 by eliminating affirmative action programs across the board.

Intervenor seeks a stay that would alter the status quo and cause Proposition 209 to become immediately enforceable. To obtain a stay, intervenor must establish a likelihood that the district court abused its discretion in reaching the result it did.

Intervenor cannot satisfy that standard here. The district court properly concluded that the Supreme Court's decisions in Hunter v. Erickson, and Washington v. Seattle School District No. 1 (that) a state may not "place unusual burdens on the ability of racial (or gender) groups to enact legislation specifically designed to overcome the 'special condition of prejudice'." Hunter and Seattle prohibit states from singling out such legislation for uniquely burdensome treatment in the political process "by lodging decision-making authority over the question at a new and remote level of government." Proposition 209, like the ballot initiative invalidated in Seattle, singles out measures designed to overcome prejudice for unique and burdensome treatment. Women and minorities seeking narrowly tailored affirmative action programs to respond to discrimination in California must now obtain a state constitutional amendment first, while those seeking preferential treatment on any number of other bases may do so through ordinary state and local political processes. This disparate allocation of burdens violates the equal protection principles set forth in Hunter and Seattle.

The district court's decision does not mandate affirmative action or require its use by any level of government in California. To the contrary, under the terms of that ruling and the Seattle decision on which it is based, units of state and local government are free to decide for themselves, through their normal political process, whether affirmative action is appropriate as a matter of law and policy, and to implement lawful affirmative action programs or repeal them. What the preliminary injunction prohibits, consistent with governing Supreme Court precedent, is Proposition 209's placement of minority groups and women at a unique disadvantage in the state's political structure. The district court surely did not abuse its discretion in maintaining the status quo pending consideration of plaintiff's claims, and this Court ought not alter that status quo by granting a stay.

Interest of the United States

This case involves a constitutional challenge to California's Proposition 209, which was approved in a statewide referendum on November 5, 1996. Proposition 209 adds a new section to the state constitution..."(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." Proposition 209 defines "state" broadly to include any political subdivision or government instrumentally within California; the definition specifically identifies local governments, public institutions of higher education, and school districts as among the entities included within the definition. The proposition applies prospectively only and specifically exempts pre-existing court orders and consent decrees. It also exempts "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.

On November 6, 1966, a group of plaintiffs filed suit in the U.S. District Court for the Northern District of California to challenge the constitutionality of Proposition 209. Plaintiffs contend that Proposition 209 violates the Equal Protection Clause by placing a special burden on the ability of women and minorities to obtain beneficial programs through political process. They also contend that the proposition is preempted by federal law because it prohibits voluntary affirmative action efforts. The district court granted a temporary restraining order on November 27, 1996.

On December 23, 1996, the district court entered a preliminary injunction barring enforcement of Proposition 209 pending a trial on the merits. The court found that injunctive relief was necessary to protect the plaintiff class from irreparable injury. The court also concluded that plaintiffs had established a probability of success on their claim "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 interest of minorities and women for a special political burden." In addition, the district court ruled that plaintiffs were likely to succeed in their preemption challenge to Proposition 209's ban on affirmative action in employment on the ground that the initiative conflicted with Congress's intent "to protect employers' discretion to utilize race- and gender-conscious affirmative action as a method of complying with their obligations under Title VII." The court found that plaintiffs had failed to establish a likelihood of success on their other preemption claims, however. Accordingly, the court issued an order barring the defendants "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."

Standard For Granting A Stay: Argument I

Intervenor Has Not Made a "Strong Showing" That It is Likely to

Succeed in Establishing that the District Court Abused its Discretion

This appeal involves the district court's entry, a preliminary injunction that preserves the status quo pending adjudication of plaintiffs' constitutional and statutory challenges to Proposition 209. Accordingly, intervenor faces a heavy burden in seeking a stay. Because the issue on appeal is not whether the district court's legal rulings were correct but simply whether those rulings constituted an abuse of discretion, intervenor cannot obtain a stay simply by showing that it is likely to succeed on the merits of the underlying litigation... To obtain a stay, intervenor must demonstrate that it is likely to succeed in showing that the district court abused its discretion in finding plaintiffs' claims sufficiently meritorious to warrant maintenance of the status quo. Intervenor must show that the district court did not even "get the law right"-that is, that it did not even apply the correct legal standards. Here the district court plainly "got the law right." It correctly concluded that Hunter v. Erickson and Washington v. Seattle School District No. 1 provided the legal standards that govern this case. The court also correctly applied those precedents. Intervenor has not made a "strong showing" that the district court abused its discretion.

