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
[t]he 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).
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:
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.
The Ballot Pamphlet also included arguments by proponents and opponents of Proposition 209. Proponents urged a “yes” vote, arguing that:
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.
And two wrongs don’t make a right! Today, 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 áre of the preferred RACE.
That’s just plain wrong and unjust. Government should not discriminate. It must not give a job, a university admission, or a contract based on race or sex. Government must judge all people equally, without discrimination!
And, remember, Proposition 209 keeps in placе all federal and state protections against discrimination!
Opponents of Proposition 209 urged a “no” vote, responding that:
California law currently allows tutoring, mentoring, outreach, recruitment, and counseling to help ensure equal opportunity for women and minorities. Proposition 209 will eliminate affirmative action programs like these that help achieve equal opportunity for women and minorities in public employment, education and contracting. Instead of reforming affirmative action to make it fair for everyone, Proposition 209 makes the current problem worse.
*1435 The initiative’s language is so broad and misleading that it eliminates equal opportunity programs including:
—tutoring and mentoring for minority and women students;
—affirmative action that encourages the hiring and promotion of qualified women and minorities;
—outreach and recruitment programs to encourage applicants for government jobs and contracts; and
—programs designed to encourage girls to study and pursue careers in math and science.
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 thе election, November 6, 1996, several, individuals and groups (“plaintiffs”) claiming to represent the interests of racial minorities and women filed a complaint in the Northern District of California against several officials and political subdivisions of the State of California (“the State”).
With their complaint, plaintiffs filed an application for a temporary restraining order (“TRO”) and a preliminary injunction. The district court entered a TRO on November 27, 1996, and granted a preliminary injunction on December 23, 1996.
The district court provided extensive findings of fact and conclusions of law in support of the injunction. This lawsuit, the court explained, challenges Proposition 209’s prohibition against race and gender preferences, not its prohibition against discrimination. Plaintiffs’ constitutional challenge is “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.” Id. at 1489.
The elimination of such programs, the district court found, would reduce opportunities in public contracting and employment for women and minorities. It further would cause enrollment of African-American, Latino, and American Indian students in public colleges to fall, though enrollment of Asian-American students would increase. Finally, the court found that minorities and women, to reinstate race-based or gender-based preferential treatment, would have to re-amend the California Constitution by initiative.
From these findings of fact the district court concluded, first, that plaintiffs have demonstrated a likelihood of success on their equal protection claim. Proposition 209, the court reasoned, has a racial and gender focus which imposes a substantial political burden on the interests of women and minorities. The court held that Hunter v. Erickson,
The district court concluded, second, that plaintiffs have also demonstrated a likelihood of success on their pre-emption claims. Title VII, the court reasoned, preserves the discretion of public employers voluntarily to use race and gender preferences. To the extent that Proposition 209 bans such preferences statewide, the court held that Title VII preempts it under the Supremacy Clause.
The district court next explained that plaintiffs would suffer irreparable harm if Proposition 209 takes effect. If not enjoined, Proposition 209 immediately would ban existing preference programs in violation of plaintiffs’ constitutional rights. The State, in contrast, the court concluded, would suffer little hardship from a preliminary injunctiоn, which merely would suspend implementation of Proposition 209 pending trial.
Finally, the district court believed that a preliminary injunction would serve the public interest. Preserving the pre-election status quo would “harmonize” the public need for “clear guidance with respect to Proposition 209” with “the compelling interest in remedying discrimination that underlies existing constitutionally-permissible state-sponsored affirmative action programs threatened by Proposition 209.”
C
On December 31, 1996, Californians Against Discrimination and Preferences (“CADP”), the defendant/intervenor, applied to the district court for a stay of the preliminary injunction pending appeal. The State joined in the application. CADP and the State also filed notices of appeal to this court on January 3, 1997, and subsequently moved to stay the district court’s injunction pending appeal pursuant to Federal Rule of Appellate Procedure 8. The district court entered its order declining to stay the injunction on February 7, 1997. On February 10, 1997, we heard oral argument on the application to us for a stay. The parties’ arguments for and against a stay pending appeal focused primarily on the merits underlying the рreliminary injunction itself. We thus deferred submission of the stay application and expedited submission on the merits,
II
Before reaching the merits of the preliminary injunction, we pause to consider whether this case even belongs in federal court. No California state court has yet construed the meaning or effect of Proposition 209. Rather, plaintiffs ask a federal tribunal to enjoin flat-out this state constitutional amendment passed by a majority of the voters.
