Full opinion text
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER RE PRELIMINARY INJUNCTION THELTON E. HENDERSON, Chief Judge. I. INTRODUCTION This action presents a challenge to the constitutionality of newly-enacted Article 1, section 31 of the California Constitution. This measure, which appeared on the ballot as Proposition 209, was passed by the California' electorate on November 5, 1996. It provides in relevant part as follows: 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. Cal. Const. art. 1, § 31(a). It is important to note at the outset that much of this language simply reaffirms existing anti-discrimination protections already provided by the United States and California Constitutions, and by the 1964 Civil Rights Act. These laws have long-guaranteed all persons “equal protection of the law,”' and prohibited discrimination in employment and in any program or activity receiving federal assistance. This aspect of Proposition 209— which creates no change in existing law — is not at issue in this case. Indeed, it could hardly be more clear that a law that merely affirms the non-discrimination principles in our Constitution is, itself, constitutional. It is also undisputed that the Constitution precludes voluntary, government-sponsored race and gender “preferences” except in the most limited circumstances. Thus, government entities were already barred, prior to Proposition 209, from using race-conscious “preferences,” e.g. race-conscious affirmative action programs, unless they could pass the most exacting “strict scrutiny” required by the Fourteenth Amendment. Under this test, only those programs that are “narrowly tailored” and “necessary to break down patterns of deliberate exclusion” perpetuated by the enacting agency are permitted. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 509, 109 S.Ct. 706, 730, 102 L.Ed.2d 854 (1989) (emphasis added). Quotas are not permitted. See, e.g., Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Gender-based programs, under existing law, are also subject to a heightened level of scrutiny. U.S. v. Virginia, — U.S. -, -, 116 S.Ct. 2264, 2275, 135 L.Ed.2d 735 (1996). In short, Congress and the courts had already prohibited discrimination, and sharply constrained government use of race and gender preferences, long before Proposition 209 was enacted on November 5, 1996. The parties do not dispute, however, that the people of California meant to do something more than simply restate existing law when they adopted Proposition 209. It is this “something more” that is the focus of this action. To be sure, the outer boundaries of this “something more” have yet to be determined. It is clear, however, that the primary change Proposition 209 makes to existing law is to close that narrow but significant window that permits the governmental race- and gender-conscious affirmative action programs described above that are still permissible under the United States Constitution. Notably, defendants agreed at oral argument that Proposition 209 prohibits at least some of these constitutionally permissible programs. They also failed to identify any other programs that would be affected by Proposition 209. It is thus essential to keep in mind that plaintiffs’ constitutional challenge to Proposition 209 is not, in fact, a facial challenge to the entire initiative. Rather, it is much narrower in scope: it is a challenge only to that slice of the initiative that now prohibits governmental entities at every level from taking voluntary action to remediate past and present discrimination through the use of constitutionally permissible race- and gender-conscious affirmative action programs. Plaintiffs assert that this specific aspect of Proposition 209 violates the United States Constitution on two separate grounds. First, they allege that Proposition 209, although couched in neutral terms, violates the Fourteenth Amendment’s equal protection guarantee of “the right to full participation in the political life of the community.” Washington v. Seattle School Dist. No. 1, 458 U.S. 457, 467, 102 S.Ct. 3187, 3193, 73 L.Ed.2d 896 (1982); see also Romer v. Evans, — U.S. -,-, 116 S.Ct. 1620, 1628, 134 L.Ed.2d 855 (1996) (“Central ... to our own Constitution’s guarantee of equal protection is the principle that government in each of its parts remain open on impartial terms to all who seek its assistance.”). Proposition 209 violates this guarantee, they argue, because it restructures the political process in a non-neutral manner. Specifically, it erects unique political hurdles only for those seeking legislation intended to benefit women and minorities — who must now obtain a constitutional amendment — while allowing those seeking preferential legislation on any other ground unimpeded access to the political process at all levels. Second, plaintiffs allege that Proposition 209 violates the Supremacy Clause of the United States Constitution because it interferes with Congress’ intent that employers be afforded the option of utilizing constitutionally permissible race- and gender-conscious affirmative action to comply with their obligations under Titles VI and VII of the Civil Rights Act of 1964, and Title IX of the Education Amendments of 1972. The immediate issue before the Court is whether plaintiffs have satisfied their burden of demonstrating that defendants should be preliminarily enjoined from enforcing or implementing Proposition 209 pending a final determination of the merits of this action. In weighing this matter, the Court is mindful that any challenge to a duly-enacted law should be met with caution and restraint. It is not for this or any other court to lightly upset the expectations of the voters. At the same time, our system of democracy teaches that the will of the people, important as it is, does not reign absolute but must be kept in harmony with our Constitution. Thus, the issue is not whether one judge can thwart the will of the people; rather, the issue is whether the challenged enactment complies with our Constitution and Bill of Rights. Without a doubt, federal courts have no duty more important than to protect the rights and liberties of all Americans by considering and ruling on such issues, no matter how contentious or controversial they may be. This duty is certainly undiminished where the law under consideration comes directly from the ballot box and without the benefit of the legislative process. As the Supreme Court aptly noted in another socially-charged case: Nor does the implementation of ... change through popular referendum immunize it [from constitutional scrutiny]. The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed. Hunter v. Erickson, 393 U.S. 385, 392, 89 S.Ct. 557, 561, 21 L.Ed.2d 616 (1969). It also cannot be overemphasized that this case does not call upon this Court to adjudicate whether affirmative action is right or wrong, or whether it is no longer an appropriate policy for addressing the continuing effects of past and present discrimination against racial minorities and women. Such questions, while they are most certainly of vital public policy interest, lie beyond the purview of this Court. Nor does this case implicate the ability of governmental entities to voluntarily repeal affirmative action policies, as the Regents of the University of California did earlier this year. Rather, the