A. Hunter v. Erickson and Washington v. Seattle School District No. 1 Prohibit A State From Singling Out Racial And Gender Issues For Special Treatment In The Political Process And Thereby Imposing Unusual Burdens On The Ability Of Minorities And Women To Overcome The 'Special Condition' Of Prejudice

1. The Fourteenth Amendment prohibits a state from "denying to any person within its jurisdiction the equal protection of the laws." Under the Equal Protection Clause, state action is invalid if on its face it invidiously classified on the basis of race or gender. Even facially race- or gender-neutral state action violates the clause if it arises from an invidiously discriminatory motivation.

But these prohibitions do not exhaust the Fourteenth Amendment's safeguards. The Supreme Court has recognized that the right to 'equal protection under the laws' necessarily requires that minorities and women retain equal access to the ordinary political process to obtain the 'protection' of laws against discrimination and its effects... (fn5 Seattle and Hunter dealt with enactments placing burdens on racial and religious minorities, not women. But the same analysis applies in the gender context. The Supreme Court has made clear that women have the same right of access to 'our democratic processes' as do racial minorities.) A state therefore may not "allocate governmental power nonneutrally, by explicitly using the racial (or gender) nature of a decision to determine the decision-making process." Seattle, 458 U.S. at 470. This is true even if the state formally treats men and women and members of all racial groups identically. The Equal Protection Clause "reaches 'a political structure that treats all individuals as equals,' yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation."

A State enactment that limits the ability of minorities and women to obtain measures responding to prejudice through ordinary political means is thus particularly questionable under the Equal Protection Clause. While a state is free under the Fourteenth Amendment to decline to pass beneficial legislation such as affirmative action-and a state is free to repeal such programs after it has enacted them-it may not remove those questions from the normal political process and thereby place a special burden on people seeking to overcome discrimination. As the Court has explained, "when the State's allocation of power places unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the 'special condition' of prejudice, the governmental action seriously 'curtails the operation of those political processes ordinarily to be relied upon to protect minorities.' Seattle. Such state action 'inevitably raises dangers of impermissible motivation.' Like a facial racial classification, it is 'inherently suspect.'"

2. The Supreme Court has applied these principles in two cases that apply directly here. In Hunter v. Erickson, the Court invalidated Section 137, an amendment to the Akron, Ohio, city charter. Section 137 provided that any ordinance regulating housing transactions 'on the basis of race, color, religion, national origin or ancestry' would be invalid unless approved by a majority in a citywide referendum. In striking down Section 137, the Court noted that the amendment did more than simply repeal the city's existing fair housing ordinance; it "also required the approval of the electors before any future ordinance could take effect." Section 137 thus singled out proposed antidiscrimination measures for uniquely onerous treatment in the political process. While "those who sought, or would benefit from, most ordinances regulating the real property market remained subject to the general rule" requiring only a vote of the city council, those who sought antidiscrimination laws "must run the gauntlet."

The Hunter Court considered it of no moment that the charter amendment "drew no distinctions among racial and religious groups" subjected "Negroes and whites, Jews and Catholics...to the same requirements if there is housing discrimination against them which they wish to end." For Section 137 "nevertheless disadvantaged those who would benefit from laws barring racial, religious, or ancestral discriminations as against those who would bar other discriminations or who would otherwise regulate the real estate market in their favor." And "although the law on its fact treated Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact (fell) on the minority," for non-minorities were unlikely to need legislative protection against discrimination. The Court therefore concluded that "(Section) 137 placed special burdens on racial minorities within the governmental process. This is no more permissible than denying them the vote, on an equal basis with others." While the city was under no constitutional obligation to enact an antidiscrimination ordinance, it could not place unusual obstacles in the path of people lobbying for such an enactment.

