Clark v. Flory Brief for Petitioners

    IN THE
SUPREMECOURTOFTHE UNITED STATES

OCTOBER TERM, 1990

Bill Clinton , G overnor  of

A r k a n sa s , et a l . , ........................................................  Petitioners

vs.
M- C. J effers, et a l . , ................................................Respondents

JURISDICTIONAL STATEMENT

J ohn Steven Cl a r k*
T im  H umphries 
Fran k  J. W ills

A rk a n sas  A ttorn ey  G eneral 
200 T o w er  Building  
323 Center Street 
Little R o c k , A rk a n sas  72201 
(501) 682-2007 
* Counsel of Record

ARKANSAS LEGISLATIVE DIGEST. INC.



1

QUESTIONS PRESENTED

This appeal presents questions concerning a district 
court's power to require preciearance under Section 3(c) of the 
Voting Rights Act, 42 U.S.C. §1973a(c), when the electoral 
system under attack specifically was found not to have 
violated the Constitution, and its power to retain jurisdiction 
over future apportionment plans to be adopted by the State, 
specifically:

I.

WHETHER THE MAJORITY ERRED BY IMPOSING 
PRECLEARANCE UNDER 42 U.S.C. §1973a(c) UPON 
FUTURE CHANGES IN ARKANSAS’ GENERAL ELEC­
TION MAJORITY VOTE LAWS AFTER IT SPECIFICAL­
LY DETERMINED THAT THE ONLY VOTING PRAC­
TICE CHALLENGED BY RESPONDENTS, THE 1981 
STATE LEGISLATIVE APPORTIONMENT PLAN, DID 
NOT VIOLATE THE CONSTITUTION.

II.

WHETHER THE MAJORITY ERRED WHEN "AS 
A MATTER OF ITS INHERENT EQUITABLE POWER,” 
IT RETAINED JURISDICTION OVER THE STATE 
LEGISLATIVE APPORTIONMENT PLAN THAT WILL 
BE ADOPTED IN 1991 FOR THE PURPOSE OF ALLOW­
ING RESPONDENTS TO CHALLENGE IT AFTER THE 
MAJORITY SPECIFICALLY DETERMINED THAT THE 
1981 PLAN DID NOT VIOLATE THE CONSTITUTION.



11

The Petitioners, who were defendants in the action 
below, are Bill Clinton, the Governor of Arkansas, W. J. 
McCuen, the Arkansas Secretary of State, and Steve Clark, the 
Arkansas Attorney General, all in their official capacities and 
as members of the Arkansas Board of Apportionment. The 
Respondents, who were plaintiffs in the action below, are 
M. C. Jeffers, A1 Porter, Evangeline Brown, Clyde Collins, 
O. C. Duffey, Earl Foster, The Reverend Ellihue Gaylord, 
Shirley M. Harvell, Linda Shelby, J. C. Jeffries, Lavester 
McDonald, Joseph Perry, Clinton Richardson, T. E. Patterson, 
Ernest Simpson, Bryan Smith, and Charlie Statewright.

LIST OF PARTIES



I l l

Page
TABLE OF CONTENTS

QUESTIONS PRESENTED.................................................j

LIST OF PARTIES..............................................................  ii

TABLE OF CONTENTS .................................................... iii

TABLE OF AUTHORITIES......... .....................................iv

OPINIONS BELOW..........................................................  1

JURISDICTION..................................................................  I

STATUTES AND RULES INVOLVED..........................  2

STATEMENT OF THE C A SE ............................................4

THE QUESTIONS PRESENTED ARE 
SUBSTANTIAL..............................................................  6

L The Majority Erred By Imposing Preclearance 
Under 42 U.S.C. §1973a(c) Upon Future Changes 
In Arkansas’ General Election Majority Vote Laws 
After It Specifically Determined That The Only 
Voting Practice Challenged By Respondents, The 
1981 State Legislative Apportionment Plan, Did 
Not Violate The Constitution....................................  9

II. The Majority Erred When, "As A Matter Of Its 
Inherent Equitable Power,” It Retained Jurisdic­
tion Over The State Legislative Apportionment 
Plan That Will Be Adopted In 1991 For The 
Purpose Of Allowing The Respondents To Chal­
lenge It After The Majority Specifically Deter­
mined That The 1981 Plan Did Not Violate The 
Constitution ................................................................  12

CONCLUSION..................................................................  14

APPENDIX



I
IV

t a b l e  o f  a u t h o r it ie s

CASES: Pas e

Brown v. Board of School Commissioners of Mobile
Alabama, 542 F.Supp. 1078 (S.D. AI. 1982) . . . . .  p

Ferguson v. Brick, 279 Ark. 288,
652 S.W.2d 1 (1983) ___ ’ ....................

Gonzales v. United States, 589 F.2d 465 
(9th Cir. 1 9 7 9 ) .................................

International Harvester Credit Corporation v East
Coast Truck, 547 F.2d 888 (5th Cir. 19 7 7 )........ W, u

Jeffers v. Clinton, 730 F.Supp. 196 (E.D. Ark. 1989)........ 6

Jenkins v. City of Pensacola, 638 F 2d 1249 
(5th Cir. 1 9 8 1 ) .....................................

Jenkins v. State of Missouri, 807 F 2d 657
(8th Cir. 1 9 8 6 ) ...........................................  g u

McMillan v. Escambia County, Florida, 638 F 2d 1239 
(5th Cir. 1 9 8 1 ) ............ ...........................

Mears v. City of Little Rock, 256 Ark 359
508 S.W.2d 750 (1974) .............n

Webber v. White, 422 F.Supp. 416 (N.D. Tex. 1976) . . .  .7

Zimmer v. McKeitan, 485 F.2d 1297 (5th Cir. 1973) 
aff’d sub nom. East Carol Parish School Board ’ 

^ s h a l l ,  424 U.S. 636 (1976)........................... n

i  ''" * * ?-*  v



TABLE OF AUTHORITIES
Page

STATUTES AND RULES:

28 U.S.C. §1253 ......................................   2

42 U.S.C. §1973a(c)......................................................passim

42 U.S.C. §1973 (b ) .................................................................4

FRCP 1 5 a ..............................................................................10

FRCP 1 5 b .................................................................... 2, 7, 10

FRCP 1 5 c ........................................................................ 4, 10

ACA §7-5-106 (1987) ........................................................ 11

ACA §14-42-206 (Supp. 1 9 8 9 ) ...........................................11

1975 Acts of Arkansas No. 2 6 9 ...........................................11

1973 Acts of Arkansas No. 16 8 ...........................................11



N o .__________

IN THE
SUPREME COURT OFTHE UNITED STATES

OCTOBER TERM, 1990

Bill Clinton , G overnor  of 
A r k a n sa s , et a l . , ......................

vs.

M. C. J effers, et a l . , ...............

P etitioners

Respondents

JURISDICTIONAL STATEMENT

Governor Bill Clinton of Arkansas, together with the 
other two members of the Arkansas Board of Apportionment 
respectfully submit that this jurisdictional statement presents 
questions so substantial as to require plenary consideration
with briefs on the merits and oral argument, for their 
resolution.

OPINIONS BELOW

The opinion and dissent of the district court (J.S. Appx. 
1) are as yet unreported.

JURISDICTION

] he district court entered its final order with respect to

? ction 3(c> of the Votin* Ri«hts A«.42 U.S.C. §1973a(c),on May 16,1990. J.S. Appx. 1. Petitioners
ded their notice of appeal on June 13, 1990. J.S. Appx 98

Petitioner’s time to file this Jurisdictional Statement was
extended up to and including August 31, 1990 by Justice



1

Blackmun. J.S. Apx. 100. This Court has jurisdiction under 28 
U.S.C. §1253.

STATUTE AND RULE INVOLVED 

42 U.S.C. §1973a(c) provides:

"If in any proceeding instituted by the Attorney General 
or an aggrieved person under any statute to enforce the 
voting guarantees of the fourteenth or fifteenth amend­
ment in any State or political subdivision the court finds 
that violations of the fourteenth or fifteenth amendment 
justifying equitable relief have occurred within the 
territory of such State or political subdivision, the court, 
in addition to such relief as it may grant, shall retain 
jurisdiction for such period as it may deem appropriate 
and during such period no voting qualification or 
prerequisite to voting or standard, practice or procedure 
with respect to voting different from that enforced or in 
effect at the time the proceeding was commenced shall be 
enforced unless and until the court finds that such 
qualification, prerequisite, standard, practice or pro­
cedure does not have the purpose and will not have the 
effect of denying or abridging the right to vote on 
account of race or color or in contravention of the voting 
guarantees set forth in Section 1973b(f)(2) of this 
Title___ "

F.R.C.P. 15(b) provides:

Amendments to conform to the evidence. When issues 
not raised by the pleadings are tried by express or 
implied consent of the parties, they shall be treated in all 
respects as if they had been raised in the pleadings. Such 
amendment of the pleadings as may be necessary to cause



icsc  issues11icin rouinlorni so the evidence .111d to raise 11 
may he made upon mm inn ol any pa rry at an v ; 1 me, even 
alter judgment; hut failure so to amend does not affect 
the result of the trial of these issues. If evidence is 
objected to at the trial on the ground that it is not within 
the issues made by the pleadings, the court may allow the 
pleadings to be amended and shall do so freely when the 
presentation of the merits of the action will be subserved 
thereby and the objecting party faiis to satisfy the court 
that the admission of such evidence would prejudice the 
party in maintaining the party s action or defense upon 
tne merits. I he court may grant a continuance to enable 
the objecting party to meet such evidence.



