Wilson

We must decide whether a provision of the California Constitution prohibiting public race and gender preferences violates the Equal Protection Clause of the United States Constitution.

I

A

On November 5, 1996, the people of the State of California adopted the California Civil Rights Initiative as an amendment to their Constitution. The initiative, which appeared on the ballot as Proposition 209, provides in relevant part that

Cal. Const, art. 1, § 31(a).

The California Legislative Analyst’s Office portrayed Proposition 209 to the voters as a measure that would eliminate public race-based and gender-based affirmative action programs. The California Ballot Pamphlet explained to voters that:

The Ballot Pamphlet also included arguments by proponents and opponents of Proposition 209. Proponents urged a “yes” vote, arguing that:

Opponents of Proposition 209 urged a “no” vote, responding that:

Proposition 209 passed by a margin of 54 to 46 percent; of nearly 9 million Californians casting ballots, 4,736,180 voted in favor of the initiative and 3,986,196 voted against it.

B

On the day after the election, November 6, 1996, several individuals and groups (“plaintiffs”) claiming…

I respectfully dissent from the court’s decision not to review this case en banc. En banc review was warranted in this case for two reasons.

First, the case is extraordinarily important. In upholding the constitutionality of California Proposition 209, which forbids the state to offer any preferential treatment in employment, education, or contracting on the basis of race or gender, the case has put equal protection law in a state of turmoil. At stake is whether the voters may bar the state’s institutions from using narrowly tailored race- or gender-based remedies which serve compelling state interests, including redressing the effects of past racial and gender-based discrimination by those very institutions.

Second, the decision is contrary to controlling Supreme Court precedent. Proposition 209 puts only race- or gender-based remedies for past discrimination, and no other state preferences, beyond the reach of the legislative or any other process, save another state initiative. The Supreme Court has squarely held that a state violates the Constitution when it attempts to put legislative remedies which benefit minorities at a remote level of government beyond the ordinary…