APPELLATE COURT OKS AFFIRMATIVE-ACTION BAN.

Byline: Paul Hefner Daily News Sacramento Bureau

The ban on affirmative-action preferences for women and minorities that California voters approved as Proposition 209 doesn't violate the Constitution, a federal appeals court ruled Tuesday.

A three-judge panel unanimously rejected claims that outlawing preferential treatment in hiring, letting contracts and granting college admission violates the rights of those who benefit from affirmative action.

Instead, the Constitution ``barely permits'' such preferences - and certainly doesn't pre-empt a state from banning them, Judge Diarmuid O'Scannlain wrote on behalf of the 9th U.S. Circuit Court of Appeals.

``Proposition 209's ban on race and gender preferences, as a matter of law and logic, does not violate the (Constitution's) equal protection clause in any conventional sense,'' O'Scannlain wrote.

The court overturned a lower court's ruling that has kept the initiative from taking effect. And O'Scannlain used particularly harsh words for the injunction District Judge Thelton Henderson granted shortly after the voters approved the measure in November.

``A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy,'' O'Scannlain's 38-page opinion stated.

Proposition 209 amends the state Constitution to forbid racial and gender preferences in state and local government employment, contracting and education.

Attorneys for the American Civil Liberties Union, which brought suit against the initiative, vowed to continue their court fight. They have two weeks to seek a vote among the court's 19 active judges - most of whom are Republicans - to have the case reheard by an 11-judge panel.

Tuesday's ruling won't take effect until after that deadline.

President Clinton, who opposed Proposition 209 during the campaign and in court, called an end to such programs a mistake. He told reporters that if the measure is ultimately upheld ``we'll all have to regroup and find new ways to achieve the same objective.''

But Gov. Pete Wilson and other backers of the initiative hailed the ruling.

``Today is a victory for every Californian, for every man, woman and child who asks only that he or she be treated fairly and equally under the law, and be judged by their integrity and their character,'' Wilson said.

He praised the court for abiding by a strict reading of the Constitution and said that their ruling brings the state closer to assuring equal opportunity for all.

``It is not just a pleasure, it is very heartening to say that today we have seen justice served,'' Wilson said.

Ward Connerly, a University of California regent who pushed for passage of the measure, predicted that the ruling would strengthen similar measures proposed in other states.

``It's a knife, it's a spike, it's a dagger in the coffin of preferences,'' he said.

But Prop. 209 opponents criticized the ruling as misguided and racially divisive.

``It's really hard to believe. It's a setback,'' said Geraldine Washington, president of the NAACP's Los Angeles branch.

She said that those who would end affirmative-action programs are turning a blind eye to the discrimination that still exists for many groups.

``What affirmative action was and is is equal opportunity,'' Washington said. ``I'm having a hard time understanding how the judges could misunderstand it.''

But O'Scannlain contended that the programs that would be dismantled under Prop. 209 ``work wholly to the benefit of certain members of one group and correspondingly to the harm of certain members of another group.''

Should the initiative be upheld in federal court, its ultimate impact on all state programs is unclear. University of California Regents voted earlier to eliminate preferential admissions programs starting in 1998.

But separate action still would be needed in state court to strike specific programs out of state law, and a complete list of such programs isn't yet finished, officials said.

Wilson earlier filed suit in Sacramento, challenging five specific programs, including the practice of setting goals and time lines for increasing the proportion of women and minority employees.