substantive issues raised by this action are considerably more narrow, albeit no less important: whether the particular method chosen by Proposition 209 to curtail affirmative action is unlawful because it either (1) violates the rights of women and minorities to fully participate in our political system or (2) interferes with Congressional goals embodied in Titles VI and VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. In the discussion that follows, this Court first addresses the question of whether plaintiffs have standing to bring this action. The Court then turns to the appropriate standard governing plaintiffs’ motion for a preliminary injunction, which is followed by this Court’s Findings of Fact and Conclusions of Law, with respect to that motion, as required by Fed.R.Civ.P. 65. Based on these Findings and Conclusions, this Court rules that: (1) Plaintiffs have standing to bring this action. (2) Plaintiffs have demonstrated a probability of success on their claim that Proposition 209 violates the Fourteenth Amendment’s equal protection guarantee to full participation in the political life of the community. (3) Plaintiffs have failed to demonstrate a likelihood of success on their claim that Proposition 209 violates the Supremacy Clause because it conflicts with, and is thus preempted by, Title VI of the 1964 CM Rights Act and Title IX of the Education Amendments of 1972. (4) Plaintiffs have demonstrated a likelihood of success on their claim that Proposition 209 violates the Supremacy Clause because it conflicts with, and is thus preempted by, Title VII of the 1964 Civil Rights Act. (5) Plaintiffs have demonstrated that a preliminary injunction is necessary to protect the plaintiff class from the possibility of irreparable injury. Accordingly, the Court grants plaintiffs’ Motion for Preliminary Injunction, and enjoins defendants, pursuant to the injunction following these Findings and Conclusions, from enforcing and implementing Proposition 209 pending trial or final judgment in this action. II. STANDING A “threshold question in every federal case [is] whether the plaintiff has stated a ‘case or controversy’ between himself and the defendant within the meaning of Article III.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). The core component of whether a case or controversy under Article III exists is the doctrine of standing. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). The Supreme Court has established three elements necessary to meet the Article III standing requirement. First, the plaintiff must have suffered an “injury in fact”— “[t]he plaintiff must show that he ‘has sustained or is immediately in danger of sustaining some direct injury’ ... and the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” City of Los Angeles v. Lyons, 461 U.S. 95, 101-102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983). Second, the injury must be a result of the challenged conduct. See, e.g. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992) (“The injury has to be ‘fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court.’ ”). Finally, a plaintiff must show a likelihood that a favorable decision will redress the injury. Id. Here, defendants assert that none of the plaintiffs shows an imminent threatened injury. Notwithstanding the limitations imposed by article 3, section 3.5 of the California Constitution, however, Proposition 209 is a self-executing amendment to the California Constitution that imposes an affirmative duty to comply. “In this circumstance compliance is coerced by the threat of enforcement, and the controversy is both immediate and real.” Lake Carriers’ Association v. MacMullan, 406 U.S. 498, 508, 92 S.Ct. 1749, 1756, 32 L.Ed.2d 257 (1972). Plaintiffs have shown a real and immediate threat of injury. Proposition 209 is clearly applicable to statutes and programs that are currently benefitting the named plaintiffs and it is virtually certain to be enforced. The amendment was recently enacted and is not a statute that has lain dormant for years and likely to remain moribund. See Poe v. Ullman, 367 U.S. 497, 501, 81 S.Ct. 1752, 1754-1755, 6 L.Ed.2d 989 (1961). Further, the Governor has already made moves to employ article 1, section 31, to invalidate certain state statutes in a pending civil action. Wilson v. State Personnel Board, 96-CS01082 (App. to File Mot. to Amend, Nov., 6 1996). Moreover, a conflict between the plaintiffs’ interests and the challenged amendment is inevitable. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 297-305, 99 S.Ct. 2301, 2308-2312, 60 L.Ed.2d 895 (1979) (“One does not have to await the consummation of threatened injury to obtain preventive relief. If the injury is certainly impending, that is enough.”); cf. Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215-1216, 39 L.Ed.2d 505 (1974) (a plaintiff need not first expose himself to actual arrest or prosecution before challenging the constitutionality of a criminal statute). The constitutional injury asserted by the plaintiffs is directly connected to the actions of the defendants. See S. v. D., 410 U.S. 614, 618, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973) (quoting Massachusetts v. Mellon, 262 U.S. 447, 488, 43 S.Ct. 597, 601, 67 L.Ed. 1078 (1923)) (“The party who invokes judicial power must be able to show that he has sustained or is immediately in danger of sustaining some direct injury as a result of a statute’s enforcement.”). Two of the defendants, and now class representatives, the California Governor and Attorney General, are explicitly charged with the task of enforcing the laws of the state. The other defendants are governmental entities that are under a duty to apply the amendment to existing statutes, ordinances, and regulations. Plaintiffs have shown that they will suffer the alleged constitutional injury when any one of the defendants enforces the constitutional amendment. Finally, since the constitutional injury to the plaintiffs is allegedly caused by the enforcement of Proposition 209, plaintiffs’ requested remedy, a declaration that the Proposition is unconstitutional and unenforceable, would unquestionably address the plaintiffs’ alleged injuries. See Allen v. Wright, 468 U.S. 737, 753, n. 19, 104 S.Ct. 3315, 3325, n. 19, 82 L.Ed.2d 556 (1984) (the redressability requirement “examines the causal connection between the alleged injury and the judicial relief requested”). By demonstrating imminent injury attributable to the actions of the defendants that will be redressed by a favorable decision by this Court, plaintiffs have met the requirements for standing under the Article III “case or controversy” clause. III. PRELIMINARY INJUNCTION STANDARD According to Ninth Circuit precedent, in order to obtain a preliminary injunction, the moving party must demonstrate either (1) a combination of probable success on the merits and the possibility of irreparable injury, or (2) that serious questions are raised and the balance of hardships tips sharply in favor of the movant. Associated General Contractors, 950 F.2d at 1410. These formulations are not different tests but rather two points on a sliding scale in which the degree of irreparable harm increases as the probability of success on the merits decreases. Id. In considering a request for a preliminary injunction, a court must remain mindful that