STATEMENT OF THF CASE

This is the second appeal arising out of the most 
ambitious Section 2 redistricting action ever filed. The first 
appeal arose from the district court's liability finding and the 
remedy it imposed under Section 2 of the Voting Rights Act, 
42 U.S.C. §1973(b), which has been assigned docket number 
89-2008 in this Court. This second appeal challenges the 
district court’s subsequent decision to place Arkansas under 
"partial preclearance” pursuant to 42 U.S.C. §1973a(c) for 
alleged constitutional violations in voting laws other than 
those in issue during the trial below. In addition, Petitioners 
appeal the majority’s decision to retain jurisdiction over the 
legislative reapportionment plan to be adopted in 1991 "for 
the purpose of entertaining any challenge by (Respondents)” 
when the court specifically found that the 1981 plan did not 
violate the Constitution.

A majority of the district court panel partially granted 
Respondents’ request for preclearance under Section 3(c) of 
the Voting Rights Act based upon four statutes that imposed 
majority vote requirements in local elections that were 
adopted between 1973 and 1989- Although the only voting 
practice or procedure attacked by respondents up to and 
during trial was Arkansas’ 1981 legislative apportionment 
plan, the majority, after trial and upon its own motion, 
amended the pleadings under F.R.C.P. 15(c) to permit the 
imposition of Section 3(c) preclearance for future changes in 
majority vote requirements for general elections. However, it 
did not void those local election majority vote statutes that it 
found violated the Constitution nor could it find other 
"constitutional violations” upon which to impose pre­
clearance. The entire panel of the district court specifically



5

found that the 1981 legislative apportionment plan did not 
violate the Constitution.

The majority also felt compelled to "impose one further 
item of relief in the nature of preclearance, not as a matter of 
statute, but as a matter of inherent equitable power." J.S. 
Appx. 40. It directed that no plan of apportionment adopted 
by Arkansas after the 1990 Census be put into effect until sixty 
days after its final adoption "for the purpose of entertaining 
any challenge by the plaintiffs in this case to such plan.” 
J.S. Appx. 2. The majority gave no basis, other than its 
"inherent equitable power,” for its action notwithstanding 
that it had been unable to discern any constitutional infirmity 
in the 1981 apportionment plan.



6

THE QUESTIONS PRESENTED ARE SUBSTANTIAL

Introduction. In the words of the dissent to an earlier 
ruling in this case, "The courts have run amok.” Jeffers v. 
Clinton, 730 F.Supp. 196,278 (E.D. Ark. 1989). To support its 
desire to impose preclearance under §3(c) of the Voting 
Rights Act, the majority was forced to divine constitutional 
violations from four statutes that imposed majority vote 
requirements in municipal elections, and, sua sponte, to 
amend the pleadings to supply the request for relief it 
imposed. See J.S. Appx. 16. Not content to require federal 
supervision over future changes in Arkansas’ general election 
majority vote laws (which, at least, the majority determined 
were unconstitutional,'J.S. Appx. 24), the majority invoked 
its "inherent equitable power” to enjoin the 1991 apportion­
ment plan from becoming effective for 60 days to give 
Respondents2 the opportunity to challenge it before the same 
district court. J.S. Appx. 40-41. This, notwithstanding the 
district courts unanimous finding that Arkansas’ 1981 
legislative apportionment plan was not unconstitutional. J.S. 
Appx. 16, 44.

These unprecedented actions warrant plenary review for 
several reasons. First, the majority misapplied Section 3(c) 
when it imposed preclearance after specifically finding that 
the voting standard at issue, Arkansas’ 1981 legislative 
apportionment plan, did not contravene the voting guar­
antees of either the Fourteenth or Fifteenth Amendments. A

'Notwithstanding the majority's determination that the majority 
vote statutes were passed for the purpose of suppressing black political
success, J.S. Appx. 24, it allowed them to remain in effect. J.S. Appx. 24, 
Note 7,

Respondents motion for class certification was denied. Why they 
are favored by the majority over other Arkansas citizens to challenge the 
1991 plan is never explained.



I

7

°  W1 -nw indicates mat a court
must find a constitutional violation in the electoral mech­
anism that was the subject of the "proceeding instituted . . .  to 
enforce the voting guarantees of the Fourteenth or Fifteenth 
Amendment before it has the option of imposing pre­
clearance.3 By refusing to give Section 3(c) a straightforward 
reading, the majority has improperly transformed Section 
3(c) into a cause of action itself for preclearance, rather than 
recognizing that it is part of a remedial scheme to enforce the 
voting guarantees of the fourteenth and fifteenth amend­
ments. See Webber v. White, 422 F.Supp 416 423 (N D Tex 
1976).

Second, the majority's misapplication of Section 3(c), 
when coupled with its erroneous interpretation of F.R.C.P. 
15(b), operated to deny Petitioners due process of law. As 
observed by the dissent, the issue whether preclearance could 
be based upon four majority-vote statutes (only one of which 
was in effect when this action was filed) did not arise until 
after trial was completed. J.S. Appx. 58. Petitioners 
objected to the attempted introduction of evidence concerning 
the majority-vote statutes on relevance grounds and the court 
never inquired whether Respondents desired to amend their 
pleadings. By sua sponte amending Respondents’ pleadings 
seven months after trial to include the claim that the majority- 
vote statutes should be the basis for imposing preclearance, 
the majority denied Petitioners the opportunity to request a 
continuance to enable them to meet Respondents' "evidence”

JThe majority's reading of Section 3(c), r c e  J.S. Appx. 17, 

implicitly inserts the word "other" between the words Jthat" and 
violations so that Section 3(c) is read to say "If in any proceeding . . .  to 

enforce the voting guarantees of the fourteenth or fifteenth amendment 
. . . the court finds that (other) violations of the fourteenth or fifteenth 
amendment justifying equitable relief have occurred. . . .” This apparent 
instance of judicial legislating should be remedied.



8

and deprived Petitioners of their fundamental right to 
procedural due process.

Finally, the majority below abused its discretion when it 
invoked its inherent equitable powers to postpone the 
adoption of Arkansas’ 1991 apportionment plan in order to 
allow Respondents the opportunity to challenge it. The 
challenged 1981 plan was specifically found not to have 
violated either the fourteenth or fifteenth amendments. The 
majority s spontaneous invocation of its inherent equitable 
power, absent any finding that Arkansas’ apportionment plan 
violated the Constitution, ignores the traditional rule that 
federal courts may not invoke their inherent equitable power 
to impose remedies absent a current violation of the 
Constitution. Jenkins v. State of Missouri, 807 F.2d 651, 666 
(8th Cir. 1986).

Plenary review of these important issues is required to 
provide guidance to the lower courts in their imposition of the 
drastic remedy of preclearance under Section 3(c), an area 
heretofore not addressed by this Court. Further, the district 
court s apparent attempt to free the exercise of its inherent 

<• ^  equitable powers from the restraint of remedying constitu­
tional violations and thus to enable it to interfere improperly 
with the State s electoral mechanisms should be quashed by 
this Court. Similar, if not identical problems are likely to arise 
throughout this Nation as its States begin developing and 
implementing new redistricting plans following the 1990 
census. Guidance from this Court is essential.



No. 97-15030, 97-15031 
IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

COALITION FOR ECONOMIC EQUITY et al., 
Plaintiff-Appellee 

v.
PETE WILSON et al.,
Defendant-Appellant

BRIEF OF AMICUS CURIAE, NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. IN SUPPORT OF 
PETITION FOR REHEARING AND SUGGESTION FOR 

REHEARING EN BANC

Elaine R. Jones, Director-Counsel Theodore M. Shaw
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.
Suite 1600 
99 Hudson Street 
New York, N.Y.
(212) 219-1900
Molly Munger 
Darci E. Burrell
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC.
315 W. 9th Street, Suite 208 
Los Angeles, CA 90015
(213) 624-2405

Attorneys for Amicus Curiae



No. 97-15030, 97-15031 
IN THE UNITED STATES COURT OF APPEALS 

FOR THE NINTH CIRCUIT

COALITION FOR ECONOMIC EQUITY et al., 
Plaintiff-Appellee 

v .
PETE WILSON et al.,
De f endant-Appe1lant

BRIEF OF AMICUS CURIAE, NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC. IN SUPPORT OF 
PETITION FOR REHEARING AND SUGGESTION FOR 

REHEARING EN BANC

Elaine R. Jones, Director-Counsel 
Theodore M. Shaw
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC.
Suite 1600 
99 Hudson Street 
New York, N.Y.
(212) 219-1900
Molly Munger 
Darci E. Burrell
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC.
315 W. 9th Street, Suite 208 
Los Angeles, CA 90015 
(213) 624-2405

Attorneys for Amicus Curiae



TABLE OF CONTENTS
I. INTRODUCTION AND INTEREST OF AMICUS CURIAE ............  i

II. AFFIRMATIVE ACTION REMEDIES ARE AN INTEGRAL PART
OF FEDERAL CIVIL RIGHTS ENFORCEMENT ..................  2
A. The Supreme Court Has Consistently

Upheld These Remedies ............................  4

B. The Court Holds That These Remedies Are Necessary to
the Enforcement of the Antidiscrimination Laws . . 7

III. PROPOSITION 209 SEEKS TO BAN THIS FORM OF ENFORCEMENT
IN CALIFORNIA........................................ ...

IV. PROPOSITION 209'S BAN SUBSTANTIALLY OBSTRUCTS
ENFORCEMENT OF THE FEDERAL ANTIDISCRIMINATION LAWS . . .  12
A. Proposition 209 Attempts to Contravene Future

Federal Court Orders ............................  12
B. Proposition 209 Also Bars "Voluntary"

Affirmative Action ..............................  14

1. Federal Law Strongly Encourages
Out-of-Court Remediation of Illegal 
Discrimination ..............................  15

2. The Ninth Circuit Particularly Encourages
Out-of-Court Remediation ....................  16

3. Proposition 209 Obstructs the Federal Civil
Rights Enforcement System ..................  18

V. THE SUPREMACY CLAUSE (PREEMPTION)PROHIBITS
A STATE FROM INTERPOSING THESE KINDS OF OBSTACLES TO 
FEDERAL L A W ............................  2Q

VI. THE PANEL OPINION ON THE PREEMPTION ISSUE 
FAILS TO ADDRESS THIS GOVERNING SUPREME COURT
AND NINTH CIRCUIT AUTHORITY ......................  23
A. The Panel Opinion Omits Any Consideration of

the Supremacy Clause Issue Raised by the Need to 
Enforce the Equal Protection Clause According to 
Federal Standards ................................  24
1. The Supremacy Clause Applies With Special

Force to the Equal Protection Clause............25
2. North Carolina v. Swann Governs This Case . . 27

1



B. The Panel Reached an Erroneous Conclusion with
Respect to Proposition 209's Preemption by Title 
V I I .................................... ..