Hunter thus established that "the equal protection of the laws" requires state governments to leave their ordinary lawmaking processes open on an equal basis to those who seek the "protection" of laws preventing discrimination against them. In Seattle, the Court made clear that the ordinary political process must similarly remain open to those who seek the "protection" of affirmative state action designed to overcome the effects of discrimination-even if that action is itself race-conscious. Seattle involved Initiative 350, a Washington state measure that barred school districts from voluntarily enacting mandatory busing programs to overcome de facto school desegregation. In evaluating the constitutionality of Initiative 350, the Court read its decision in Hunter as establishing "a simple but central principle." Seattle:

(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 a different analysis is required, by explicitly using the racial nature of a decision to determine the decision-making process.

Applying that principle, the Court held Initiative 350 invalid, because "it uses the racial nature of an issue to define the governmental decision-making structure, and thus imposes substantial and unique burdens on racial minorities."

The Court engaged in a two-step analysis. First, the Court concluded that Initiative 350 singled out racial issues for special treatment. The initiative's text "nowhere mentioned 'race' or 'integration'." It simply enacted a general ban on mandatory busing in public schools. But because Initiative 350 contained numerous exceptions, the Court concluded that it effectively permitted busing for any purpose other than racial integration. In practice, it would only affect busing for racial purposes. And while not all African-Americans opposed the initiative-and not all whites supported it-the Court concluded that integration "inures primarily to the benefit of the minority, and is designed for that purpose."

Second, the Court held that the practical effect of Initiative 350 is to work a reallocation of power of the kind considered in Hunter:

The initiative removes the authority to address a racial problem-and only

a racial problem-from the existing decision-making body, in such a way as to burden minority interests. Those favoring the elimination of de facto school segregation now must seek relief from the state legislature, or from the state-wide electorate. Yet authority over all other student assignment decisions, as well as over most other areas of educational policy, remains vested in the local school board.

Because the Constitution does not mandate a remedy for de facto school segregation, the Court stressed that Washington was free to repeal any busing programs the state itself had enacted to address that problem...(T)he state may not "burden all future attempts to integrate Washington schools in districts throughout the State, by lodging decision-making authority over the question at a new and remote level of government." Seattle.

3. Hunter and Seattle establish a basic rule of equal protection. States are free to repeal measures they adopt to overcome discrimination-including affirmative action-so long as those measures are not themselves required by federal law. But states may not go further and single out racial and gender issues for unique treatment in the political process, where that treatment effectively places a special burden on minorities and women by requiring them to repair to a new and more remote level of government before obtaining "legislation specifically designed to overcome the 'special condition' of pre-judice." In such a case, the majority has not merely won a political battle; it has altered the rules for all future political battles and thereby impermissibly entrenched its power. It has denied "the equal protection of the laws" by limiting the opportunity for minorities and women to seek the "protection" of meaningful responses to discrimination.

B. The District Court Did Not Abuse Its Discretion In Finding Hunter And Seattle Controlling Here

In ruling that the plaintiffs had established a likelihood of success on the constitutional issue, the district court properly recognized that "the Seattle opinion sets out the framework for analysis." (T)hat recognition alone would be sufficient to uphold the preliminary injunction. It is certainly sufficient to warrant denial of a stay. Intervenor has not demonstrated a likelihood of success in showing that the district court abused its discretion in applying Hunter and Seattle. Under a straightforward application of those precedents, Proposition 209 is unconstitutional because it singles out racial and gender issues for unique treatment in the political process and thereby burdens the enactment of legislation designed to overcome prejudice.

1. As a formal matter, Proposition 209 appears simply to require race- and gender-neutrality in government programs. But the district court properly "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. While Proposition 209, like the measures invalidated in Seattle and Hunter, "on its face treats Negro and white, (male and female) in an identical manner, the reality is that the law's impact falls on... minorit(ies)" and women. Hunter. Despite its general language, the only meaningful impact of Proposition 209 will fall on narrowly tailored affirmative action programs that promote the inclusion of qualified minorities and women. As the district court found, "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 state could not identify "a single existing program, other than race- and gender-conscious affirmative action programs, that would be affected by Proposition 209." But "all parties concede" that it "will prohibit race- and gender-conscious affirmative action efforts."

