U.S. High Court Justice to Weigh Bid to Block Prop. 209 Enforcement

WASHINGTON — Supreme Court Justice Sandra Day O’Connor was urged Friday to halt enforcement of Proposition 209, the California initiative that bars affirmative action programs in public employment, education and contracting.

In its petition to O’Connor, a civil rights coalition said the affirmative action ban, which took effect Thursday, “strips all local and state governmental entities of their pre-existing authority to redress discrimination through even indisputably constitutionally permissible race- or sex-conscious affirmative measures.”

The petition went to O’Connor because she is the justice designated to consider emergency appeals from the 9th Circuit, which includes California. She is considered a potential swing vote on the sensitive issue of affirmative action.

O’Connor can act on her own or refer the matter to the full court, which has recessed for the summer. Based on earlier cases, she is not expected to act before California Atty. Gen. Dan Lungren files a petition on behalf of Gov. Pete Wilson opposing a stay. Lungren spokeswoman Sara Brown said the attorney general will file one Tuesday.

In a separate petition filed Friday, San Francisco joined the Coalition for Economic Equity in asking O’Connor to stay Tuesday’s ruling by the U.S. 9th Circuit Court of Appeals that allowed the affirmative action ban to take effect.

If the emergency requests are rejected, the Supreme Court still will have before it constitutional challenges to Proposition 209 from the civil rights coalition and the city and county of San Francisco. But the Supreme Court is not expected to consider those challenges until its next term, which begins in October.

To persuade a justice to grant an emergency stay, Proposition 209’s opponents must meet four tests, based on Supreme Court case law: that there is a “reasonable probability” that at least four of the nine justices will agree to review the merits of the case; that there is a “fair prospect” that a majority will conclude that the 9th Circuit ruling was wrong; that denying the stay will result in “irreparable harm”; and, in a close case, that hardships would result from denying the stay.

If O’Connor denies the stay request, Proposition 209 opponents can turn to another justice on the court. But it is customary for subsequent appeals to be referred to the full court for action on the emergency request, with the assistance of telephones and faxes.

The stay request to O’Connor marks the latest turn in the legal battle over Proposition 209, which was approved by 54% of the state’s voters in November. A federal judge soon blocked it, but that decision was overturned by a three-judge panel of the 9th Circuit in April.

A request for a ruling by the full 9th Circuit was denied a week ago, and in a written opinion Tuesday, the appeals court said “it is clear that a state suffers irreparable injury whenever an enactment of its people or their representatives is enjoined.”

In their petition to O’Connor, the Proposition 209 opponents contend that they, not the state, would be the victims of “irreparable harm” if the stay is denied.

“If the court of appeals’ judgment is not stayed, Proposition 209 will effect a sweeping reallocation of authority and enormous institutional disruption,” the Coalition for Economic Equity said.

If the 9th Circuit ruling is not stayed, San Francisco and other public entities in the state “will be placed in a legal Catch-22,” San Francisco’s petition said.

They will have to choose between abandoning constitutionally permissible affirmative action programs--exposing themselves to lawsuits by those who see the programs as necessary remedies for past discrimination--or continuing to implement the programs and risk suits by those who consider them invalid under Proposition 209.

O’Connor has joined the four other members of the Supreme Court’s conservative majority--Chief Justice William H. Rehnquist and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas--in prohibiting the use of race as a “predominant factor” in government decisions, whether in handing out contracts, awarding college scholarships or drawing electoral district lines.

But O’Connor has stopped short of closing the door to affirmative action. In 1987, she cast a decisive vote in favor of a Santa Clara County affirmative action order that promoted the first woman to the top position in the road maintenance unit.