VII. CONCLUSION ....................................
DECLARATION OF MOLLY MUNGER IN SUPPORT OF NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC.'S BRIEF 
OF AMICUS CURIAE ............

33
29

34

li



TABLE OF AUTHORITIES
Cases: Pages:

Adarand Constructors v. Pena, U.S.
115 S. Ct. 2097, 132 L. Ed. 2d 158 . . .

Albemarle Paper Co. v. Moody, 422 U.S. 405,
95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975) . . . . . 1

Associated General Contractors of California v. City & 
County of San Francisco, 813 F.2d 922 (9th Cir. 1987) . . 17
Bushey v. N.Y. St. Civ. Serv. Comm'n,

733 F.2d 220 (2d Cir. 1984), cert, denied, 469 U.S. 
1177, 105 S. Ct. 803, 83 L. Ed. 2d 795 (1985) . . . . . 15

California Fed. Savings & Loan Ass'n v. Guerra,
479 U.S. 272, 107 S. Ct. 683, 93 L. Ed. 2d 613 
(1987) .................... 30, 31

City of Richmond v. Croson, 488 U.S. 469,
109 S. Ct. 706, 102 L. Ed. 2d 854 (1989) . . . 5, 26

Coalition for Economic Equity, et. al., v. Wilson, 
946 F. Supp. 1480 (N.D. Cal. 1996) .......... . . 29

Coalition for Economic Equity v. Wilson,
1997 U.S. App. LEXIS 6512 .......... passim

Coral Construction Company v. King County,
941 F.2d 910 (9th Cir. 1991), cert, denied, 502 
U.S. 1033, 112 S. Ct. 875, 116 L. Ed. 2d 780 . . . . 17

Crawford v. Los Angeles Bd. of Ed., 458 U.S. 527,
102 S. Ct. 3211, 73 L. Ed. 2d 948 (1982) . . . 13, 28

Davis v. City and County of San Francisco, 
890 F .2d 1438 (9th Cir. 1989) . . . . . . 9

Detroit Police Officers Association v. Young,
608 F.2d 671 (6th Cir. 1979), cert, denied, 452 
U.S. 938, 101 S. Ct. 3079, 69 L. Ed. 2d 951 . . 15

East-Bibb Twiggs Neighborhood Assn v. Macon-Bibb 
Planning & Zoning Comm'n, 674 F. Supp. 1475 (M.D. Ga. 1987) 

aff'd, 888 F.2d 1576 (11th Cir. 1989) . . .
Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 

101 L. Ed. 2d 123 (1988) ........ 22

ill



Florida Lime & Avocado Growers, Inc. v. Paul,
373 U.S. 132, 83 S. Ct. 1210, 10 L. Ed.*2d 248 reh'g 
denied, 374 U.S. 858, 83 S. Ct. 1861, 10 L. Ed. 2d 
1082 (1963) ....................................

Franks v. Bowman Transp. Co., 424 U.S. 747,
96 S. Ct. 1251, 47 L. Ed. 2d 444 (1976) ..............

Free v. Bland, 369 U.S. 663, 82 S. Ct. 1089,
8 L. Ed. 2d 180 (1962) ..............................

Gade v. Natl Solid Wastes Management Ass'n., 505 U.S. 88 
112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992) ........

Griggs v. Duke Power Co., 401 U.S. 424,
91 S. Ct. 849, 28 L. Ed. 2d 158 (1971) ................

Haines v. Davidowitz, 312 U.S. 52, 61 S. Ct. 399,
85 L. Ed. 581 (1941)..............................  21

Higgins v. City of Vallejo, 823 F.2d 351 (9th Cir. 1987), 
cert, denied, 489 U.S. 1051, 109 S. Ct. 1310,
103 L. Ed. 2d 579 (1987) ............................

Hunter v. Ameritech, 779 F. Supp. 419 (N.D. Ill 1991)

20

20

21

23

16
21

Johnson v. Transp. Agency, 480 U.S. 616,
107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987) . . . .

Local 28 v. EEOC, 478 U.S. 421, 106 S. Ct. 3019,
92 L. Ed. 2d 344 (1986) ......................

McKennon v . Nashville Banner Publishing Company,
513 U.S. 352, 115 S. Ct. 879, 130 L. Ed. 2d 852 
(1995) ........................................

Nash v. Florida Industrial Commission, 389 U.S. 235, 
88 S. Ct. 362, 19 L. Ed. 2d 438 (1967) ........

5, 14, 25

4, 6

passim

21
North Carolina State Bd. v. Swann, 402 U.S. 43,

91 S. Ct. 1284, 28 L. Ed. 2d 586 (1971) .......... passim
Officers for Justice v. Civil Service Commission,

979 F.2d 721 (9th Cir. 1992), cert, denied sub nom,
San Francisco Officers Association v. City and 
County of San Francisco, 507 U.S. 1004, 113 S. Ct.
1645, 123 L. Ed. 2d 267 (1993) . ..................  9; 2_7

Phillips v. Martin Marietta Corp., 400 U.S. 542,
91 S. Ct. 496, 27 L. Ed. 2d 613 (1971)................  1

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 .............. 21
IV



27
Swann v. Charlotte-Mecklenberg Board of Education,

402 U.S. 1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971)
Swann v. Charlotte Mecklenburg Bd. of Educ.,

312 F. Supp. 503 (W.D.N.C. 1970) ........ 1, 14, 27
United States v. Paradise, 480 U.S. 149,

107 S. Ct. 1053, 94 L. Ed. 2d 203 (1987) . . . passim

Wygant v. Jackson Bd. of Educ.,
476, U.S. 267, 106 S. Ct. 1842, 90 L. Ed. 2d 260 
rehg denied, 478 U.S. 1014, 106 S. Ct. 3320, 92 L. 
Ed. 2d 728 (1986) ........ 5, 8, 16

Xerox Corp. v. County of Harris, 459 U.S. 145,
103 S. Ct. 523, 74 L. Ed. 2d 323 (1982) . . .

Statutes: Pages:

Fed. R. App. P. 35(a) ................
20 U.S.C. § 1681(a) ..............
42 U.S.C. § 200O d ........
42 U.S.C. § 2000e-2 . . . .
Constitutional Provisions: Pages:

U.S. CONST, art. VI, cl. 2 . . . .
U.S. CONST, amend. XIV § 1 . . . .

v



INTRODUCTION AND INTEREST OF AMICUS CPRTAF
The NAACP Legal Defense and Educational Fund, Inc. is a non- 

Pr°fit corporation established under the laws of the State of New 
York that has prosecuted numerous civil rights cases on behalf of 
African Americans and others seeking vindication of their civil 
rights. For many years attorneys of the Legal Defense Fund (LDF) 
have represented parties in litigation involving a variety of 
discrimination issues regarding employment. See, e .g. . McKennon 
v. Nashville Banner Publishing Company. 513 U.S. 352, 115 S. Ct. 
879, 130 L. Ed. 2d 852 (1995); Griggs v. Duke Power Co.. 401 U.S. 
424, 91 S. Ct. 849, 28 L. Ed. 2d 158 (1971); Albemarle Paper Co. 
v. Moody, 422 U.S. 405, 95 S. Ct. 2362, 45 L. Ed. 2d 280 (1975)
Phillips v. Martin Marietta Corp.. 400 U.S. 542, 91 S. Ct. 496,
27 L. Ed. 2d 613 (1971). Thus, the LDF has a particular interest
in the enforcement of federal civil rights laws nationwide.

The long involvement of LDF in efforts to enforce the civil 
rights laws gives it a special interest in one of the major 
issues raised by this appeal: Whether Proposition 209 should be 
enjoined because it impermissibly interferes with the federal 
system of civil rights law enforcement.

LDF respectfully submits that the answer is yes.
Proposition 209 impermissibly obstructs federal civil rights 
enforcement and must therefore be enjoined as a violation of the 
Supremacy Clause. See, e.g ,, North Carolina State Bd. v. Swann.
402 U.S. 43, 91 S. Ct. 1284, 28 L. Ed. 2d 586 (1971), and Swann

I.

1



V. Charlotte .Mecklenburg Bd. of Educ.. 312 F. Supp. 503 (W.D.N.C. 
1970) (where pupil reassignment was a permissible remedy for 
unlawful segregation under federal law, North Carolina's 
initiative barring state agencies from using that remedy violated 
the Supremacy Clause and would be permanently enjoined).

LDF joins appellees and other prospective amici in urging 
that rehearing and rehearing en banc be granted. The panel

ii*i this matter fails to address the central Supreme Court 
and Ninth Circuit authority that governs the Supremacy Clause 
issue. The opinion therefore reaches an erroneous conclusion 
with respect to one of the most important aspects--if not the 
most important aspect--of this case.

This brief is not a complete discussion of all the authority 
unaddressed or misconstrued in the panel's opinion, or of all 
sub-issues. It does address the major lines of applicable 
authority to show that this matter commands the attention of the 
wider court. LDF would welcome the opportunity to brief any of 
the matters discussed here in more detail.

II.
AFFIRMATIVE ACTION REMEDIES ARE AN INTEGRAL PART 

OF FEDERAL CIVIL RIGHTS ENFORCEMENT
The parties to this litigation agree that Calif. Const. Art. 

