Affirmative action ban challenge gains little traction in court
By Howard Mintz
02/13/
2012
A federal appeals court on Monday appeared likely to turn away the latest legal challenge to Proposition 209, indicating that it is bound by a previous ruling upholding California's voter-approved ban on public affirmative action programs.
During an hour of arguments in San Francisco, a three-judge 9th U.S. Circuit Court of Appeals panel questioned its ability to tamper with Proposition 209 in view of the court's 1997 decision finding the nearly 16-year-old law constitutional.
More than 40 black and Latino students backed a fresh challenge to the ban, arguing that it has thwarted minority enrollment in the University of California system, particularly at prestigious campuses such as UC-Berkeley and UCLA. They are appealing a San Francisco judge's decision last year dismissing the lawsuit, based in large part on the finding that the 9th Circuit's earlier ruling foreclosed the challenge.
Gov. Jerry Brown last year joined the students in urging the 9th Circuit to overturn the law. In Monday's arguments, Deputy Attorney General Antonette Cordero told the judges the Brown administration "believes Proposition 209 does not level the playing field."
Dozens of students, gathered in the morning drizzle after the court hearing to protest the lack of diversity in UC schools.
Issamar Camacho, one of the plaintiffs in the case, said the students are part of a movement to get more minorities, primarily black and Latino students from low income
areas, admitted to universities nationwide.
"We're going to keep fighting and organizing," said Camacho, a former Los Angeles high school student who was originally turned away from UC Berkeley but has since been admitted. "We need to fight to get affirmative action back in California."
Lawyers for the governor and the students argued the previous 9th Circuit case was "wrongly decided" and that it did not consider Proposition 209's effect on minority enrollment at UC campuses. But the judges appeared skeptical.
"I don't know the purpose of arguing that (the case) was wrongly decided," said Judge A. Wallace Tashima.
Judge Barry Silverman, responding to an argument that the 1997 decision has allowed Proposition 209 to thwart black and Latino enrollment, added, "Why aren't there other ways to fight that?"
The three judges may be boxed in by the court's precedent but did suggest the plaintiffs can ask the 9th Circuit to reconsider the case with a larger 11-judge panel, which has more authority to re-examine the law.
The governor has asked the court to consider that step if it declines to reject the 1997 decision upholding Proposition 209.
The judges had few questions for Ralph Kasarda, the lawyer defending Proposition 209 on behalf of former UC Regent Ward Connerly. He argued the 9th Circuit cannot ignore its own precedent. After the hearing, he called the new lawsuit "redundant and baseless."
The case is unfolding while a similar challenge is under way in Michigan, where a federal appeals court last year struck down an affirmative action ban in that state's higher education. The appeals court is rehearing the case in March.
http://www.mercurynews.com/bay-area-news/ci_19954540