No doubt the district court is correct, at least in theory. Judges apply the law; they do not sua sponte thwart wills. If Proposition 209 affronts the federal Constitution— the Constitution which the people of the United States themselves ordained and established — the district judge merely reminds the people that they must govern themselves in accordance with principles of their own choosing. If, however, the district judge relies on an erroneous legal premise, the decision operates to thwart the will of the people in the most literal sense: What the people of California willed to do is frustrated on the basis of principles that the people of the United States neither ordained nor established. 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.
The Supreme Court recently reminded federal judges that we should not even undertake to review the constitutionality of a state law without first asking: “Is this conflict really necessary?” Arizonans for Official English v. Arizona, — U.S.-,-,
The ink on Proposition 209 was barely dry when plaintiffs filed this lawsuit. For this federal tribunal to tell the people of California that their one-day-old, never-applied-law violates the Constitution, we must have more than a vague inkling of what the law actually does. Plaintiffs challenge Proposition 209 to the extent that it eliminates “affirmative action.” A California court that considered Proposition 209’s pre-enactment ballot title and ballot label remarked that the term “affirmative action” is an “amorphous, value-laden term,” “rarely defined so as to form a common base for intelligent discourse.” Lungren v. Superior Court,
The district court properly limited its use of the term “affirmative action” to state programs that use race or gender classifications.
Without this factual basis, we would not hesitate to remand to the district court for reconsideration of the State’s abstention motion in light of Arizonans. From the district court’s findings, however, we are satisfied, to answer the Supreme Court’s question, that “yes — this conflict really is necessary.” We may now address the merits.
Ill
A preliminary injunction may issue “if the movant has shown either a likelihood of success оn the merits and the possibility of irreparable injury, or that serious questions are raised and the balance of hardships tips sharply in the movant’s favor.” Armstrong v. Mazurek,
An abuse of discretion occurs if the district court “bases its decision on an erroneous legal standard or on clearly erroneous findings of fact.” American-Arab Anti-Discrimination Comm. v. Reno,
In granting the preliminary injunction, the district court first concluded that plaintiffs have demonstrated a likelihood of success on their claim that Proposition 209 violates the Equal Protection Clause of the Fourteenth Amendment. We must examine whether the district court’s conclusion is based on an
IV
As a matter of “conventional” equal protection analysis, there is simply no doubt that Proposition 209 is constitutional. The Equal Protection Clause provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XTV, § 1. The central purpose of the Equal Protection Clause “is the prevention of official conduct discriminating on the basis of race.” Washington v. Davis,
The ultimate goal of the Equal Protection Clause is “to do away with all govem-mentally imposed discrimination based on race.” Palmore v. Sidoti,
The standard of review under the Equal Protection Clause does not depend on the race or gender of those burdened or benefited by a particular classification. Richmond v. J.A. Croson Co.,
The Equal Protection Clause guarantees-that the government will not classify individuals on the basis of impermissible criteria. Most laws, of course — perhaps all— classify individuals one way or another. Individuals receive, or correspondingly are denied, governmental benefits on the basis of income, disability, veteran status, age, occupation and countless other grounds. Legislative classifications as a general rule are presumptively valid under the Equal Protection Clause. City of Cleburne v. Cleburne Living Ctr.,
The general rule does not apply, however, when a law classifies individuals by race or gender. Any governmental action
The first step in determining whether a law violates the Equal Protection Clause is to identify the classification that it draws. Proposition 209 provides that the State of California shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race or gender. Rather than classifying individuals by race or gender, Proposition 209 prohibits the State from classifying individuals by race or gender. A law that prohibits the State from classifying individuals by race or gender a fortiori does not classify individuals by race or gender. Proposition 209’s ban on race and gender preferences, as a matter of law and logic, does not violate the Equal Protection Clause in any conventionаl sense.