I, Sec. 31 (Proposition 209), Exhibit A to Munger Declaration, 
attached, prohibits state and local governmental entities from 
using remedies that "prefer" one person over another on the basis

2



of race or gender. See Coalition for Economic Equity v. Wilson. 
1997 U.S. App. LEXIS 6512, at *15.1 Proposition 209's ban 
applies regardless of the circumstances that led the state actor 
to apply the race- or gender-conscious "affirmative action" 
remedy.2 Although Proposition 209's ban contains an exception 

affirmative action that a state or local entity may need to 
use to avoid "loss of federal funds," Exhibit A at Sec. (e), it 
contains no exception permitting non-federally funded state 
actors to adopt affirmative action remedies in any circumstances. 
See Exhibit A. Although it contains an exception for court 
orders and consent decrees that were in effect as of November 5, 
1996, Exhibit A at Sec. (d), it contains no exception for 
affirmative action that federal courts may order after November 
5, 1996. See Exhibit A. Although it recognizes that it may be 
"in conflict with federal law," it also provides that it is 
self-executing." Exhibit A at Sec. (h). Only if some parts of 

it are held to be in conflict with federal law is it to be

Proposition 209 bars "preferential treatment" not only on the 
basis of race and gender, but also on the basis of "color, 
ethnicity, or national origin." Exhibit A at Section (a)! We 
will refer here to "race- and gender-conscious remedies" as a 
abbreviation for this broader list of categories.

2 The panel opinion observes that where "identified victims" 
of racial or gender discrimination are given a preference, that 
may constitute a form of race- or gender-"conscious" relief that 
is nevertheless not "preferential" because the identified 
victims are merely being made whole. Coalition for Economic 
Equity, 1997 U.S. App. LEXIS 6512, at *18. For convenience, we 
will use the terms "race- or gender-conscious remedies" and 
affirmative action" to denote remedies where preference is given 

on a racial or gender basis to persons who are not necessarily 
identified victims of the discrimination that led to the remedy.

3



severable and implemented "to the maximum extent that federal law 
and the United States Constitution permit." Exhibit A. In the 
meantime, Proposition 209 is to govern the state of California as 
written.

Unless and until a court acts to declare it cannot do so, 
Proposition 209 purports to end affirmative action by non- 
federally funded state actors in California.3 It bans these 
remedies regardless of the circumstances that may compel them and 
reUai"d.less of whether they are ordered by federal courts in 
specific cases.

A. The Supreme Court Has Consistently 
Upheld These Remedies

The Supreme Court has carefully considered over several 
decades the appropriate role to be played by race-and gender­
conscious remedies. The Court has concluded that these remedies 
are permissible as a means of enforcing both the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e-2, and the Equal Protection Clause of 
the United States Constitution, U.S. CONST, amend. XIV § 1. See. 
e •?•< Local 28 v. EEOC. 478 U.S. 421, 448-49, 106 S. Ct. 3019, 92 
L. Ed. 2d 344 (1986) (upholding race-conscious remedy to enforce 
Title VII); United States v. Paradise. 480 U.S. 149, 167-68, 107 
S. Ct. 1053, 94 L. Ed. 2d 203 (1987) (upholding race-conscious
remedy to enforce the Equal Protection Clause ban on

In the remainder of this brief we will omit the "non-
federally funded qualifier, though the qualifier does continue to apply.

4



discrimination by public entity); Johnson v. Transp. Agency. 480 
U.S. 616, 649, 107 S. Ct. 1442, 94 L. Ed. 2d 615 (1987) 
(upholding gender-conscious remedy to enforce Title VII)

These remedies are not available to cure "societal
ion or to eliminate the effects of discrimination 

only suspected to have occurred in the past. City of Richmond v 
Croson, 488 U.S. 469, 498-499, 109 S. Ct. 706, 102 L. Ed. 2d 854 
(1989). They are not available to help foster more inclusive 
role models. Wygant v. Jackson Bd. of Educ.. 476 U.S. 267, 275- 
76, 106 S. Ct. 1842, 90 L. Ed. 2d 260, reh'q denied. 478 U.S. 
1014, 106 S. Ct. 3320, 92 L. Ed. 2d 728 (1986). However, the 
Court has specifically permitted race- and gender-conscious 
remedies for civil rights enforcement where the available 
evidence shows that a violation of those laws has occurred. 
Paradise, 480 U.S. at 167 ("It is now well established that 
government bodies, including courts, may constitutionally employ 
racial classifications essential to remedy unlawful treatment of 
racial or ethnic groups subject to discrimination"); Franks v. 
Bowman Transp. Co,. 424 U.S. 747, 96 S. Ct. 1251, 47 L. Ed. 2d 
444 (1976) (where federal antidiscrimination laws have been
violated, an equitable remedy may in the appropriate case include 
a racial or ethnic factor).

Race- and gender-conscious remedies are available in cases 
where discrimination has occurred because, and to the extent, 
they are necessary to enforce the antidiscrimination laws:

5



In most cases, the court need only order the 
employer or union to cease engaging in 
discriminatory practices and award make-whole 
relief to the individuals victimized by those 
practices. In some instances, however, it 
may be necessary to require the employer or 
union to take affirmative steps to end 
discrimination effectively to enforce Title 
VII. . . .In such cases, requiring
recalcitrant employers or unions to hire and 
to admit qualified minorities roughly in 
proportion to the number of qualified 
minorities in the work force may be the only- 
effective way to ensure the full enjoyment of 
the rights protected by Title VII. Local 28. 
478 U.S. at 448-49 (plurality opinion) 
(emphasis added).

In determining whether race-conscious 
remedies are appropriate, we look to several 
factors, including the necessity for the 
relief and the efficacy of alternative 
remedies. . . . Paradise. 480 U.S. at 171
(emphasis added).

6



® • The—Court Holds That These Remedies Are Necessary to
the Enforcement of the Antidiscrimination Laws

Where state action is at issue, as it is by definition under 
Proposition 209 the Court has applied traditional Equal 
Protection analysis to reach these conclusions. In such cases, 
the Court has held, race-conscious remedies are subject to strict 
scrutiny like any other race-conscious state action. See Adarand
Constructors v. Pena. ____ U.S. _____, 115 S. Ct. 2097, 132 L.
Ed. 2d 158. Therefore, to be constitutionally valid, such 
remedies must meet a compelling governmental need. Adarand. 115 
S. Ct. at 2101. ("The decision here makes explicit that federal 
racial classifications, like those of a State, must serve a 
compelling governmental interest. . . .")

The requisite need for a race- or gender-conscious remedy is 
made out, the Court has held, by the need to enforce the federal 
antidiscrimination laws in a specific case where other remedies 
simply will not work. See Paradise. 480 U.S. at 177 (quoting 
Sheet Metal Workers v. EEOC. 478 U.S. 421, 486, 106 S. Ct. 3019,
92 L. Ed. 2d 344 (1986) (race-conscious hiring decree upheld
where "'it is doubtful, given [the Department's] history in this 
litigation, that the District Court had available to it any other 
effective remedy.'").

Justice O'Connor has frequently emphasized the "compelling

need" for affirmative action remedies in appropriate cases to 
enforce the laws:

[R]emedying past or present racial

7



discrimination by a state actor is a 
sufficiently weighty state interest to 
warrant the remedial use of a carefully 
constructed affirmative action program.
Wycrant, 476 U.S. at 286 (O'Connor, J. , 
concurring).

Because the Federal Government has a 
compelling interest in remedying past and 
present discrimination by the Department, the 
District Court unquestionably had the 
authority to fashion a remedy designed to end 
the Department's egregious history of 
discrimination. Paradise. 480 U.S. at 196 
(O'Connor, J., dissenting from the particular 
remedy ordered).

[W]e wish to dispel the notion that strict 
scrutiny is 'strict in theory but fatal in 
fact.'. . .The unhappy persistence of both
the practice and the lingering effects of 
racial discrimination against minority groups 
in the country is an unfortunate reality, and 
government is not disqualified from acting in 
response to it. . . .When race-based action
is necessary to further a compelling

8



interest, such action is within 
constitutional constraints if it satisfies 
the narrow tailoring test this Court has set 
out in previous cases. Adarand. 115 S. Ct. 
at 2117.

The Ninth Circuit has also frequently upheld affirmative 
action remedies for all the reasons set forth in this line of 
Supreme Court authority. See, e .g. . Davis v. City and Countv of 
S_an Francisco, 890 F.2d 1438, 1445 (9th Cir. 1989) ("It is well- 
settled that governmental bodies may constitutionally employ 
racial classifications essential to remedy a past practice of 
unlawful treatment of racial or ethnic groups subject to 
discrimination."); Officers for Justice v. Civil Service 
Commission, 979 F.2d 721, 725 (9th Cir. 1992), cert, denied sub 
—QSQ/ San—Francisco Officers Association v. City and County of San 
Francisco, 507 U.S. 1004, 113 S. Ct. 1645, 123 L. Ed. 2d 267 
(1993). (race- and gender-conscious remedy approved)

Indeed, in Eldredge v. Carpenters 46. 94 F. 3d 1366 (9th 
Cir. 1996), the court reversed a district court judgment in an 
antidiscrimination case because the district court had failed to 
include an affirmative action remedy in its judgment. _ld. at 1371 
(quoting Local 28 of the Sheet Metal Workers' Int'l Ass'n v.
EEOC, 478 U.S. 421, 445, 106 S. Ct. 3019, 92 L. Ed. 2d 344 
(1986) ) .

9



III.
PROPOSITION 209 SEEKS TO BAN THIS FORM OF ENFORCEMENT

IN CALIFORNIA
Noting that the Supreme Court permits affirmative action 

remedies only in limited circumstances, the panel concluded that 
California could make these remedies completely illegal. See 
Coalition for Economic Equity v. Wilson. 1997 U.S. App. LEXIS 
6512, at *19-24. LDF respectfully submits that the above-noted 
Supreme Court and Ninth Circuit authority compels the opposite 
conclusion.