such relief is aimed primarily at preserving the status quo pending trial. See Los Angeles Mem. Coliseum Comm’n v. National Football League, 634 F.2d 1197, 1200 (9th Cir.1980) (“fundamental principle” governing preliminary injunctive relief is the need to maintain the status quo prior to determination on the merits). Under either formulation of the test, a court, in balancing the harms, must also take into account any public interests implicated by the injunctive relief sought. Caribbean Marine Services Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir.1988). Because the plaintiffs here allege that they suffer constitutional injury at the hands of Proposition 209, the Court must evaluate the merits of their constitutional claims before it can meaningfully address the irreparability and imminence of any harm. See Bery v. City of New York, 906 F.Supp. 163, 166 (S.D.N.Y.1995) (where constitutional injury is alleged, “the two prongs of the threshold showing required for injunctive relief merge into one”), rev’d on other grounds, 97 F.3d 689 (2d Cir.1996). IV. FINDINGS OF FACT The following Findings of Fact are based on the preliminary record presently before the Court. A. Characterization of Proposition 209 After qualifying as an initiative constitutional amendment, Proposition 209 was placed on the California general election ballot for November 5,1996. Prior to the election, each registered voter received an official California Ballot Pamphlet prepared by the non-partisan California Legislative Analyst’s Office (“LAO”). This Pamphlet, which provided an official description and analysis of each statewide initiative, portrayed Proposition 209 as a measure that would eliminate race- and gender-conscious affirmative action programs in the public sector. Accordingly, the California Ballot Pamphlet explained to voters that: A YES vote on [Proposition 209] means: The elimination of those affirmative action programs for women and minorities run by the state or local governments in the areas of public employment, contracting, and education that give “preferential treatment” on the basis of sex, race, color, ethnicity, or national origin. A NO vote on this measure means State and local government affirmative action programs would remain in effect to the extent they are permitted under the United States Constitution. Pis. Exh. 2 (emphasis in original). In addition to this brief summary, the Ballot Pamphlet also provided voters with a more extensive analysis of Proposition 209, which underscored that the initiative would effectively eliminate race- and gender-conscious affirmative action programs. Specifically, the LAO explained Proposition 209 and its effects as follows: [F]ederal, state, and local governments run many programs intended to increase opportunities for various groups — including women and racial and ethnic minority groups. These programs are commonly called “affirmative action” programs.... If [Proposition 209] is approved by the voters, it could affect [the following programs] .... Public Employment and Contracting The measure would eliminate affirmative action programs used to increase hiring and promotion opportunities for state or local government jobs, where sex, race, or ethnicity are preferential factors in hiring, promotions, training or recruitment decisions. In addition, the measure would eliminate programs that give preference to women-owned or minority-owned companies on public contracts.... Public Schools and Community Colleges [T]he measure could eliminate, or cause fundamental changes to, voluntary desegregation programs run by school dis-tríete.... Examples of desegregation spending that could be affected by the measure include the special funding given to (1) “magnet” schools (in those eases where race or ethnicity are preferential factors in the admission of students to the schools), and (2) designated “racially isolated minority schools” that are located in areas with high proportions of racial or ethnic minorities.... In addition, the measure would affect a variety of public school and community college programs such as counseling, tutoring, outreach, student financial aid, and financial aid to selected school districts in those cases where the programs provide preferences to individuals or schools based on race, sex, ethnicity, or national origin.... University of California and California State University The measure would affect admissions and other programs at the state’s public universities. For example, the California State University (“CSU”) uses race and ethnicity as factors in some of its admissions decisions. If this initiative is passed by the voters, it could no longer do so.... Id. (emphasis in original). As the above reflects, the only programs identified by the LAO as potentially affected by Proposition 209 are race- and gender-conscious affirmative action programs. The California Ballot Pamphlet also included partisan arguments submitted by proponents and opponents of the initiative. These arguments further established that the issue at stake in Proposition 209 was the continuation of public sector race- and gender-conscious affirmative action programs. The Argument In Favor Statement begins by instantly focusing the reader on the issue of affirmative action: A generation ago, we did it right. We passed civil rights laws to prohibit discrimination. But special interests hijacked the civil rights movement. Instead of equality, governments imposed quotas, preferences, and set-asides. Pis. Exh. 3. The next paragraph quotes the facially-neutral language of the initiative but then immediately returns to the issue of affirmative action, with a particular emphasis on race-conscious affirmative action: “REVERSE DISCRIMINATION” BASED ON RACE OR GENDER IS PLAIN WRONG!.... [Students are being rejected from public universities because of their RACE. Job applicants are turned away because their RACE does not meet some “goal” or “timetable.” Contracts are awarded to high bidders because they are of the preferred RACE ... Proposition 209 will stop [these] terrible programs.... Id. (emphasis in original). The Argument Against Statement also focused attention on Proposition 209’s impact on affirmative action programs beneficial to women and minorities. The argument warns that: Proposition 209 will eliminate affirmative action programs ... that help achieve equal opportunity for women and minorities .... and concludes by stating that Proposition 209: poses as an equal opportunities initiative, but ... [it] puts at risk every outreach program, sets back the gains made by women and puts' the brakes on expanding opportunities for people in need. Id. (quoting General Colin Powell). B. Election Results and Response by Defendants On November 5, 1996, the voters of California enacted Proposition 209 into law, with 4,736,180 votes (54%) cast in favor of the initiative and 3,986,196 votes (46%) cast in opposition. Because the initiative is by its terms self-executing, public entities around the State faced the immediate question of implementation. Three of the defendants in this action responded by quickly acting to implement and enforce Proposition 209. On November 6, 1996, Governor Wilson issued an Executive Order (W-136-96) requiring state agencies to promulgate implementing regulations and identify all state statutes and programs pertaining to