V
As a matter of “political structure” analysis, however, plaintiffs challenge the level of government at which the State of California has prohibited race and gender preferences. Plaintiffs contend, along with the United States as amicus curiae, that Proposition 209 imposes an unequal “political structure” that denies women and minorities a right to seek preferential treatment from the lowest level of government. The district court agreed, relying on the so-called “Hunter ” doctrine.
A
In Hunter v. Erickson, the Supreme Court addressed the constitutionality of an amendment to the Charter of the City of Akron, Ohio. Before the charter amendment was enacted, the Akron City Council had authority to pass ordinances regulating the real estate market. Hunter,
The Supreme Court found in the charter amendment “an explicitly racial classification treating racial housing matters differently from other racial and housing matters.” Id. at 389,
The Court later applied these principles to Washington State’s educational decisionmak-ing structure in Washington v. Seattle School District No. 1. A statewide initiative in Washington barred school boards from assigning students beyond their neighborhood schools. The initiative contained several broad exceptions, which effectively operated to preclude only desegregative busing. Seattle,
As in Hunter, the Court determined that the initiative effected a racial classification by removing “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.” Id. at 474,
The district court applied Hunter and Seattle to invalidate Proposition 209. Proposition 209, the court found, effected a race and gender classification by singling out race and gender preferences for unique political burdens. The court concluded that race and gender preferences, like antidiscrimination laws and integrative busing, are of special interest to minorities and women. Before Proposition 209 was enacted, the court reasoned, women and minorities could petition local government for preferential treatment. To obtain preferential treatmеnt now, the court concluded, women and minorities must appeal to the statewide electorate, a “new and remote level of government.”
The district court next analyzed whether the classifications it gleaned from Proposition 209 withstood “heightened scrutiny.” The court concluded that the classifications served no important government interest, let alone a compelling one, thus denying women and minorities equal protection of the laws.
B
The State contends that the district court’s conclusion rests on an erroneous legal premise because Proposition 209, unlike the Hunter and Seattle initiatives, does not reallocate political authority in a discriminatory manner. CADP contends, additionally, that a majority of the electorate cannot restructure the political process to discriminate against itself. We address the second contention first.
1
Can a statewide ballot initiative deny equal protection to members of a group that constitutes a majority of the electorate that enacted it? Plaintiffs allege that Proposition 209 places procedural burdens in the path of women and minorities, who together constitute a mаjority of the California electorate. Is it possible for a majority of voters imper-missibly to stack the political deck against itself? The Supreme Court leaves us, quite frankly, a little perplexed as to the answer.
The “political structure” equal protection eases, namely Hunter and Seattle, addressed the constitutionality of political obstructions that majorities had placed in the way of minorities to achieving protection against unequal treatment. Hunter, holding that the Akron amendment denied minorities equal protection of the laws, observed that “[t]he majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that.” Hunter,
The difficulty, however, lies in reconciling what seems to be that eminently sensible conclusion with the principle that the Fourteenth Amendment guarantees equal protection to individuals and not to groups. That the Fourteenth Amendment affords individuals, not groups, the right to demand equal protection is a fundamental first principle of “conventional” equal protection jurispru
Where a state denies someone a job, an education, or a seat on the bus because of her race or gender, the injury to that individual is clear. The person who wants to work, study, or ride but cannot because she is black or a woman is denied equal protection. Where, as here, a state prohibits race or gender preferences at any level of government, the injury to any specific individual is utterly inscrutable. No one contends that individuals have a constitutional right to preferential treatment solely on the basis of their race or gender. Quite the contrary. What, then, is the personal injury that members of a group suffer when they cannot seek preferential treatment on the basis of their race or gender from local government? This question admits of no easy answer.
Hunter and Seattle suggest that the political structures they held unconstitutional imposed individual injuries analogous to “denying [members of a racial minority] the vote, on an equal basis with others.”
