Today's filing means that Proposition 209 will not go into effect while the Ninth Circuit judges consider the appeal. The injunction against Proposition 209 was issued on December 23, 1996 by U.S. District Court Judge Thelton Henderson based on the grounds that the new law is likely to be deemed unconstitutional after a full hearing on the merits.

The petition charges that the three-judge motions panel overstepped its bounds when it determined that Proposition 209 was constitutional. This panel was only supposed to rule on the government's motion to lift the injunction -- not on the ultimate constitutionality of the measure, an issue which has yet to be fully argued in court. "The importance of this case and the legal questions it resolves require an en banc reconsideration," the plaintiffs argue.

"It is difficult to imagine a case of greater public import than this one," said ACLU-NC staff attorney Ed Chen. "Millions of Californians have an immediate and enduring stake in this controversy, which affects their education, business, and employment opportunities. Moreover, this case involves a central concern of equal protection law: the access of minorities to the political process to seek remedies to past discrimination.

"All of California -- indeed the entire nation -- is watching," said Chen.

"The panel could only come to the conclusion that Proposition 209 is constitutional by turning a blind eye to Supreme Court precedents, the factual record in this case, and the reality of racism in our society today," Chen added.

Eva Paterson, Executive Director of the Lawyers Committee for Civil Rights, said that she is confident that the plaintiffs -- a coalition of women and minority business, labor and academic organizations who filed the class action challenge the day after the November election -- would prevail in overturning Proposition 209. "The struggle to rid society of racial and gender discrimination has never been an easy one. Civil rights activists have often suffered setbacks in our long struggle for justice."

Paterson was particularly critical of the panel's ruling not to have a full hearing on the facts of the case, arguing that the facts show the devastating impact of this measure. "California must realize that the elimination of affirmative action will resegregate society," said Paterson, citing examples of projections of a minuscule number of Latino and African American students at U.C. Berkeley.

"Whatever the resolution of this lawsuit," said Julian Gross of the Employment Law Center, "there is no case in recent history for which it is more important for the public to have confidence in both the substance and the process of this decision-making.

"Unfortunately, the actions and opinion of the motions panel undermine that confidence," he said.

"There is nothing neutral about Proposition 209," said Chen, responding to the panel's statement that this is a race-neutral law. "If implemented, only women and minorities will be excluded from public education, jobs and business opportunities. Only women and minorities will be barred from equal access to the political process."

While the Court of Appeals considers this motion, Proposition 209 will not be in effect. There is no time scheduled for the Court to rule on this motion.