employment, education or contracting that grant or encourage preferences based on race, sex, color, ethnicity or national origin. That same day, Attorney General Lungren instructed state agencies to comply immediately with Proposition 209 to the extent permitted by California law. The University of California also promptly took steps to implement Proposition 209. See Dee. 6, 1996 Order at 2. Other defendants expressed uncertainty and confusion regarding the appropriate response to the initiative. See Response of Defendant City of Pasadena to Plaintiffs’ Request for Temporary Restraining Order at 2 (“[C]om-plex questions now exist about how to reconcile the competing and seemingly conflicting requirements of federal, state and local affirmative action policies. These are issues which this City cannot resolve on its own.”). C. Effect of Proposition 209 on Affirmative Action Programs Any California public entity that implements Proposition 209 is required to end voluntary race- and gender-conscious affirmative action programs in three areas: contracting, employment, and education. We thus briefly review each of these areas in turn. 1. Contracting Race- and gender-conscious affirmative action programs in California in the area of public contracting have taken various forms, from requiring that prime contractors make good-faith efforts to utilize women- or minority-owned subcontractors to providing an advantage in evaluating bids. These programs are- designed to address the continuing effects of past or present bias against the use of women- and minority-owned contractors on public sector projects. According to the evidence before the Court, their effect has been to provide such .contractors with substantial opportunities not previously available. The experience of Antonio Ruiz provides one such example. Mr. Ruiz owns Ruiz Construction Company & Associates which engages in general engineering and construction work. Amended Ruiz Deel. filed in support of amicus ¶ 2. It is Mr. Ruiz’ experience that “contractors accept the bids of those contractors with whom they have established ties.” Id. ¶ 8. In 1985, Ruiz qualified to participate in the city of San Francisco’s voluntary affirmative action program, which was adopted to remedy past discriminatory practices by the city in its letting of contracts. Prior to this time, Ruiz was unable to “get many large contractors to even accept [his] bids for subcontract work,” and he in fact had obtained “only one contracting job with the City.” ¶¶ 7-8. By participating in the City’s affirmative action program, he was able to break through the old patterns of doing business and obtain subcontracts. ¶¶ 10-11. The exposure he gained led to additional business with prime contractors, and allowed him to build his business substantially and “form joint ventures to bid as a prime contractor on City contracts.” ¶¶ 12-14. See also Fung Decl. ¶ 4 (affirmative action in public contracting has reduced discrimination against Asian American contractors and made it possible for them to bid competitively for public contracts); Wu Deel. at 144-145 (affirmative action in public contracting has substantially benefitted Asian Americans); Burns Decl. ¶4 (women-owned painting and wallpapering company benefit-ted substantially from San Francisco affirmative action contracting program); Chavez Deel. ¶¶ 3-4 (describing how affirmative action in public contracting programs allowed him to break through the “old boy network” and obtain public contracts); Larson Decl. ¶ 16 (disparities between the availability of women- and minority-owned contractors and their use by public agencies “are noticeably reduced where government agencies implement affirmative action policies”), ¶ 20 (after Los Angeles adopted affirmative action programs, percentage of women businesses obtaining city contracts increased from 0.3% to 8% and percentage of minority businesses obtaining city contracts increased from 2% to 11.8%). The record further demonstrates that implementation of Proposition 209 would substantially reduce opportunities in public contracting for women and minorities. Larson Decl. ¶ 17 (discussing studies showing that race or gender neutral programs designed to address underutilization of minority and women contractors were generally ineffective), ¶ 21; Chavez Decl. ¶ 5 (estimating that absent affirmative action program “his firm would lose up to 50 to 75% of’ its public contracting work); Leonard Decl. ¶ 15 (discussing a study finding “not only a stagnation but a reversal of advances” for African-Americans under “weak” affirmative action programs). 2. Employment Race- and gender-conscious affirmative action programs in California in the area of public employment generally allow an employer to consider the ethnicity or gender of an otherwise qualified applicant as one of many factors. Some programs may also utilize hiring goals. Such programs are typically designed to address the continuing effects of past or present bias against the hiring and/or promotion of women and minority employees. According to the evidence before the Court, their effect has been to provide such employees with substantial opportunities not previously available. The use of voluntary affirmative action in California’s civil service provides one such example. In 1971, then-Governor Ronald Reagan issued an Executive Order establishing voluntary affirmative action in the California civil service. Bielby Decl. ¶ 4. Subsequently, state agencies and departments began using hiring goals and timetables in an effort to correct the existing underutilization of women and minorities. As a consequence, the “index of gender and race segregation in state agencies” declined by 11 and 16 percent respectively between 1979 and 1986. ¶5. See also Newmann Decl. ¶7 (period from 1979-85 showed substantial statistical increases in the rate of female representation in the California “civil service and an even greater increase in nonwhite representation”); Badget Decl. ¶6 (“After state and federal governments began to require that state and local employers execute affirmative action plans in the early 1970s, the representation of Latino and black women increased dramatically as did access to managerial and professional jobs for all women of color.”); Grillo Decl. ¶¶ 1-4 (affirmative action guidelines have been “very important” in enabling women and minorities to gain civil service positions in California). The record also indicates that implementation of Proposition 209 would substantially reduce opportunities for women and minorities in public employment. 