Affirmative Action in California -  Not Yet on the Death Bed

A three judge panel of the 9^th Circuit U.S. Court of Appeals removed the preliminary injunction delaying  the imposition of Proposition 209 imposed by U.S. District Court Judge Thelton Henderson.   In theory the removal of the injunction means schools and other state supported institutions will be under obligation to remove any programs that are designed to ensure greater participation of females or people of color within three weeks.  However, the reality is somewhat different.

Is the decision a setback for those seeking to promote affirmative action?  Yes. It virtually removes Judge Henderson from the case and he appeared to be sensitive to the arguments made by those opposing the enforcement of the proposition.  It also puts the burden on those supporting affirmative action to find a way to halt state supported institutions from following Proposition 209. 

Is there any way to stop the decision from being implemented?  Yes.  There may be an appeal to the Circuit Court to hold off implementation of the Proposition until all nine judges can meet together to review the decision of the three judge panel.  There is also likely to be an appeal to the U.S. Supreme Court. 

If the attempts to block Proposition 209 fail when will it become effective?  In theory by the end of April, but in reality state supported institutions need to determine what they need to do to comply to the proposition.  They then need to establish and implement the procedures and regulations necessary to carry it out.

Prop 187 Update

The only provisions of Proposition that have not been specifically prevented from being enforced make it a felony punishable by 5 years in state prison or a fine of  $75,000 to use, make or distribute false documents to conceal resident status.

Provisions that require public agencies to report names of people they reasonably suspect to be not legally in the United States to state agencies and the INS were barred from enforcement by U.S. District Court Judge Mariana Pfaelzer.  She found that only the federal government can set requirements for the reporting of people who are not legally in the United States.  She also prevented public agencies from denying services to anyone "suspected" of not legally being in the United States.

 Provisions requiring primary and secondary schools to verify the legal status of students and their parents or guardians, and prohibiting education to students not in the United States legally were also barred from enforcement by Judge Pfaelzer.

A three judge panel of the U.S. Circuit Court of Appeal found that Judge Pfaelzer has not abused her discretion in hearing the case and barring implementation of the provisions.

The federal welfare reform act incorporated some of the provisions of Proposition 187 by allowing the state to deny health care to people who are not documented.  Judge Pfaelzer stated that her decisions did not prevent the state from carrying out the provisions of the welfare reform act.  However lawsuits against the implementation of the welfare reform act are still preventing the state from denying health care to people without documentation. 

For further information contact The Mexican American Legal Defense and Education Fund  (213) 629-2512 or (415) 543-5598.