Thankfully, the absence of any specific findings by the district court in this regard relieves us from having to reconcile “the long line of eases understаnding equal protection as a personal right,” Id., with Hunter’s admonition that “the majority needs no protection against discrimination,” Hunter,
2
The Supreme Court has recognized an explicit distinction “between state action that discriminates on the basis of race and state action that addresses, in neutral fashion, race-related matters.” Crawford v. Board of Education of the City of Los Angeles,
In Crawford, the Supreme Court considered an amendment to the California Constitution that prohibited state courts from mandating pupil assignment or transportation except to remedy a specific equal protection violation. Id. at 532,
Crawford, thus, on the one hand, dictates that “the Equal Protection Clause is not violated by the mere repeal of race-related legislation or policies that were not required by the Federal Constitution in the first place.” Id. at 538,
Plaintiffs attempt to align Proposition 209 with Hunter and Seattle and distinguish it from Crawford. Crawford, they argue, addressed an amendment that merely repealed a benefit that the state itself had afforded, not the authority of local subdivisions to afford the same benefit. Hunter and Seattle, in their view, foreclose the authority of states to withdraw local jurisdiction to еnact race and gender preferences unless the state also withdraws local jurisdiction to enact preferences based on any other criteria. Such an extraordinary proposition hardly follows from Hunter and Seattle.
a
The Hunter doctrine “does not mean, of course, that every attempt to address a racial issue gives rise to an impermissible classification.” Seattle,
States have “extraordinarily wide latitude ... in creating various types of political subdivisions and conferring authority upon them.” Holt Civic Club v. Tuscaloosa,
Hunter and Seattle relied expressly on the states’ existing educational and housing deci-sionmaking processes to find that they had reallocated authority in a racially discriminatory manner. In Hunter, the state obstructed equal housing by removing only racially fair housing prerogatives from the lawmaking procedure for all other housing matters. In Seattle, the state obstructed equal education by removing only racially desegrega-tive prerogatives from the lawmaking procedure for all other educational matters.
As the Seattle Court explained:
Before adoption of the initiative, the power to determine what programs would most appropriately fill a school district’s educational needs — including programs involving student assignment and desegregation — was firmly committed to the local board’s discretion. The question whether to provide an integrated learning environment rather than a system of neighborhood schools surely involved a decision of that sort. After passage of Initiative 350, authority over all but one of those areas remained in the hands of the local board. By placing power over desegregative busing at the state level, then, Initiative 350 plainly differentiates between the treatment of prоblems involving racial matters and that afforded other problems in the same area.
Seattle,
The Seattle majority specifically allayed any concern that its holding rendered the state powerless to address racial issues where localities acted first. Justice Powell had lamented in dissent what a “strange notion” it was, “alien to our system — that local governmental bodies can forever preempt the ability of a State — the sovereign power — to address a matter of compelling concern to the State.” Id. at 495,
The majority responded that the “horribles paraded by the dissent” in footnote 14 were “entirely unrelated to this case.” Id. at 480 n. 23,
When, in contrast, a state prohibits all its instruments from discriminating against or granting preferential treatment to anyone on the basis of race or gender, it has promulgated a law that addresses in neutral-fashion race-related and gender-related matters. It does not isolate race or gender antidiscrimi-nation laws from any specific area over which the state has delegated authority to a local entity. Nor does it treat race and gender antidiscrimination laws in one area differently from race and gender antidiscrimination laws in another. Rather, it prohibits all race and gender preferences by state entities.
Even a state law that does restructure the political process can only deny equal protection if it burdens an individual’s right to equal treatment.
A denial of equal protection entails, at a minimum, a classification that treats individuals unequally. See, e.g., Adarand, — U.S. at -,
Plaintiffs challenge Proposition 209 not as an impediment to protection against unequal treatment but as an impediment to receiving preferеntial treatment. The controlling words, we must remember, are “equal” and “protection.” Impediments to preferential treatment do not deny equal protection.
The alleged “equal protection” burden that Proposition 209 imposes on those who would seek race and gender preferences is a burden that the Constitution itself imposes. The Equal Protection Clause, parked at our most “distant and remote” level of government, singles out racial preferences for severe political burdens — it prohibits them in all but the most compelling circumstances. It is well-settled that “all governmental action based on race — a group classification long recognized as in most circumstances irrelevant and therefore prohibited — should be subject to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.” Adarand, — U.S. at---,
That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether. States are free to make or not make any constitutionally permissible legislative classification. Nothing in the Constitution suggests the anomalous and bizarre result that preferences based on the most suspect and presumptively unconstitutional classifications — race and gender — must be readily available at the lowest level of government while preferences based on any other presumptively legitimate classification— such as wealth, age or disability — are at the mercy of statewide referenda.