3. Education Race- and gender-conscious affirmative action programs in California in the area of public education range from voluntary desegregation and “magnet school” programs at the elementary school level to financial aid and admissions programs at the college and graduate school level. The evidence before the Court demonstrates that, overall, these programs have benefited minorities and women. The University of California provides one example. Where the number of eligible applicants exceeds the spaces available, the University of California campuses select between 40 and 60% of students based upon their grades, test scores and course work. The remaining selections- are made using a combination of criteria including California residence, physical and learning disabilities, educational disadvantage, family income, ethnicity, leadership ability, public service, special athletic, artistic or musical ability, composition of a student’s family (whether student comes from a single- or two-parent family) and a student’s family’s college history (whether student is first-generation college bound). Under this system of admissions, the racial composition of the total University of California freshman class for the Fall of 1994 was as follows: number percentage American Indian 214 .96 African American 968 4.35 Latino 3,313 14.87 Filipino 949 4.26 Asian 7,191 32.28 White/other 9,643 43.28 total: 22,278 100.00 Conrad Decl. ¶ 15. The record indicates that, without the present race- and gender-conscious affirmative action efforts, the number of African American enrollments “could be reduced across the system by as much ás 40 to 50 percent while Chicano/Latino enrollments could be reduced by 5 to 15 percent.... American Indian enrollments could be reduced by 40 to 50 percent. Filipino enrollments could increase by 5 percent or decline by 5 percent.” Pis. Exh. 7 at i. On the other hand, Asian American enrollments would increase by 15 to 25 percent. White enrollments would likely remain roughly the same. Id. The above estimates may well understate the actual decreases that would occur over time. As acceptance rates fall for African American, Latino and American Indian students, the applicant pool from these groups may fall as well, since high school students consider the probability of admission when deciding where to apply for college. The record also suggests that, absent race- and gender-conscious admission programs, the admissions of African American, Latino, and American Indian students at California’s public medical schools will significantly decrease. This in turn is likely to have a negative effect on the delivery of health care services in those communities. “On average, black physicians care for nearly six times as many black patients and Hispanic physicians care for nearly three times as many Hispanic patients as other physicians.” Conrad Deck ¶ 37; Drake Deck ¶ 5. D. Impact of Proposition 209 on the Political Process Prior to the passage of Proposition 209, anyone seeking to petition his or her government representatives to adopt, amend, or retain race- or gender-conscious affirmative action programs faced the same burdens as those faced by any constituent seeking preferential treatment for any group in the area of contracting, employment or education. Typically, this burden involves directly petitioning and lobbying the specific representatives or policymakers with authority to adopt such programs. Such programs can generally be approved by simple majority vote or by executive decision. See e.g. Hernandez Deck ¶ 5 (describing constituents’ successful effort to convince city of San Francisco to adopt affirmative action program to remedy discriminatory practices in city contracting). In other cases, a local initiative process may be required. After the passage of Proposition 209, women and minorities who wish to petition then-government for race- or gender-conscious remedial programs face a considerably more daunting burden. Before such persons can approach their school district, city council, county government, or any other subdivision of government with such a proposal, they must first obtain an amendment to the California Constitution that would either (a) repeal Proposition 209, or (b) permit the specific government entity at issue to adopt a particular race- or gender-conscious affirmative action program. The California Constitution can be amended through either an initiative constitutional amendment or a legislative constitutional amendment. Either method places a heavy burden on those seeking to advocate the use of constitutionally-permissible affirmative action programs in their local communities. Under the first method — an initiative constitutional amendment — sponsors must first obtain signatures supporting the initiative equal to 8% of the previous gubernatorial vote. In 1996, this required the collection of 693,230 valid signatures. Cain Deck ¶4. Since many signatures are disqualified, in order to ensure the requisite number of valid signatures, approximately 50% more “raw” signatures must be collected. Zimmerman Deck ¶ 8. Because these signatures must be collected within a 150-day time limit, a campaign must typically collect up to 7,000 signatures during each of the 150 days. Id. ¶ 9. Given these requirements, and the size of California, hiring paid signature gatherers is a virtual necessity. The cost of obtaining signatures runs from $0.70 to $1.50 per signature. Id. ¶ 10. Thus, even where volunteers gather some portion of the required signatures, the cost of securing sufficient signatures, and minimally staffing a. few offices, can run from $500,000 to $1.5 million. Id. ¶ 11; Cain Deck ¶ 6. Once the initiative has qualified, it must gain majority approval by the voters. Under the second method — legislative constitutional amendment — sponsors must secure a two-thirds vote of approval by both the California Senate and Assembly. A majority of the voters must then approve the amendment at the next statewide election. In either ease, substantial funds are required to organize and fund the statewide campaign that follows the initiative qualification procedure or requisite legislative approval. Again, the size of California makes this endeavor particularly expensive. To reach at least 10 million voters directly, a campaign would have to talk to 1,000 voters each day for 30 years. Zimmerman Decl. ¶ 12. Campaigns must thus generally reach voters through television, radio, print advertising, and direct mail. According to the California Commission on Campaign Financing, $109 million was spent on statewide initiatives on the 1990 ballot. Cain Decl. ¶6. The campaign in support of Proposition 209 had spent $3.1 million by October 1996. Cain Decl. ¶ 6. As a result of the new political-process hurdles erected by Proposition 209, members of the plaintiff class are effectively precluded from petitioning local and state policymakers and representatives to adopt, maintain, or expand race- or gender-conscious affirmative action programs. For example, the Coalition for Economic Equity (Coalition), a named plaintiff in this action, has proposed fifteen amendments to the City of San Francisco’s affirmative action policy. Members of the Coalition have met with City Supervisors in preparation for a vote on the proposed legislation by the entire San Francisco Board of Supervisors. The Coalition is now precluded from further pursuing this legislation through the normal political channels that were available prior to the adoption of Proposition 209. V. CONCLUSIONS OF LAW A. Likelihood of Success on Plaintiffs’ Equal Protection Claim “The Equal Protection Clause of the 14th Amendment guarantees racial minorities the right to full participation in the political life of the community.” Seattle, 458 U.S. at 467, 102 S.Ct. at 3193. This guarantee applies with equal force to women. United States v. Virginia, — U.S. at -, 116 S.Ct. at 2275. The Equal Protection Clause not only prohibits the outright exclusion of women and minorities from the political process, but also prohibits more subtle distortions of the political process. Seattle, 458 U.S. at 