California Affirmative Action Ban Survives

     SAN FRANCISCO (CN) – The 9th Circuit on Monday dismissed a challenge to California’s affirmative action ban, upholding a voter-passed proposition prohibiting the consideration of race as a factor for University of California admissions.
     California bans affirmative action under section 31 of article I of the California Constitution, which was enacted with the passage of Proposition 209 in November 1996.
     The federal appeals court upheld section 31 in Coalition for Economic Equality v. Wilson just one year later, but the Coalition to Defend Affirmative Action led another challenge in 2010. The group was joined in the suit by Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN).
     After U.S. District Judge Samuel Conti dismissed the complaint for failure to state a claim, the groups sought relief from the 9th Circuit.
     “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,” BAMN attorney Shanta Driver argued at a hearing in February. “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.”
     The three-judge appellate panel affirmed dismissal on Monday, rejecting claims that Wilson II did not contemplate section 31’s effects on higher education.
     “The Wilson II court considered the very scenario plaintiffs now allege,” according to the majority opinion authored by Judge Barry Silverman. “In Wilson II, we ‘accept[ed] without question[ ] the District Court’s findings that [section 31] burdens members of insular minorities … who otherwise would seek to obtain race-based and gender-based preferential treatment from local entities.’ The District Court in Wilson I made specific findings regarding the effects section 31 would have on higher education and expressly found that the number of African American and Native American students across the University would fall by as much as 50%. This factual finding by the District Court is in line with the facts alleged in the complaint. The Wilson II court clearly relied on the district court’s findings. Thus, Plaintiffs’ contention that Wilson II did not address and therefore does not foreclose their as-applied equal protection challenge fails.”
     The suit also fails to state a claim against University of California president Mark Yudof, but the court concluded that Yudof does not deserve immunity under the 11th Amendment. As university president, Yudof was sufficiently connected to the enforcement of section 31, the majority opinion states.
     Judge A. Wallace Tashima took issue with this finding in an opinion that concurs and dissents in part.
     “Although § 31 itself does not designate a specific state entity to commence proceedings, other provisions of the California Constitution expressly charge the governor and the attorney general with the duty and authority to enforce the law,” Tashima wrote. “Those state executive officers, not Yudof, are the state officials responsible for enforcement of § 31.”
     BAMN plans to seek an en banc hearing before the 9th Circuit, its attorneys with Detroit-based Scheff, Washington and Driver said.
     “This is of critical importance to the country and to California,” said attorney George Washington, who argued the case with Driver in February. “The Ninth ought to be hearing it en banc. We’ve got to reverse Wilson. It’s a terrible decision and it has meant disaster for black and Latino students.”

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