Proposition 209 is thus precisely targeted at "legislation specifically designed to overcome the 'special condition' of prejudice." Seattle. Even before Proposition 209, both race- and gender-conscious state affirmative action programs were required to satisfy rigorous constitutional scrutiny. Such programs are generally lawful only where they respond to historic or present exclusion. See, for example., City of Richmond v. Croson. In Adarand Constructors v. Pena, the Court emphasized that race-based action would survive strict scrutiny if it was narrowly tailored to eliminate the effects of discrimination. The Court reasoned that "(t)he unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country is an unfortunate reality, and government is not disqualified from acting in response to it." Adarand. (fn6. In addition to the interest in addressing past discrimination, states also have a compelling interest in achieving diversity in certain circumstances. See Bakke).

Affirmative action programs that satisfy these rigorous standards are an important means of eradicating discrimination and its effects. Thus, while not all minorities and women favor affirmative action, it "inures primarily to the (Ir.) benefit" and "is designed for that purpose." Seattle. Because the only practical effect of Proposition 209 falls on affirmative action programs that are justified by a compelling predicate, the initiative eliminates an important response to "the 'special condition' of prejudice." Seattle.

2. Although affirmative action is an important means of overcoming discrimination, states are generally free to decide whether or not to adopt affirmative action programs-just as they are free to decide whether or not to adopt antidiscrimination laws or race-conscious busing plans. States are also generally free to repeal affirmative action programs they have enacted. By enacting Proposition 209, however, California has done more than simply repeal its existing programs. Not only does Proposition 209 single out programs designed to overcome prejudice, it also effectively limits the access of minorities and women-the primary beneficiaries of affirmative action-to the levers of government. It does so by "lodging decision-making authority over (affirmative action programs) at a new and remote level of government." Seattle.

Prior to the passage of Proposition 209, minorities and women who sought narrowly tailored race- or gender-conscious relief to overcome the effects of discrimination were free to lobby their city council or school board for that relief. Under Proposition 209, that has all changed. Now "women and minorities who wish to petition their government for race- or gender-conscious remedial programs face a considerably more daunting burden." Instead of obtaining relief through the political processes of their local government or school district, or even the state legislature, women and minorities seeking lawful and constitutional affirmative action programs must undertake the extraordinarily difficult step of amending the state constitution. In contrast, persons seeking other kinds of special consideration can simply do so through the normal administrative, legislative, and judicial processes. Many of the forms of preferential treatment Proposition 209 does not meet-such as preferences based on veteran's status or residency in employment and alumni or athletic preferences in state universities-are not designed to respond to instances of discrimination. Thus, the initiative imposes significant barriers to the enactment of important responses to discrimination, while leaving other preference schemes wholly untouched. In this respect, Proposition 209 cannot be distinguished from the enactment rejected in Seattle. Like Initiative 350, Proposition 209 effectively distorts the political process for minorities and women only.

(fn7. Intervenor contends that the district court's analysis would invalidate state Equal Rights Amendments or any other state-law requirement subjecting gender classifications to strict scrutiny. For the same reasons explained in the text, that is incorrect. Proposition 209 is infirm because it places unusual burdens on women and minorities in obtaining "legislation specifically designed to overcome the 'special condition' of prejudice." A requirement of strict scrutiny for gender classifications does not suffer from that infirmity. Not only would such a requirement afford women greater protection, but strict scrutiny analysis also expressly permits the use of a suspect classification where necessary to overcome discrimination or serve some other compelling interest. Nor would the district court's analysis invalidate (the race-norming prohibition in the Civil Rights Act of 1991). That statute prohibits the race- or gender-based alteration of valid and job-related test scores but does not prohibit affirmative action in employment generally; it leaves intact, for example, the practice of "banding" closely related scores. It targets only a particular means of implementing affirmative action that may be regarded as too blunt an instrument, and too often unnecessary, ever to be narrowly tailored. It is thus a proper exercise of congressional authority under Section 5 of the Fourteenth Amendment.)