467, 102 S.Ct. at 3193. In the words of the Supreme Court, “the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote.” Id. at 476, 102 S.Ct. at 3198 (quoting Hunter, 393 U.S. at 393, 89 S.Ct. at 561-562). Plaintiffs argue that Proposition 209, despite its facial neutrality, violates the Equal Protection Clause because it restructures the political process to disadvantage only those seeking to enact legislation intended to benefit minorities and women. Relying on the Supreme Court opinions in Seattle and Hunter, plaintiffs emphasize that prior to the enactment of Proposition 209, supporters of race- and gender-conscious affirmative action programs were able to petition their state and local officials directly for such programs. After the passage of Proposition 209, however, these same advocates face the considerably more daunting task of mounting a statewide campaign to amend the California Constitution. At the same time, those seeking preferences based on any ground other than race or gender, such as age, disability, or veteran status, continue to enjoy access to the political process at all levels of government. Plaintiffs thus maintain that Proposition 209 denies them the equal protection of the laws by removing the authority to redress racial and gender problems — and only those problems — to a new and remote level of government, thereby singling out the interests of minorities and women for a special political burden. For the reasons noted earlier, the Court in testing Proposition 209 against the Equal Protection Clause focuses on a relatively narrow question: does Proposition 209’s prohibition of constitutionally-permissible race- and gender-conscious affirmative action violate plaintiffs’ right to equal protection of the laws? 1. Does the Seattle-Hunter Doctrine Apply? Plaintiffs rely primarily on two Supreme Court cases, Hunter and Seattle, to support their equal protection claim. “These cases yield a simple but central prin-ciple_ [T]he political majority may generally restructure the political process to place obstacles in the path of everyone seeking to secure the benefits of governmental action. [But] the State [may not] allocate governmental power nonneutrally by explicitly using the racial nature of a decision to determine the decisionmaking process.” Id. at 470,102 S.Ct. at 3195. In Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969), the Supreme Court addressed the efforts of citizens of Akron, Ohio, to overturn duly-enacted legislation prohibiting racial discrimination in housing. After the city council adopted a fair housing law, the citizens by referendum amended the city charter to require that fair housing ordinances be put to a citywide vote before they could take effect. This requirement, set out in § 137 of the charter, not only affected future fair housing efforts, but also reached back to suspend the previously-enacted ordinance. See id. at 387, 89 S.Ct. at 558-559. The Supreme Court found that § 137 singled out local legislation of special interest to minorities for a unique political burden; while those seeking to enact ordinances regulating real estate on any basis other than race merely had to persuade the Akron City Council, “for those who sought protection against racial bias, the approval of the City Council was not enough.” Id. at 390, 89 S.Ct. at 560. The Supreme Court ultimately concluded that Akron’s restructuring of the political process violated the 14th Amendment. The Supreme Court’s analysis of § 137 turned on two particular features of the measure. First, § 137 raised equal protection concerns because it singled out an issue of particular interest to racial minorities — racial discrimination in housing. Had the measure imposed a new political burden on all legislation, the Supreme Court was quick to point out, it would not have run afoul of the 14th Amendment. Id. at 393-95, 89 S.Ct. at 561-563 (Harlan, J., concurring). Second, § 137 was suspect because it imposed a novel political burden on all future efforts to enact fair housing legislation. Had the citizens of Akron used the referendum process simply to repeal the fair housing ordinance previously adopted by the Akron City Council, this action alone would have raised no equal protection difficulty. Id. at 390 n. 5, 89 S.Ct. at 560 n. 5; see also Crawford, 458 U.S. at 539, 102 S.Ct. at 3218-19. Although neither of these two features of § 137, standing alone, would have offended the 14th Amendment, the Supreme Court held that the confluence of the two factors — the targeting of a racial issue and the reordering of the political process— constituted a racial classification that required the most exacting judicial scrutiny. In Washington v. Seattle School District No. 1, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982), the Supreme Court reaffirmed its ruling in Hunter, applying the rationale of that case to a statewide initiative designed to prohibit the mandatory busing of students to achieve racial integration in schools. After a Seattle school district took steps to establish a mandatory busing plan, the voters of Washington passed Initiative 350, which provided that “no school board ... shall directly or indirectly require any student to attend a school other than the school which is geographically nearest or next nearest the student’s place of residence.” Id. at 462, 102 S.Ct. at 3190-3191. Three school districts that had previously initiated busing efforts challenged the initiative in court, and these challenges ultimately presented the Supreme Court with an “extraordinary question: whether an elected school board may use the Fourteenth Amendment to defend its program of busing for integration from attack by the State.” Id. at 459, 102 S.Ct. at 3189 (emphasis in original). Despite its facially neutral language, the Supreme Court found that Initiative 350 in reality barred only busing plans aimed at achieving racial integration while permitting busing for other purposes. In striking down the initiative, the Court found that it, like the enactment in Hunter, singled out an issue of concern to minorities — racial busing — and imposed special political burdens on those who supported the issue. These features of Initiative 350 led the Court to find that the facially-neutral measure was, in reality, a racial classification subject to the most searching judicial scrutiny. Id. at 485, 102 S.Ct. at 3202-3203. In the words of the Court, “It is beyond dispute ... that the initiative was enacted ‘because of,’ not merely ‘in spite of,’ its adverse effects upon busing for integration.” Id. at 471, 102 S.Ct. at 3195. As in Hunter, the Supreme Court concluded that, viewed in this light, Initiative 350 violated the 14th Amendment. Before the Court applies these precedents to the case at bar, it notes that Proposition 209 shares several characteristics with the measures struck down in Hunter and Seattle. All three initiatives are facially neutral. All three grew from controversial efforts aimed at rolling back legislative gains that were intended as remedies for historical discrimination suffered by particular groups. Perhaps most importantly, in the wake of all three measures, those seeking to reenact such remedies could no longer use the same political mechanisms that had been available prior to the passage of the enactments. As plaintiffs themselves concede, however, one