After all, the “goal” of the Fourteenth Amendment, “to which the Nation continues to aspire,” is “a political system in which race no longer matters.” Shaw,
The Constitution permits the people to grant a narrowly tailored racial preference only if they come forward with a compelling interest to back it up. See, e.g., Adarand, — U.S. at-,
A state law that prohibits classifications based on race or gender is a law that addresses in neutral-fashion race-related and gender-related matters. As in Crawford, “[i]t would be paradoxical to conclude that by adopting the Equal Protection Clause of the Fourteenth Amendment, the voters of the State thereby had violated it.”
VI
The district court also concluded that plaintiffs have demonstrated a likelihood of success on their claim that Proposition 209 is invalid under the Supremacy Clause because Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq, pre-empts it.
The district court is correct that federal law may pre-empt state law to the extent that the state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Hines v. Davidowitz,
Section 708 of Title VII provides:
Nothing in this subchapter shall be deemed to exempt or relieve any person from any liability, duty, penalty, or punishment provided by any present of future law of any State or political subdivision of a State, other than any such law which purports to require or permit the doing of any act which would be an unlawful employment practice under this subchapter.
42 U.S.C. § 2000e-7. That is all Title VII pre-empts. Proposition 209 does not remotely purport to require the doing of any act which would be an unlawful employment practice under Title VII. Quite the contrary, “[discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.” Griggs v. Duke Power Co.,
Section 1104 of Title XI also generally limits the pre-emptive effect of all titles of the Civil Rights Act:
Nothing contаined in any title of this Act shall be construed as indicating an intent on the part of Congress to occupy the field in which any such title operates to the exclusion of State laws on the same subject matter, nor shall any provision of this Act be construed as invalidating any provision of State law unless such provision is inconsistent with any of the purposes of this Act, or any provision thereof.
42 U.S.C. § 2000h-4.
Section 1104’s more general pre-emption provisions would operate to pre-empt Proposition 209 only if Proposition 209 were inconsistent with any purpose or provision of the 1964 Civil Rights Act. Title VII’s one command regarding race and gender preferences conclusively demonstrates that Proposition 209 is entirely consistent: “Nothing contained in this subchapter shall be interpreted to require any, [entity] ... subject to this subchapter to grant preferential treatment to any individual or to any group because of the race, color, religion, sex, or national origin of such individual or group____” 42 U.S.C. § 2000e-2(j); see Texas Dep’t of Community Affairs v. Burdine,
Because Title VII by its plain language does not pre-empt Proposition 209, the district court relied on an erroneous legal premise in concluding that plaintiffs are likely to succeed on the merits of their pre-emption claims.
VII
With no likelihood of success on the merits of their equal protection or pre-emption claims, plaintiffs are not entitled to a preliminary injunction. The district court determined that plaintiffs had demonstrated irreparable harm because Proposition 209 threatened to inflict an immediate and ongoing constitutional injury upon them. That conclusion, for reasons we have explained, rests on an erroneous legal premise. As we explained in Glick v. McKay,
For the foregoing reasons, we vacate .the preliminary injunction, deny the motion to stay the injunction as moot, and remand to district court for further proceedings consistent with this opinion.
Preliminary injunction VACATED; stay DENIED as moot; REMANDED.
Notes
. When we use the word “race,” we refer also to color, ethnicity, and national origin.
. When we refer to "the State,” we mean, more specifically, Defendants/Appellants. Certain defendants did not appeal the preliminary injunction, including the City and County of San Francisco, the County of Marin, and Delaine Eastin, all of whom have filed briefs and papers in support of Plaintiffs/Appellees.
. The district court also granted plaintiffs' motion provisionally to certify the plaintiff class on November 27, 1996, and their motion to certify the defendant class on December 16, 1996.