Repeatedly, the Supreme Court has been asked to rule that 
race- and gender-conscious remedies are offensive per se to Equal 
Protection principles, and on each occasion, the Court has 
expressly declined to so hold. See. e.a .. Paradise. 480 U.S. at 
166. Not only do the Court's decisions teach that affirmative 
action may be undertaken consistently with the Equal Protection 
Clause, but, as has been noted, there are circumstances in which 
compliance with the Clause requires that remedy. See discussion 
supra at II(A),(B).

The thoroughness of the Court's analysis in this area 
suggests both the depth and the tenacity of its conclusions. 
Indeed, as recently as 1995, Justice Scalia, in dissent, urged 
the Court to abandon its balanced, pragmatic and law enforcement- 
oriented approach and adopt at the federal level the rule 
embodied in Proposition 209, the rule that race- and gender­
conscious remedies are always impermissible regardless of

10



circumstances. Adarand, 115 S. Ct. at 2118 (Scalia, J., 
dissenting) ("In my view, government can never have a 'compelling 
interest' in discriminating on the basis of race in order to 
'make up' for past racial discrimination in the opposite 
direction").

That view failed to receive the assent of any of the other 
eight members of the Court. Id. at 2117. Instead, Justice 
O'Connor's majority opinion re-affirmed the Court's conclusion 
that affirmative action remedies must remain available and 
reiterated the reason for the need:

The 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. . . .When race-based action
is necessary to further a compelling 
interest, such action is within 
constitutional constraints if it satisfies 
the 'narrow tailoring' test this Court has 
set out in previous cases. Id.

Proposition 209 adopts as the law of California an approach 
to equal protection and anti-discrimination law enforcement that 
has failed to garner the support of eight members of the Supreme 
Court as recently as two years ago. Imposing on California the 
rule unsuccessfully urged in Justice Scalia's lone dissent in

11



Adarand, Proposition 209 bars all state and local governmental 
entities from ever adopting affirmative action remedies, 
regardless of what violations of the anti-discrimination laws 
these entities may have committed, regardless of the seriousness 
or pervasiveness of the entities' conduct, and regardless of 
whether an affirmative action remedy has now become the only way 
to grant effective relief. See Exhibit A (Proposition 209 bans 
affirmative action remedies regardless of these circumstances), 
and Section I, supra.

IV.
PROPOSITION 209'S BAN SUBSTANTIALLY OBSTRUCTS 

ENFORCEMENT OF THE FEDERAL ANTIDISCRIMINATION LAWS
In prohibiting affirmative action remedies under any 

circumstances, Proposition 209 sets up an irreconcilable conflict 
between federal law and California law in the area of civil 
rights enforcement.

Proposition 209 Attempts to Contravene Future
Federal Court Orders

Proposition 209 bans affirmative action remedies totally. On 
its face, it unconditionally enjoins any state actor from using 
an affirmative action remedy from now on, even if a federal 
court, acting pursuant to the Supreme Court authority above- 
cited, properly orders the remedy. See Exhibit A.

This does not appear to be an oversight. Proposition 209 
bans race- and gender-conscious affirmative action without any

12



exception for affirmative action that is ordered by federal 
courts after its effective date. Instead, emphasizing its 
omission of this exception, Proposition 209 carefully excepts 
from its ban only court orders entered before its passage: 
"Nothing in this section shall be interpreted as invalidating any 
court order or consent decree which is in force as of the 
effective date of this section." Exhibit A, Sec.(d). (Emphasis 
added).

Proposition 209 tacitly acknowledges the conflict it 
creates between its dictates and the requirements of federal law 
enforcement. It "resolves" that conflict by (1) leaving existing 
federal court orders in place but (2) barring state agencies from 
obeying federal court orders entered after its effective date.4 
A similarly confrontational approach to federal authority was 
taken by the state of North Carolina in North Carolina State Bd. 
v. Swann, 402 U.S. 43, 91 S. Ct. 1284, 28 L. Ed. 2d 586 (1971), 
and Swann v. Charlotte Mecklenburg Bd. of Educ.. 312 F. Supp. 503

4 This is in marked contrast to the anti-busing initiative 
that the Court upheld in Crawford v. Los Angeles Bd. of Ed 458 
U.S. 527, 102 S. Ct. 3211, 73 L. Ed. 2d 948 (1982). That 
initiative provided that

"[N]o court of this state may impose upon the State of 
California or any public entity, board, or official any 
obligation or responsibility with respect to the use of 
pupil school assignment or pupil transportation, (1) 
except to remedy a specific violation by such party 
that would also constitute a violation of the Equal 
Protection Clause of the 14th Amendment to the United 
States Constitution, and (2) unless a federal court 
would be permitted under federal decisional law to 
impose that obligation or responsibility upon such 
party to remedy the specific violation of the Equal 
Protection Clause . . . "

Id. at 532 (quoting Proposition 1). (Emphasis added).
13



(W.D.N.C. 1970). There, faced with litigation challenging its 
system of de jure school segregation--and the possibility of a 
court-ordered remedy that included pupil re-assignment--North 
Carolina passed an initiative banning pupil re-assignment to 
achieve racial balance. The initiative did not overtly declare 
that it required disobedience to court orders, but its blanket 
ban contained no exception for court orders, either. Id. at n. 1 . 
The Supreme Court did not hesitate to conclude that the 
initiative was an impermissible attempt to obstruct the federal 
court: The prohibition is absolute, and it would inescapably 
operate to obstruct the remedies granted by the District Court in 
the Swann case." Id. at 46, 589. North Carolina is discussed in 
more detail in Section VI(A)(2), infra.

B. Proposition 209 Also Bars "Voluntary"
Affirmative Action

Not all race- and gender-conscious affirmative action is 
undertaken pursuant to court order. Some is undertaken pursuant 
to the settlement of a federal claim, and some is undertaken as a 
means of avoiding a federal claim--in effect settling the claim 
before it has to be filed. But in these cases, too, the limiting 
rules established by the Supreme Court and the Ninth Circuit 
apply. See, e,.q. , Johnson, 480 U.S. 616 (voluntary affirmative 
action program met standard of need).

Given this governing law, the term "voluntary affirmative 
action" is highly misleading. In the cases where it has 
addressed the kind of state action that Proposition 209 covers,

14



the Supreme Court has carefully limited affirmative action 
remedies, generally permitting them only where they are 
compellingly necessary in a specific case. To say that

tirmative action is "voluntary" when it is being permitted only 
because it is necessary to enforce the law is to suggest a 
gratuitousness to these out-of-court remedies that neither the 
Supreme Court nor the Ninth Circuit authority supports.

1• Federal Law Strongly Encourages
Out-of-Court Remediation of Illegal 
Discrimination

Federal law strongly encourages out-of-court resolution of 
antidiscrimination claims through the use of affirmative action 
remedies where those remedies are appropriate. See Bushev v.
N.Y. St. Civ. Serv. Comm'n. 733 F.2d 220, 227 (2d Cir. 1984),
cert, denied, 469 U.S. 1177, 105 S. Ct. 803, 83 L. Ed. 2d 795 
(1985) (requiring employer to wait to be sued by minority 
candidates before implementing affirmative action "would serve no 
purpose other than to impede the process of voluntary compliance 
with Title VII and cause the proliferation of litigation in all 
such cases, thereby generating litigation costs and favoring 
litigious over nonlitigious employees"); Detroit Police Officers' 
Association v. Young. 608 F.2d 671, 690 (6th Cir. 1979), cert. 
denied, 452 U.S. 938, 101 S. Ct. 3079, 69 L. Ed. 2d 951 ("a. 
principle purpose of Title VII is to induce voluntary solutions 
to racial discrimination, one form of which is race-conscious 
affirmative action employment"); Higgins v. City of Vallejo, 823

15



F.2d 351, 355 (9th Cir. 1987), cert, denied. 489 U.S. 1051, 109 
S. Ct. 1310, 103 L. Ed. 2d 579 (1987) (voluntary affirmative 
action was "consistent with Title VII, for it embodie[d] the 
contribution that voluntary employer action can make in 
eliminating the vestiges of discrimination"); In re Birmingham
Reverse_Discrimination Employment Litigation. 20 F.3d 1525, 1537
(11th Cir. 1994) (voluntary affirmative action is "well 
established" as a means to "further Title VII's purpose of 
eliminating the effects of discrimination in the workplace")
See also Wygant, 476 U.S. at 290 (refusing to impose a 
requirement that public employers make findings that they have 
engaged in past discrimination before they can implement an 
affirmative action program because such a requirement would 
"undermine public employers' incentive to meet voluntarily their 

rights obligations") (O'Connor, J., concurring in part and 
concurring in the judgment).

This is the law for good reason: out-of-court remediation of 
civil rights claims--whether before or after filing-- not only 
saves judicial and other resources but vastly increases the 
number of civil rights violations that can be effectively and 
legally redressed. It is therefore integral to the effectiveness 
and efficiency of the federal enforcement scheme.

2• The Ninth Circuit Particularly Encourages 
Out-of-Court Remediation

The Ninth Circuit has been particularly emphatic in this 
regard, making it clear that where affirmative action is called

16



for, a defendant has a "constitutional duty" to undertake the 
remedy without waiting to be so ordered:

Like the federal government, a state or its 
political subdivision has the authority-- 
indeed the 'constitutional duty'--to 
ascertain whether it is denying its citizens 
equal protection of the laws and, if so to 
take corrective steps. Associated General 
Contractors of California v. City & County of 
San Francisco, 813 F.2d 922, 929 (9th Cir.
1987)(citations omitted).

The Ninth Circuit has held that "a state or municipality, 
when presented with evidence of its own culpability in fostering 
or furthering race discrimination, might well be remiss if it 
failed to act upon such evidence." Coral Construction Company v. 
King County, 941 F.2d 910, 921 (9th Cir. 1991), cert, denied. 502 
U.S. 1033, 112 S. Ct. 875, 116 L. Ed. 2d 780. It is equally clear 
that at times "the remedy for intentional discrimination often 
calls for race-specific relief." Coral Construction. 941 F.2d at 
920 .