difference between Seattle and Hunter and the matter at bar is readily apparent: Seattle and Hunter exclusively address racial issues, whereas Proposition 209 addresses both race and gender preferences. Defendants urge this Court not to import the Supreme Court’s Seattle and Hunter reasoning into the context of gender. The Supreme Court “has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship status.” United States v. Virginia, — U.S. at -, 116 S.Ct. at 2275. Because “our Nation has had a long and unfortunate history of sex discrimination,” equal protection jurisprudence requires that gender classifications must survive heightenéd judicial scrutiny. J.E.B. v. Alabama ex rel T.B., 511 U.S. 127, -, 114 S.Ct. 1419, 1425, 128 L.Ed.2d 89 (1994) (quoting Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583 (1973)). Gender and racial classifications, however, do not receive identical treatment under the Equal Protection Clause; to date, the Supreme Court has reserved strict scrutiny for racial classifications. United States v. Virginia, — U.S. at - n. 6, 116 S.Ct. at 2275 n. 6. Gender classifications, meanwhile, are subject to less stringent intermediate scrutiny review. Id. at -, 116 S.Ct. at 2274. The differing levels of judicial scrutiny accorded race and gender classifications, however, do not render the reasoning of Seattle and Hunter inappropriate in the context of gender. On the contrary, the doctrinal approach of those cases is wholly consonant with the heightened scrutiny applicable to gender classifications. When a measure is challenged under the Equal Protection Clause, a court is required, as a threshold matter, to determine whether the challenged measure contains a race or gender classification. See Adarand Constructors, Inc. v. Pena, — U.S. -, -, 115 S.Ct. 2097, 2105, 132 L.Ed.2d 158 (1995) (noting that presence of a. race classification made the Arlington Heights intent analysis unnecessary); Personnel Adm’r. of Mass. v. Feeney, 442 U.S. 256, 273-74, 99 S.Ct. 2282, 2293-2294, 60 L.Ed.2d 870 (1979) (noting different equal protection analysis when no explicit gender classification is present). It is this threshold question that the Seattle-Hunter analysis is meant to answer. Only after concluding that a racial classification was involved did the Supreme Court in Seattle and Hunter proceed to subject the challenged enactments to strict Scrutiny. Seattle, 458 U.S. at 485, 102 S.Ct. at 3202-3203; Hunter, 393 U.S. at 391-92, 89 S.Ct. at 560-561. In the gender context, similarly, a court should first apply the Seattle-Hunter analysis to determine whether a gender classification exists, and then apply the appropriate intermediate equal protection scrutiny. It is precisely by applying the Seattle-Hunter doctrine in cases involving gender that a court fulfills its obligation to scrutinize gender classifications carefully. Irrespective of the applicability of the rationale of Seattle and Hunter to gender, defendants maintain that the present case is not controlled by these precedents. Simply put, the defendants insist that because this case is different in kind from Seattle and Hunter, the Seattle-Hunter doctrine is wholly irrelevant. First, defendants argue that Proposition 209, unlike the Washington and Akron initiatives, expressly prohibits classifications based on race and gender, and thus cannot be read to create such classifications. Defendants essentially ask this Court to read the plain language of Proposition 209, which con-eededly contains no classification on its face, and go no further. While it would certainly streamline the inquiry, this approach is expressly disapproved in Hunter and Seattle. Despite the facial neutrality of the challenged enactments in both of those cases, the Supreme Court looked beyond the plain language of the measure in question and inquired whether, “in reality, the burden imposed by [the] arrangement necessarily falls on the minority.” Seattle, 458 U.S. at 468, 102 S.Ct. at 3194 (emphasis added, internal quotations omitted); see also Hunter, 393 U.S. at 391, 89 S.Ct. at 560-561. Defendants’ argument, moreover, asks this Court to overlook the central purpose of the Seattle-Hunter doctrine: to determine whether facially neutral enactments in reality rest on “distinctions based on race” or gender. Seattle, 458 U.S. at 485, 102 S.Ct. at 3202-3203. Defendants cannot use Proposition 209’s facial neutrality as a shield against the application of the Seattle-Hunter analysis; it is precisely the measure’s facial neutrality that makes application of those cases appropriate. Compare id. (applying Hunter to find that a facially neutral measure operated as a racial classification) with Crawford, 458 U.S. at 539, 102 S.Ct. at 3218-3219 (applying the Hunter analysis to find that a facially neutral measure did not embody a racial classification). Defendants have simply mistaken the starting point of the equal protection analysis with its ending point. Defendants next attempt to distinguish the Seattle and Hunter cases by shifting the focus of the inquiry from the initiatives themselves to the legislative efforts they effectively bar. From this standpoint, the defendants make two arguments that are variations on a single theme to distinguish Seattle and Hunter from the case at hand. In the first argument, defendants contend that neither the mandatory busing programs barred by Initiative 350 nor the fair housing legislation barred by Akron’s § 137 placed a burden upon the equal protection rights of nonminorities. Defendants insist that Proposition 209, in contrast, would outlaw preferences that by their very nature inflict injury on nonminorities. See Adarand, — U.S. at -, 115 S.Ct. at 2114 (“[W]henever the government treats any person unequally because of his or her race, that person has suffered an injury....”); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 280-83, 106 S.Ct. 1842, 1850-52, 90 L.Ed.2d 260 (1986) (opinion of Powell, J.) (discussing the burden placed on nonminorities by affirmative action programs aimed at remedying past discrimination). On this theory, Proposition 209 is distinguishable from the initiatives in Seattle and Hunter because it only interferes with “zero-sum” antidiscrimination efforts — those that help minorities, but do so at the expense of nonminorities. The second argument focuses on the judicial scrutiny that attends the efforts banned by the challenged initiatives. According to defendants, the affirmative action efforts prohibited by Proposition 209 are, under existing 14th Amendment principles, themselves constitutionally suspect and subject to heightened scrutiny. See Adarand, — U.S. at -, 115 S.Ct. at 2117. The fair housing ordinance and the busing programs that were overturned by the initiatives in Seattle and Hunter, defendants argue, did not themselves trigger heightened equal protection scrutiny. Defendants’ proposed distinctions, although not implausible on their face, both fail for the same reason: nothing in Seattle or Hunter suggests that the Supreme Court holdings turned on these features of the challenged amendments. If the application of the Seattle-Hunter doctrine to Initiative 350 turned on whether or not Seattle’s mandatory busing plan could be characterized as “zero-sum,” as the defendants contend, the Supreme Court would presumably have addressed this difficult threshold