. The district court deemed it “appropriate to waive the bond requirement” of Federal Rule of Civil Procedure 65(c) in this case. Coalition,
. The practice of this Circuit, made explicit in Gregorio T. v. Wilson,
.The district court concluded that plaintiffs have standing to bring this suit, which the State does not challenge on appeal. The court found (1)
Plaintiffs, conversely, argue that we must dismiss this appeal because under Arizonans for Official English v. Arizona, - U.S. -,
. Plaintiffs apparently do not feel the same constraints. They argue, for example, that we must affirm the injunction because "[t]he remedy for intentional discrimination often calls for race-specific relief." Coral Constr. Co. v. King County,
. The district court denied the State's motion to abstain pursuant to Railroad Comm’n of Texas v. Pullman Co.,
. Plaintiffs contend, as an initial matter, that we have no authority to review the "underlying merits” of the preliminary injunction that the district court entered. Plaintiffs are correct to the extent that we will not reverse a preliminary injunction just because we would have arrived at a different result if we had applied the law to the facts of the сase. Sports Form, Inc. v. United Press Int’l,
The parties to this appeal dispute whether the district court relied on an erroneous legal standard, not whether the district court wrongly applied the right legal standard to the facts of the case. Where the issue is whether the district court got the law right in the first place, we do not defer review and thereby allow lawsuits to proceed on potentially erroneous legal premises.
. Proposition 209 contains a savings clause providing that "[n]othing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.” Cal. Const, art. 1, § 31(c).
. In the voting rights cases Hunter cited, Reynolds v. Sims,
. This admonition seems to perceive the right to equal protection as a group right rather than an individual right, which the Supreme Court later denounced in Croson and Adarand. When we attribute equal protection rights to groups rather than to individuals, "[i]t reinforces the perception that members of the same racial group— regardless of their age, education, economic status, or the community in which they live — think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes.” Shaw,
. CADP’s argument that Hunter and Seattle do not extend to gender-based laws because women themselves constitute a majority of the electorate is, nonetheless, compelling. Had the parties presented evidence, and had the district court found, that women constitute a majority of the California electorate, we likely would conclude as a matter of law, for that reason alone, that Proposition 209’s ban on gender-based preferences does not deny women equal protection. By so concluding, to be sure, we would bring to a head the tension between the protection that the "political structure" cases afford to the "ability of minority groups to achieve beneficial legislation,” Seattle,
. See Williams v. Mayor,
. Rather, the State had given its municipalities "the power to enact antidiscrimination ordinances." Seattle,
. The district court perceived no relevant difference between the busing programs at issue in Seattle and the racial preference programs at issue here. We have recognized, however, that " 'stacked deck’ programs [such as race-based 'affirmative action'] trench on Fourteenth Amendment values in ways that 'reshuffle' programs [such as school desegregation] do nоt.” Associated Gen. Contractors of Cal. v. San Francisco Unified Sch. Dist.,
. We must be sure not to misread the district court's finding that those seeking race or gender preferences now must mount a statewide campaign while "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.” Proposition 209 only prohibits preferential treatment based on race or gender. "Those seeking preferences based on any ground other than race or gender, such as age, disability, or veteran status,” who "continue to enjoy access to the political process at all levels of government,” include, we must remember, everyone— members of all races and both genders. If the state ever prohibited women and minorities from seeking preferences on a basis available to everyone else, such as age, disability, or veteran status, the state would violate Proposition 209's prohibition against race or gender discrimination.
. To the extent that Proposition 209 prohibits race and gender preferences to a greater degree than the Equal Protection Clause, it provides greater protection to members of the gender and races otherwise burdened by the preference. See PruneYard Shopping Ctr. v. Robins,
. The district court also found that Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq., and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, did not pre-empt it. Plaintiffs do not contend otherwise on appeal.
. Plaintiffs raise no claim of field pre-emption, which, as the district court noted, does not apply. The district court also rejected plaintiffs preemption claim on the ground that "compliance with both federal and state regulation is a physical impossibility.” Florida Lime & Avocado Growers, Inc. v. Paul,
. In light of the express pre-emption provisions and plain language of Title VII, we do not reach the question of whether EEOC guidelines, as opposed to regulations, merit Chevron deference.