CLINTON DELAYS U.S. CHALLENGE TO PROP. 209.

Byline: Associated Press 

Clinton administration officials have decided to take more time to decide whether and how to join a court challenge to Proposition 209, the California law that would ban race- and gender-based affirmative action.

The Justice Department ``asked the White House for additional time to address the legal basis for a challenge to the California proposition,'' White House press secretary Mike McCurry told reporters Wednesday after the administration passed up one deadline for joining the case.

``The White House believed that it was proper to give the Justice Department time to look at those legal issues,'' McCurry said. He estimated it might take about two weeks.

No matter what legal strategy is recommended, McCurry noted, President Clinton during the election campaign spoke out against the proposition, which prohibits preferences based on race and gender in public hiring, contracting and education.

``The president has been opposed, has expressed his opposition, reiterated his opposition publicly yesterday. That's not the issue here,'' McCurry said. ``The strict issue here is on what constitutional grounds the plaintiffs are seeking to overturn the proposition. Motions and argumentation in that issue have only recently been filed, following the election.''

An initiative approved by 54 percent of California voters, Proposition 209 prohibits preferences based on race and gender in public hiring, contracting and education. U.S. District Judge Thelton Henderson issued a temporary restraining order late last month barring enforcement of the measure, saying it might be unconstitutional.

The administration passed up Wednesday's deadline for entering the case if it wanted to argue at next Monday's hearing in U.S. District Court in San Francisco on whether Henderson's order should be extended until the legal challenges are resolved.

``There are other opportunities that will occur later in the litigation for the government to enter the case if the government decides to do that,'' McCurry said.

Intervention could take either of two forms: filing a brief as a friend of the court or joining the case as another plaintiff seeking to overturn the initiative.

Justice Department lawyers are studying a 1982 Supreme Court decision, Washington vs. Seattle School District, which was cited by challengers of Proposition 209.

In that case, the high court struck down a local ordinance limiting school busing on grounds that it made it harder for one group, African-Americans, to petition government for a court-approved remedy for discrimination - busing. The court said this violated the Constitution's equal-protection clause.

Some Justice attorneys are uncertain whether the current Supreme Court, which is more conservative, would find that ruling applicable to the California proposition. They are studying other possible legal arguments.