The court has recognized that sometimes "statistical 
evidence of disparity sufficient to support a prima facie case 
under Title VII may ... constitute a strong basis in the evidence 
for believing that a voluntary affirmative action program was 
required by, and consistent with, the Constitution." Officers 
for Justice v. Civil Service Commission. 979 F.2d at 726.

17



(Emphasis added).

3• Proposition 209 Obstructs the Federal Civil 
Rights Enforcement System

This federal enforcement system is balanced and pragmatic. 
Federal courts have carefully drafted rules governing the 
appropriate circumstances for affirmative action remedies, but 
when those circumstances are present, a defendant is strongly 
encouraged to undertake the necessary remedial action without the 
expenditure of scarce judicial resources.

Proposition 209 weighs into this carefully crafted scheme 
like a bully in a schoolyard. Its sweeping ban on all race- or 
gender-conscious remedies regardless of circumstances announces 
that any state actor who knows he has violated the law and wants 
to remediate pursuant to federal law and his constitutional duty 
must no longer do so. The ban declares that remedies that are, 
by definition, necessary--compellingly needed--to enforce the 
antidiscrimination laws are forbidden nonetheless. And to prevent 
California federal courts from providing relief from this new 
regime, Proposition 209 declares that a state actor may not use 
an affirmative action remedy even if ordered by a federal court.

Unless enjoined, Proposition 209 will severely compromise 
the federal protections Californians currently have from race and 
gender discrimination. As long as a state actor agrees to 
refrain from such behavior in the future, pays damages to those 
who have been shut out, and re-hires such specific victims as can 

identified a difficult task long after the fact —  an exclusive

18



bastion that illegal discrimination has successfully created must 
now be permitted to stand until a federal court orders otherwise 
and until the inevitable ensuing conflict with Proposition 209's 
contrary directive is somehow resolved. This rewards 
discriminators by giving them the ability to maintain exclusive 
enclaves they have illegally created; it punishes victims by 
imposing huge new burdens on them.5

Plainly, this is at odds with the enforcement system that 
has been carefully established by federal authority to govern one 
of the most crucial areas of our national life. It also promises 
a massive increase in federal litigation. Proposition 209 forces 
California governmental agencies that want to implement 
affirmative action remedies to litigate all the way to judgment, 
even where they are well aware of their violations of 
constitutional or statutory law. An already over-burdened 
judiciary will be forced to unnecessarily adjuciate all race and 
gender claims in a waste of judicial and other resources that 
federal civil rights laws has consistently eschewed as against 
public policy. See discussion at Section IV(B)(1), supra. The 
fact that these federal proceedings will lead to court orders 
that Proposition 209 directs state actors to disobey only

Contemplating the world Proposition 209 seeks to create 
underscores the wisdom of the Supreme Court in refusing to 
endorse that vision in Adarand and the other cases discussed 
here. Without affirmative action remedies--and in California 
under Proposition 209 those who wish to exclude others may do so 
secure in the knowledge that the law will be powerless to de­
construct effectively any exclusive stronghold they can 
successfully create, or preserve.

19



S U P R E M E  C O U R T  O F  T H E  U N I T E D  S T A T E S  
O F F I C E  O F  T H E  C L E R K  

W A S H I N G T O N .  D. C.  2 0 5 4 3

April 19, 1993

Mr. Charles Stephen Ralston 
NAACP Legal Defense Fund 
99 Hudson Street 
New York, NY 10013

Re: Elena Ruth Sassower and Doris L. Sassower
v. Katherine M. Field, et al.
No. 92-140S

Dear Mr. Ralston;

The Court today entered the following order in the above 
entitled case:

The motion of petitioners to have the petition for writ 
considered with the petition in 92-1544, Pacific Legal 
Foundation v. Kayfetz is denied. The petition for a writ of

Very truly yours,

William K. Suter, Clerk

cert iorari is denied.



underscores the conflict between state and federal authority that 
Proposition 209 has created.

V.
THE SUPREMACY CLAUSE (PREEMPTION)PROHIBITS 

A STATE FROM INTERPOSING THESE KINDS OF OBSTACLES TO
FEDERAL LAW

The Supremacy Clause of the U.S. Constitution provides that 
the "Constitution, and the laws of the United States which shall 
be made in pursuance thereof . . . shall be the supreme law of
the land . . . anything in the Constitution or laws of any State
to the contrary notwithstanding." U.S. CONST, art. VI, cl. 2. 
Under the Supremacy Clause, "any state law, however clearly 
within a State's acknowledged power, which interferes with or is 
contrary to federal law, must yield." Free v. Bland. 369 U.S. 
663, 666, 82 S. Ct. 1089, 8 L. Ed. 2d 180 (1962) (citing Gibbons 
v. Ogden, 22 U.S. 1, 9 Wheat 1, 6 L. Ed. 23 (1824)). "The
relative importance to the State of its own law is not material 
when there is a conflict with a valid federal law." id.

When Congress has not completely displaced state regulation, 
federal law may still preempt state law if it actually conflicts 
with federal law. Such a conflict can occur when either 
compliance with both federal and state law is physically 
impossible, Florida Lime & Avocado Growers. Inc, v. Paul. 373 

U.S. 132, 142-43, 83 S. Ct. 1210, 10 L. Ed. 2d 248, reh'q denied. 
374 U.S. 858, 83 S. Ct. 1861, 10 L. Ed. 2d 1082 (1963), or when

20



state law acts as an obstacle to the accomplishment of the full 
purposes and objectives of Congress. Haines v. Davidnw-it-? 312 

U.S. 52, 67, 61 S. Ct. 399, 85 L. Ed. 581 (1941)
State law "stands as an obstacle" to the full implementation 

of federal law and must yield to federal law even if its shares 
the same goal but '"interferes with the methods by which the 
federal statute was designed to reach that]' goal.'" Gade v .
Nat'l Solid Wastes Management Ass'n.. 505 U.S. 88, 103, 112 S.
Ct. 2374, 120 L. Ed. 2d 73 (1992) (quoting International Paper 
Co. v. Ouellette, 479 U.S. 481, 494, 107 S. Ct. 805, 93 L. Ed. 2d 
883 (1987)).

The ultimate task of the court is to determine whether state 
regulation is consistent with the structure and purpose of the 
statute as a whole by "[ljooking to the provisions of the whole 
law, and to its object and policy." Pilot Life Ins, Co. v. 
Dedeaux, 481 U.S. 41, 51, superseded by statue on other grounds 
as stated in Hunter v. Ameritech. 779 F. Supp. 419 (N.D. Ill 
1991) (internal citation omitted).

Federal law preempts state law where state law "chills" or 
burdens the effectuation of federal policy even where the effect 
is indirect. See, e .g. , Xerox Corp. v. Countv of Harris. 459 

U.S. 145, 103 S. Ct. 523, 74 L. Ed. 2d 323 (1982) (local
imposition of personal property taxes on goods stored in 
federally-created duty-free zones preempted because it was 
inconsistent with Congress' purpose of encouraging the use of 
American ports); Nash v. Florida Industrial Commission. 389 U.S.

21



235, 88 S. Ct. 362, 19 L. Ed. 2d 438 (1967) (Florida law refusing 
unemployment insurance to claimants who file unfair labor 
practices against former employer preempted by National Labor 
relations Act because it discouraged vindication of federal 
rights); East-Bibb Twiggs Neighborhood Ass'n v. Macon-Bibb 
Planning & Zoning Comm'n. 674 F. Supp. 1475, 1477 (M.D. Ga.
1987), aff'd, 888 F.2d 1576 (11th Cir. 1989) (state abusive 
litigation counterclaim against federal civil rights causes of 
action preempted because if allowed, it would "have a tremendous 
'chilling-effect' on the assertion of these federally created 
rights").

Moreover, the burden upon federal policy need not be 
onerous. In Felder v. Casey. 487 U.S. 131, 108 S. Ct. 2302, 101
L. Ed. 2d 123 (1988), the Court held that a Wisconsin notice of
d^im statute requiring that any plaintiff bringing a lawsuit 
against a state or local government must first send a notice of 
claim to the defendant and wait 120 days before filing suit was 
preempted by the federal Civil Rights Act. Even though the 
requirement was not a complete bar to the filing of a Section 
1983 civil rights claim, the Court held its burdens sufficiently 
frustrated the central purpose of the civil rights laws "to 
provide compensatory relief to those deprived of their federal 
rights by state actors" so as to warrant pre-emption. Id. at 
141.

In addition to state laws which chill or burden the 
accomplishment and execution of federal policy, state laws which

22



are enacted to further the same policies underlying federal 
legislation may also be pre-empted if they upset the balance of 
competing interests struck by Congress. In Haines. 312 U.S. 52, 
61 S. Ct. 399, 85 L. Ed. 581 (1941), the Court held that a 
Pennsylvania alien registration law was preempted by the federal 
Alien Registration Act because it imposed requirements and 
disabilities beyond those imposed by the federal Act and thus 
upset the "middle path" between civil rights and the need for 
national security struck by congress. id. at 73-4 .

By attempting to outlaw the race and gender-conscious 
remedies that the Supreme Court and the Ninth Circuit have upheld 
and encouraged as necessary to civil rights enforcement, 
Proposition 209 obstructs, burdens, and conflicts with federal 
enforcement of the civil rights laws. It is preempted by federal 
law under all of the principles that govern this question and 
that have been noted here.

VI.
THE PANEL OPINION ON THE PREEMPTION ISSUE 

FAILS TO ADDRESS THIS GOVERNING SUPREME COURT 
AND NINTH CIRCUIT AUTHORITY

The panel s opinion in this case fails adequately to address 
any of these matters--the Supreme Court's committed retention of 
affirmative action remedies for civil rights enforcement, the 
Ninth Circuit law encouraging extra-judicial application of those 
remedies to make the law effective, or the conflict Proposition

23



209 presents to this federal enforcement scheme. The defects in 
the current ruling, we submit, become clear when this analysis is 
undertaken.

