SAN FRANCISCO (CN) - California's affirmative action ban created "a new Jim Crow in the state of California," an attorney told the 9th Circuit on Monday.
By prohibiting schools in the University of California system from considering race as a factor for admission, section 31 of Proposition 209, which voters passed in 1996, bears comparison to the racial inequalities of the 1960s, attorney Shanta Driver said.
The Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary sued the state in February 2010, claiming the ban implemented by Proposition 209 violated the equal protection clause of the 14th Amendment.
The class action was brought on behalf of a group of minority students who were concerned their grade point averages would not be high enough to merit acceptance to prestigious schools like UC Berkeley.
U.S. District Judge Samuel Conti dismissed the action in December 2010, ruling that the coalition failed to "destroy the fundamental logic" of Coalition for Economic Equality v. Wilson, in which the 9th Circuit found section 31 was constitutional.
Driver fought that holding at a hearing Monday. "It took conscious measures to create opportunities for Latinos and blacks, opportunities to become lawyers and doctors in any kind of proportion in this society," she said. "Today, if you looked at the business school at UCLA, there is one black student. The law school at UCLA? Three Latino and one black student in a class of 200 students. I do not believe that is what Wilson anticipated."
She urged the panel to allow the case to be reconsidered en banc by a larger panel of 11 judges, who have more latitude to re-evaluate the 16-year-old law. "What is so important in this case to us is we're asking you give the students in case their day in court," Driver said. "Not to do that means a badge of inferiority is affixed to those students and furthers the possibility that California will become a state commanded by an apartheid system."
"We think that somebody has the obligation to take responsibility to prevent what is occurring now, which is the creation of a new Jim Crow in the state of California," she concluded.
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