Intervenor makes several arguments against the application of Hunter and Seattle. None demonstrates that the district court abused its discretion in choosing to apply those cases here. First, intervenor argues that Proposition 209 simply mandates race- and gender-neutrality and therefore only eliminates programs that are already constitutionally suspect. That argument is foreclosed by Seattle. Like Proposition 209, Washington's Initiative 350 simply mandated formal race-neutrality: it generally prohibited race-conscious busing programs designed to overcome de facto school segregation. In his dissent in Seattle, Justice Powell made this parallel explicit. He observed that "when a State or school board assigns students on the basis of their race, it acts on the basis of a racial classification, and we have consistently held that (a) racial classification, regardless of purported motivation, is presumptively invalid and can be upheld only upon an extraordinary justification." Seattle. To the Court, Initiative 350 was not saved by the fact that it targeted only race-conscious programs. Rather, the crucial points were that busing "at bottom inures primarily to the benefit of the minority, and is designed for that purpose," Seattle, and that the Washington initiative "placed unusual burdens on the ability of racial groups to enact legislation specifically designed to overcome the 'special condition' of prejudice." As we have explained, those points apply with equal force here. Because Proposition 209 singles out legislation "designed to overcome the 'special condition' of prejudice" for unique and more burdensome treatment in the political process, Seattle dictates that it be treated as equivalent to a racial or gender classification.

Intervenor contends that the Seattle Court expressly rejected any parallel between busing and affirmative action by stating, in a footnote, that "the horribles paraded by the dissent-which have nothing to do with the ability of minorities to participate in the process of self-government-are entirely unrelated to this case." But the "horribles" referred to by the Court did not relate to the mere application of the Seattle principle to affirmative action; by its terms, the Seattle decision plainly covers affirmative action programs "designed to overcome the 'special condition' of prejudice." Rather, the Court was evidently referring to the dissent's suggestion that the Seattle principle might extend to the lowest levels of an administrative hierarchy. For example, the dissent read the Court's opinion as preventing a state law school's dean from overruling a school admissions committee's decision to employ affirmative action. The court correctly concluded that such a hypothetical case has "nothing to do with the ability of minorities to participate in the process of self-government." But Proposition 209's foreclosure of the ability to obtain affirmative action through state and local legislative processes-like Initiative 350's foreclosure of the ability to obtain busing through local school boards-has everything to do with access to self-government...

ARGUMENT II

BOTH THE BALANCE OF HARDSHIPS AND THE PUBLIC

INTEREST TIP SHARPLY AGAINST UPSETTING THE

STATUS QUO BY GRANTING A STAY

As we have explained, the narrow order issued by the district court merely serves the traditional purpose of a preliminary injunction-"to preserve the status quo ante litem pending a determination of the action on the merits." In this context, entry of a stay would contravene the basic purpose of the Court's stay power, for it would disrupt the status quo. Intervenor has not demonstrated that the equities justify such an extraordinary step. Indeed, the district court found that the balance of hardships "tips decidedly in plaintiffs' favor."

Should the preliminary injunction be stayed, plaintiffs and the public interest will suffer significant harm. Once the district court's order is lifted, Proposition 209 will be binding state law; any affirmative action program that violates Proposition 209 may be immediately terminated. "(T)he hardships that would be caused to women and minorities" by Proposition 209's elimination of affirmative action programs were detailed by the district court, and these hardships "must be weighed" in determining whether to grant the stay. Moreover, implementation of Proposition 209 would restrict access to the political process-"an immediate and ongoing injury that is not amenable to monetary remedy." In this context, plaintiffs' substantial claim of the violation of constitutional rights itself may constitute irreparable harm. In light of the significant harm that the plaintiffs and the public interest will suffer in the absence of preliminary relief, and the relatively minor burden on defendants imposed by the court's narrowly drawn order, the district court properly "perceived a need to preserve the status quo" pending resolution of plaintiffs' claims. This Court should not stay the order and disrupt the status quo.

CONCLUSION: The motion for stay should be denied.

Signed, ISABELLE KATZ PINZLER

Acting Assistant Attorney General

Department of Justice