This section discusses how, specifically, the panel reached 
its erroneous conclusion on the preemption issue. Rehearing and 
rehearing en banc should be granted to give the whole court an 
opportunity to address and resolve the conflict between the panel 
decision and this governing authority. See Fed. R. App. P. 35(a) 
(rehearing en banc appropriate where panel opinion in direct 
conflict with other law).

A. The Panel Opinion Omits Anv Consideration of
the Supremacy Clause Issue Raised by the Need to 
Enforce the Equal Protection Clause According to 
Federal Standards

The panel failed to address at all one of the most 
significant issues raised by Proposition 209, its conflict with-- 
and preemption by--the federal system of enforcing the Equal 
Protection Clause of the Fourteenth Amendment. The panel 
determined that Proposition 209 was not preempted by Title VII 
Coalition for Economic Equity v. Wilson. 1997 U.S. App. LEXIS 
6512, at *48. Its error with regard to that issue is addressed 
in the following section. But Proposition 209 would be overridden 
by the Equal Protection Clause of the Fourteenth Amendment even 
it if were not also preempted by Title VII.

24



1- The Supremacy Clause Applies With Spenial 
Force to the Equal Protection Clause

Proposition 209 applies only to the public sector. See 
Exhibit A, Secs, (a), (f). This sector is governed by the Equal
Protection Clause as well as by Title VII. See, e.q.. Paradise. 
480 U.S. at 166 (independently of Title VII, Equal Protection 
Clause bans discrimination by public entity). The federal 
enforcement system for the Equal Protection Clause in the public 
sector is separate from but parallel to the enforcement system 
for Title VII, and the observations made above concerning the 
circumstances in which affirmative action remedies have been held 
to be necessary apply to both:

[T]he proper initial inquiry in evaluating 
the legality of an affirmative action plan by 
a public employer under Title VII is no 
different from that required by the Equal 
Protection Clause. In either case. . .the 
employer must have had a firm basis for 
believing that remedial action was required.
Johnson. 480 U.S. at 649 (O'Connor 
concurring).

For all the reasons that have been noted, Proposition 209 
interferes with the use of affirmative action remedies to enforce 
the Equal Protection Clause in the public sector. And, here, the 
Supreme Court has made it doubly clear that this interference is 
impermissible.

25



The Supreme Court has emphasized that in determining the 
extent to which affirmative action remedies are appropriate in 
the public sector, federal law under the Equal Protection Clause 
overrides state assessments. See. Croson. 488 U.S. at 490-91.
In Croson, the Court struck down an affirmative action program 
because it did not believe the state had a sufficient factual 
basis for believing the remedy was warranted. In considering 
what weight the state's independent judgment should be given on 
that question, the Court concluded that federal standards, not 
state policy preferences, were controlling with respect to 
affirmative action remedies:

To hold otherwise would be to cede control 
over the content of the Equal Protection 
Clause to the 50 state legislatures and their 
myriad political subdivisions. . . .  We 
believe that such a result would be contrary 
to the intentions of the Framers of the 
Fourteenth Amendment, who desired to place 
clear limits of the States' use of race as a 
criterion for legislative action, and to have 
the federal courts enforce those limitations.
Id. (Emphasis added).

Just as a state cannot undermine Equal Protection Clause 
enforcement by imposing excessive affirmative action remedies, as 
in Croson, it cannot undermine such enforcement by withholding 
these remedies where they are deemed necessary under federal law.

26



As the Court in Croson observed, a very great degree of 
skepticism is called for whenever a state attempts to depart from 
federal law in the area of Equal Protection: "We simply note what 
should be apparent to all--§ l of the Fourteenth Amendment 
stemmed from a distrust of state legislative enactments based on 
race. . . . "  Id. at 491. It is a distrust that has proved 
warranted.

2. North Carolina v. Swann Governs This Case
Virtually on all fours with the case presented here are 

North Carolina, 402 U.S. 43, and the district court opinion the 
Supreme Court approved and incorporated, Swann. 312 F. Supp. 503. 
In North Carolina, allegations of de jure segregation had led to 
litigation and exposed the school system to the possibility of 
court-ordered pupil re-assignment. The state attempted to head 
off that possibility by passing an initiative that barred pupil 
re-assignment to achieve racial balance. As was noted above, the 
initiative's ban operated to prohibit both voluntary re­
assignment and any re-assignment that might be ordered by a 
federal court. See discussion at Section IV(A), supra. In a 
manner directly analogous to Proposition 209, the voters of North 
Carolina attempted to withdraw completely from use in their state 
a remedy for Equal Protection Clause violations that the federal 
courts had approved for use where necessary to enforce the law.

Swann v ._Charlotte-Mecklenberq Board of Education. 402 U.S.
1, 28 L. Ed. 2d 554, 91 S. Ct. 1267 (1971)(re-assigning students 
on a racial basis held an appropriate remedy for a school

27



system's violation of the Equal Protection Clause by maintaining 
a segregated school system).

—Carolina, The Supreme Court affirmed a permanent 
injunction against the initiative because it plainly violated the 
Supremacy Clause. The state had no power to "hamper the ability 
of local authorities to effectively remedy constitutional 
violations." North Carolina. 402 U.S. at 461. Pupil re­
assignment was a necessary enforcement tool in some 
circumstances, and it is unlikely that a truly effective remedy 
could be devised without continued reliance upon it." Id. The 
initiative was invalid not only because it would obstruct court 
orders but because it attempted to bar state actors from out-of- 
court remediation of Equal Protection Clause violations:

Similarly, the flat prohibition against 
assignment of students for the purpose of 
creating a racial balance must inevitably 
conflict with the duty of school authorities 
to dis-establish dual school systems. . . An
absolute prohibition against use of such a 
device. . . contravenes the implicit command 
of Green v. County School Board [cite 
omitted] that all reasonable methods be 
available to formulate an effective remedy.
Id. at 46.

Cf. Crawford, 458 U.S. at 535 (anti-busing initiative did not 
violate the Fourteenth Amendment because it contained language

28



specifically protecting federal remedies and therefore did not 
"inhibit enforcement of any federal law or constitutional 
requirement.")(text of initiative set forth at note 4, supra).

B. The Panel Reached an Erroneous Conclusion with Respect 
to Proposition 209's Preemption by Title VII6 

Although it did not address the Supremacy Clause issue 
raised by the need to enforce the Equal Protection Clause, the 
panel did address a secondary question, whether Proposition was 
preempted by Title VII. Here, its conclusion was at odds with 
the reasoning of the Supreme Court opinion on which it relied.

The district court had found that Proposition 209 violates 
the Supremacy Clause under the doctrine of obstacle preemption. 
Coalition for Economic Equity, et. al.. v. Wilson. 946 F. Supp 
1480, 1517 (N.D. Cal. 1996). In reversing, the panel asserted 
that obstacle preemption does not apply to Title VII and that 
preemption would only apply if there were an "actual conflict" 
between Proposition 209 and federal law. Coalition for Economic 
Equity, et. al., v. Wilson. 1997 U.S. App. LEXIS 6512, at *48.7

6 LDF respectfully reserves the additional issue of 
Proposition 209's preemption by Title VI, 42 U.S.C. § 2000d, and 
Title IX, 20 U.S.C. § 1681(a), of the Civil Rights Act of 1964.
We would welcome the opportunity to address those issues as well.

The Court wrote:
The court is correct that federal law may 
pre-empt state law to the extent that the 
state law "stands as an obstacle to the 
accomplishment and execution of the full 
purposes and objectives of congress". . .The 
district court apparently overlooked, 
however, the express pre-emption provisions 
of the 1964 Civil Rights Act. "In two 
sections of the 1964 Civil Rights Act,

29



To summarily eliminate obstacle preemption from Title VII, 
the panel relied on California Fed. Savinas & Loan Ass'n v. 
Guerra, 479 U.S. 272, 107 S. Ct. 683, 93 L. Ed. 2d 613 (1987).
The question in Guerra was whether a state anti-discrimination 
law could do more to protect pregnant women from losing their 
jobs than Title VII does. The Supreme Court's answer was that 
the Ninth Circuit had been right in holding that Congress 
intended Title VII to be "'a floor beneath which pregnancy 
disability may not drop--not a ceiling above which they may not 
rise.'" Id. at 285. Far from supporting the right of states to 
erect obstacles to Title VII enforcement by withdrawing necessary 
remedies as Proposition 209 does, Guerra holds only that state 
laws are permitted to provide more remedies than federal law 
does. See id.

The language the panel quotes from Guerra was not the 
holding. Indeed, it is found in a section of the opinion which a 
majority of the Court did not join. See id. at 274,280-284 
(opinion of the Court did not include part IIIA, in which the 
quote is found). Moreover, the opinion of the Court itself 
explained that the touchstone for deciding whether a federal 
statute preempts state law is Congress' intent. Id. at 285

sections 798 and 1104, Congress has indicated 
that state laws will be pre-emoted only if 
they actually conflict with federal law." California 

Fed. Savings & Loan Ass'n v Guerra. 479, U.S. 272, 281, 107 
S. Ct. 683, 93 L. Ed. 2d 613 (1987)(plurality opinion). Id.

30



("'[t]he purpose of Congress is the ultimate touchstone' of the 
preemption inquiry."). Even the section relied on by the panel 
had noted that with respect to Title VII preemption, Congress 
intended to leave in place state antidiscrimination laws deemed 
helpful in supporting the antidiscrimination effort, recognizing 
the "importance Congress attached to state antidiscrimination 
laws in achieving Title VII's goal of equal employment 
opportunity." Guerra, 479 U.S. at 283 and n. 12. See Coalition 
for Economic Equity v. Wilson. 1997 U.S. App. LEXIS 6512, at 
*48 .

The reason Guerra permitted additional remedies was not 
that obstacle preemption concepts have no application under Title
VII. The analysis in Guerra would suggest, to the contrary, that 
these concepts would apply with special force to Title VII. In 
Guerra, the Court was faced with a state law that had sought to 
exceed Title VII's "floor." But in the opposite case, where a 
party argues that state law may weaken Title VII enforcement —  
here by outlawing remedies that federal courts have deemed 
necessary--Guerra itself strongly suggests the opposite answer.

