If Even the Ninth Circus Upholds California’s Prop. 209, Forbidding Affirmative Action, Why Won’t California Higher Ed Officials Uphold It?

Posted by Nicholas Stix

Groundhog Day in court? California ban on affirmative action is upheld. Again.

A three-judge panel from the Ninth US Circuit cited a 1997 appeals court decision upholding the affirmative action ban, which led to a sharp decline in minority enrollment at California state universities.
By Warren Richey, Staff writer / April 2, 2012
Christian Science Monitor

A federal appeals court on Monday left intact California’s ban on race-based affirmative action as a means to boost the ranks of minority students in the state university system, throwing out a lawsuit that sought to overturn the policy.

In turning the lawsuit aside, a three-judge panel of the Ninth US Circuit Court of Appeals cited a 1997 appeals court decision that upheld the constitutionality of the prohibition.

California voters approved the ban, Proposition 209, in 1996. The state-wide ballot initiative amended the state’s constitution to read in part: “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.”

The amendment forced the University of California to end its long-standing affirmative action programs, and, instead, rely on race-neutral admissions mechanisms.

The action was challenged by several individuals and groups alleging the measure violated equal protection guarantees of the 14th Amendment. The court disagreed, and dismissed the suit 15 years ago.

In an effort to boost minority enrollment, the university system adopted a procedure of admitting the top four percent of graduates from any California high school. It also decreased the weight applied to standardized tests. But those policies did not compensate for the end of affirmative action, which led to a 50 percent reduction in minority enrollment. The new policies have increased minority enrollment, but not enough, opponents of Prop. 209 say.

Like the earlier suit, the new lawsuit raised equal protection claims. The plaintiffs said the university system was acting unfairly by allowing admissions officials to depart from baseline admissions standards to accommodate military veteran status, income, geographical background, athleticism, and legacy, but not to promote racial diversity or to address de facto racial segregation and inequality.

The plaintiffs said these policies treated African American, Latino, and Native American students unequally from Asian American and white students.

The appeals court cited the 1997 decision that held: “As a matter of ‘conventional’ equal protection analysis there is simply no doubt that Proposition 209 is constitutional.”

Writing for the court, Judge Barry Silverman also rejected the argument that the Supreme Court’s decision upholding the use of race to foster racial diversity at the University of Michigan Law School required California to adopt similar race-based diversity plans.

“[The Michigan decision] upheld as permissible certain race-based affirmative action programs. It did not hold that such programs are constitutionally required,” Judge Silverman said.

The bottom line, the judge said, is that the 1997 appeals court decision remains the law of the circuit – including California.

The US Supreme Court has agreed to hear a challenge to the affirmative action plan at the University of Texas. The case is not yet scheduled for argument. It will test the constitutionality of Texas officials’ justification of their use of race-based admissions criteria to attempt to achieve an acceptable level of racial diversity in every classroom and in every subject taught at the university.