issue. The opinion in Seattle, however, applied Hunter without examining whether mandatory busing presented a “zero-sum” scenario. Similarly, the Supreme Court in Seattle expressly declined to reach the question of what level of equal protection scrutiny was applicable to Seattle’s busing plan. Seattle, 458 U.S. at 472 n. 15, 102 S.Ct. at 3196. Consequently, defendants’ contention that Seattle’s holding turns on the scrutiny applicable to Seattle’s busing program is unpersuasive. Defendants’ view of Initiative 350, moreover, overlooks the raging controversy that surrounded the issue of mandatory busing in 1978 and that constituted the backdrop for the Supreme Court’s decision in Seattle. See Seattle Sch Dist. No. 1 v. Washington, 473 F.Supp. 996, 1005-10 (W.D.Wash.1979), aff'd, 633 F.2d 1338 (9th Cir.1980), aff'd, 458 U.S. 457, 102 S.Ct. 3187, 73 L.Ed.2d 896 (1982) (findings regarding the political controversy surrounding Seattle’s busing efforts). It is evident that many who supported Initiative 350 felt that Seattle’s busing plan benefited minority students at the expense of the majority. This is borne out by the fact that shortly after the implementation of the plan, four school board members who supported the plan narrowly avoided recall. Seattle, 458 U.S. at 460 n. 1, 102 S.Ct. at 3189 n. 1. As a result, defendants’ conclusion that the busing plan in Seattle did not burden majority interests is, at best, both factually and legally ambiguous. Id. at 495 n. 9, 102 S.Ct. at 3208 n. 9 (Powell, J., dissenting) (suggesting that busing aimed at desegregation might, in fact, be viewed as burdensome to iionminority students). Finally, defendants’ focus on the particular legislation barred by Initiative 350, Akron’s § 137, and Proposition 209, rather than on the initiatives themselves, suffers from a more fundamental flaw. Accepting defendants’ arguments would essentially require that this Court read Seattle and Hunter as cases about the limits on state-sponsored remedies for past discrimination. This is the inevitable conclusion that emerges from a primary focus on the legislation blocked, rather than on the blocking initiative. As this Court has pointed out, however, the instant case, as well as Seattle and Hunter, are more appropriately understood as cases about access to the political process. Because the Seattle-Hunter doctrine is designed to determine whether facially neutral enactments single out race and gender issues for unique political burdens, and thus are suspect classifications, defendants’ efforts to distinguish Seattle and Hunter must fail. If, in reality, Proposition 209 does not single out a racial or gender issue for unfavorable treatment in the political process, the initiative will emerge from the Seattle-Hunter analysis unscathed. See Crawford, 458 U.S. at 539, 102 S.Ct. at 3218-19 (simple repeal of antidis-crimination law raises no equal protection concern). If, on the other hand, Proposition 209’s facial neutrality masks a racial or gender classification, the Equal Protection Clause requires that the measure be subjected to heightened scrutiny. See Seattle, 458 U.S. at 485, 102 S.Ct. at 3202-03. It is to this inquiry that this Court now turns. 2. Application of the Seattle-Hunter Doctrine The Seattle opinion sets out the framework for analysis: if an “initiative removes the authority to address a racial problem—and only a racial problem—from the existing decisionmaking body, in such a way as to burden minority interests,” it must be examined for equal protection purposes as if it were a racial classification. Id. Keeping the earlier discussion regarding the extension of this analysis to the gender context in mind, the Court applies the Seattle test to Proposition 209. a. Racial Focus Just as the Supreme Court did in Seattle, this Court begins its analysis by asking whether Proposition 209, despite its facial neutrality, singles out an issue of special interest to minorities or women, and thus has a “racial [or gender] focus.” Id. at 474, 102 S.Ct. at 3197. In concluding that Initiative 350 had a racial focus, the Supreme Court relied in part on the perceptions of Washington voters. The Comí; found that despite Initiative 350’s neutral language, proponents of the measure assured voters that it would affect only racial busing. Id. at 471, 102 S.Ct. at 3195-96. Given the nature of the political campaign that surrounded its passage and the measure’s practical effect, the Supreme Court had no difficulty joining the District Court and Court of Appeals in concluding that Initiative 350 was “effectively drawn for racial purposes.” Id. The record likewise suggests that the campaign for Proposition 209 had a racial and gender focus. As described in the Findings of Fact, the independent LAO, as well as the supporters and opponents of Proposition 209, characterized Proposition 209 as a referendum on race- and gender-conscious affirmative action. Named defendant Governor Pete Wilson himself signed the Argument in Favor statement, which opens with the following: THE RIGHT THING TO DO! A generation ago, we did it right. We passed civil rights laws to prohibit discrimination. But special interests hijacked the civil rights movement. Instead of equality, governments imposed quotas, preferences, and set-asides. Pis. Exh. 2. Just as the voters of Washington perceived Initiative 350 as a referendum on busing, the evidence presently before the Court indicates that people of California viewed Proposition 209 as a referendum on affirmative action. The Supreme Court, in evaluating whether Initiative 350 had a racial focus, also considered the enactment’s practical effect. In Seattle, despite Initiative 350’s non-raeial language regulating student transportation, the practical effect of the measure was to prohibit only busing for racial integration, while leaving school districts free to employ busing for other purposes. Seattle, 458 U.S. at 474-75, 102 S.Ct. at 3197-98. Similarly, while Proposition 209’s general language barring discrimination merely duplicates existing state and federal law, and thus does not materially alter existing state practices, Proposition 209’s prohibition on preferences will have a practical effect on existing programs. The California Legislative Analyst, for example, concluded that Proposition 209’s ban on race and gender preferences would eliminate existing state and local race- and gender-conscious affirmative action efforts in contracting, employment, and education. Pis. Exh. 2. The defendants, moreover, despite repeated questioning by plaintiffs and the' Court, have not yet identified a single existing program, other than race- and gender-eonscious affirmative action programs, that would be affected by Proposition 209. While all parties concede that Proposition 209, at the very least, will prohibit race- and gender-conscious affirmative action efforts, it is equally plain that preferences unrelated to race and gender remain unaffected by Proposition 209. The University of California, for example, remains free after Proposition 209 to continue its practice of considering in its admissions decisions “California residence ..., physical and learning disabilities, educational .disadvantage, family income, and whether a student comes from a two-parent or single-parent family, is first-generation college bound or has special talents (for exa