In this case, the panel's decision to read obstacle 
preemption out of Title VII served to support reversal because 
the district court had relied on that doctrine. In truth, 
though, LDF respectfully submits that Proposition 209 would be 
invalid no matter what standard of preemption were applied under 
Title VII. This is an initiative that orders California agencies 
not to take affirmative steps to remedy illegal discrimination

31



even when governing federal law requires those steps and even 
when so ordered by a federal court. It is clearly a major 
obstacle to federal law enforcement. But it is also 
irreconcilably "inconsistent" with federal law, the panel's own 
formulation of the standard. See note 3, supra. And, by barring 
remedies that are definitionally necessary to redress unlawful 
employment practices in specific cases, it will in a very real 
sense "permit" those unlawful practices, violating even the 
standard stated by Justice Scalia in his lone concurring opinion 
in Guerra. Id. at 633.

32



VII
CONCLUSION

For all the reasons set forth herein, Prospective Amicus 
NAACP Legal Defense and Educational Fund, Inc. respectfully 
submits that the petition for rehearing and suggestion for 
rehearing en banc should be granted.

Dated: April 22, 1997 Respectfully submitted,
Elaine R. Jones 
Theodore M. Shaw 
Molly Munger 
Darci E. Burrell
NAACP LEGAL DEFENSE AND EDUCATIONAL 

FUND, INC.
315 W. 9th Street, Suite 208 
Los Angeles, CA 90015 
(213) 624-2405

33



IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
COALITION FOR ECONOMIC EQUITY, ) No. 97-15030, 97-15031 
et al., )

)
Plaintiffs-Appellees, )

)
vs. )

)
PETE WILSON, et al., )

)
Defendant-Appellant. )

)

DECLARATION OF MOLLY MUNGER IN SUPPORT OF NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.'S BRIEF OF AMICUS CURIAE

I, Molly Munger, do hereby declare:

1. I am counsel for amicus curiae the NAACP Legal Defense 

and Educational Fund, Inc. in the instant case. I am admitted to 

practice in the United States Court of Appeals for the Ninth 

Circuit and am a member in good standing of the State Bar of 

California. If called to testify, I am competent to testify 

about the following matters:

2. I am submitting this Declaration with regard to the 

document cited in, and submitted in support of, the accompanying 

Brief of Amicus Curiae, NAACP Legal Defense and Educational Fund, 

Inc., in Support of Appellees Petition for Rehearing and 

Suggestion for Rehearing En Banc.

0 000034



I have attached as an Exhibit to this Declaration a

true and exact copy of the text of Proposition 209, downloaded 

from the web page of the Attorney General of the State of 

California. I have compared this text to that quoted in 

Appellees' Memorandum of Points and Authorities in Support of Ex 

Parte Application for Temporary Restraining Order and Order to 

Show Cause Re Preliminary Injunction and assured myself that the 

language is the same.

I declare under penalty of perjury under the laws of the 

State of California that the foregoing is true and correct. 

Executed this 22nd day of April 1997 at Los Angeles California.

Molly Munger/\

0 000035





PROPOSITION 209 TEXT http://caag.state.ca.us/filings/text209.ht

This is a long document. At the end there is an option to download it. 
If that is what you want to do you may go directly there now.

CALIFORNIA CIVIL RIGHTS INITIATIVE
C C R I

The following is the text of Proposition 209, which added 
Article 1, section 31, to the California Constitution:

(a) 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.

(b) This section shall apply only to action taken after the section's effective date.

(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on 
sex which are reasonably necessary to the normal operation of public employment, public 
education, or public contracting.

(d) Nothing in this section shall be interpreted as invalidating any court order or consent 
decree which is in force as of the effective date of this section.

(e) Nothing in this section shall be interpreted as prohibiting 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.

(f) For the purposes of this section, "state" shall include, but not necessarily be limited to, the 
state itself, any city, county, city and county, public university system, including the 
University of California, community college district, school district, special district, or any 
other political subdivision or governmental instrumentality of or within the state.

(g) The remedies available for violations of this section shall be the same, regardless of the 
injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for 
violations of then-existing California antidiscrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in 
conflict with federal law or the United States Constitution, the section shall be implemented to 
the maximum extent that federal law and the United States Constitution permit. Any 
provision held invalid shall be severable from the remaining portions of this section.

The entire text of Proposition 209 (above) is available for download. 
Select the down arrow to the left.

0 000036

1 of 1 04/17/97 14:45:

http://caag.state.ca.us/filings/text209.ht


CERTIFICATE OF COMPLIANCE

Amicus Curiae, NAACP Legal Defense and Educational Fund, 

Inc., hereby certifies that the accompanying, Brief of Amicus 
Curiae in Support of Appellees' Petition for Rehearing and 

Suggestion for Rehearing En Banc, is double-spaced. It is in 

proportionally spaced 12 pt Courier font with a word count of

Chandra E£lingtarfi-E-/ans

8,334 .



DECLARATION OF SERVICE BY MAIL

Case Name: Coalition for Economic Equity, et. al., Case No.: 90-16398

I, the undersigned, declare as follows:

I am a citizen of the United States, over the age of 18 years and not a party to the within 
action; my place of employment and business address is 315 W. 9th Street, Suite 208. Los 
Angeles, California 90015.

On April 22, 1997,1 served the attached

BRIEF OF AMICUS CURIAE, NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC IN SUPPORT OF 

PETITION FOR REHEARING AND SUGGESTION FOR 
REHEARING EN BANC

by placing a true copy thereof in an envelope/s to be deposited in the United States Mail 
at Los Angeles, California, with postage thereon fully prepaid. There is delivery service by 
United States Mail at each of the places addressed, for there is regular communication by m ail 
between the place of mailing and each of the places so addressed.

Julian Gross
THE EMPLOYMENT LAW CENTER, 
A PROJECT OF THE LEGAL AID 

SOCIETY OF SAN FRANCISCO 
1663 Mission Street, Suite 400 
San Francisco, CA 94103 
(415) 864-8848

Martha F. Davis
Julie Goldscheid
NOW LEGAL DEFENSE AND
EDUCATION FUND
99 Hudson Street, 12th Floor
New York, NY 10013
(212) 925-6635

Evan H. Caminker 
UCLA SCHOOL OF LAW 
405 Hilgard Avenue 
Los Angeles, CA 90095 
(310) 206-7323

Karl Manheim
LOYOLA LAW SCHOOL
Post Office Box 15019
919 S. Albany Street
Los Angeles, CA 90015-0019
(213)736-1106

Stewart Kwoh 
Julie Su
ASIAN PACIFIC AMERICAN LEGAL 
CENTER
1010 S. Flower Street, Suite 302 
Los Angeles, CA 90015 
(213)748-2022

Abby J. Leibman
CALIFORNIA WOMEN’S LAW CENTER 
6024 Wilshire Boulevard 
Los Angeles, CA 90036 
(213)935-4101



Kim Pate 
Geetanjali Dhillon
EQUAL RIGHTS ADVOCATES, INC 
1663 Mission Street, 4th Floor 
San Francisco, CA 94103 
(415)621-2493

Joseph S. Avila
AVILA & PUTNAM
515 S. Figueroa Street, Suite 1550
Los Angeles, CA 90071
(213)892-1444

Elliot M. Mineberg
PEOPLE FOR THE AMERICAN WAY 
2000 M. Street, N.W., Suite 400 
Washington, D.C. 20036 
(202) 467-4999

Christopher F. Edley, Jr.
HARVARD LAW SCHOOL 
1525 Massachusetts Avenue 
Cambridge, Massachusetts 02138

Glenn Rothner 
Ellen Greenstone
ROTHNER, SEGALL, BAHAN &
GREENSTONE
200 E. Del Mar Blvd., Suite 200
Pasadena, CA 91105
(213) 681-2511

Attorneys for Plaintiff 
California Labor Federation

Attorneys for All Plaintiffs except 
California Labor Federation



Paul Dobson 
Linda Cabatic 
Attorney General 
1300 I Street, 11th Floor 
Sacramento, CA 95814

Gary Morrison 
Christopher Patti 
University of California Counsel 
300 Lakeside Drive, 7th Floor 
Oakland, CA 94612-3565

Joseph Symkowick
Joanne Lowe
Janet G. McCormick
California Department of Education
721 Capitol Mall, Room 552
Sacramento, CA 94244-2720

Ian Fan
Ellen Pilsecker
Office of the County Counsel
San Diego County
1600 Pacific Highway
San Diego, CA 92101

Thomas Hendricks 
Office of the County Counsel 
Marin County 
Civic Center #342 
San Rafael, CA 94903

Michael A. Carvin 
Charles J. Cooper 
David H. Thompson 
Cooper & Carvin 
2000 K Street, NW 
Washington, D.C. 20006

Scott Emblidge
San Francisco City Attoney’s Office 
1390 Market Street, 5th Floor 
San Francisco, CA 94102

Victor J. Westman 
Phillip Althoff 
Office of the County Counsel 
Contra Costa County 
P.O. Box 69
Martinez, CA 94553-0116

Nicholas George-Rodriguez 
Larry Newberry
Pasadena City Attorney’s Office 
100 N. Garfield Avenue 
Pasadena, CA 91109

Manuel Klausner
One Bunker Hill Bldg., 8th Floor
601 W. Fifth Street
Los Angeles, CA 90071

Michael E. Rosman 
Hans Bader
Center for Individual Rights 
1233 20th Street, NW 
Suite 300
Washington, D.C. 20036

Attorney’s for Defendant



I declare under penalty of peijury that the foregoing is true and correct. 

Executed on April 22, 1997, at Los Angeles, California.

sh e d r a Lyn  d . p u l l u m
Legal Secretary

NAACP Legal Defense and Educational Fund, Inc. 
315 W. 9th Street, Suite 208 

Los Angeles, CA 90015