Challenge to CA Affirmative Action Ban

[ilbegone]

Court Hears Challenge to CA Affirmative Action Ban

Backers of affirmative action asked a federal appeals court Monday to overturn California's 15-year-old ban on considering race in public college admissions, citing a steep drop in black, Latino and Native American students at the state's elite campuses.

A three-judge panel of the U.S. 9th Circuit Court of Appeal heard arguments in the latest legal challenge to Proposition 209, the landmark voter initiative that barred racial, ethnic and gender preferences in public education, employment and contracting.

The affirmative action ban has withstood multiple challenges since voters approved it in 1996, but advocates say their campaign to overturn it has been bolstered by recent court decisions, as well as support from Gov. Jerry Brown.

Dozens of minority students backing the plaintiffs filled the courtroom for the hour-long hearing, when the justices questioned whether they should tamper with a 1997 ruling in which the same appellate court upheld Proposition 209.

Attorneys for the plaintiffs said affirmative action is needed to increase racial diversity at the University of California's most prestigious campuses and professional schools. Data shows that UC's efforts to enroll diverse student populations without considering race have failed, they argued.

"What you see before you is a new form of separate and unequal going on right before our eyes," plaintiffs' attorney George Washington told the three male justices.

Ralph Kasarda, who is defending Proposition 209, told the justices that the San Francisco-based appellate court was correct when it upheld the affirmative-action ban. He called the current challenge "redundant and baseless."

"Proposition 209 guarantees everyone's right to be treated fairly and not be discriminated against based on skin color or gender," said Kasarda, an attorney for the Pacific Legal Foundation, which represented the sponsors of the 1996 ballot measure.

The complaint was filed in January 2010 by several dozen minority students and advocacy groups who say the ban violates the civil rights of black, Latino and Native American students. Those groups make up about half of California's high school graduates, but much smaller percentages at UC's most competitive campuses.

For example, at UC Berkeley, the current freshmen class of California residents is roughly 1 percent Native American, 3.5 percent black, 15 percent Latino, 30 percent white and 48 percent Asian, according to UC data.

"As a state-serving institution, the university should reflect the demographics of California, and right now it doesn't," said Magali Flores, 20, a third-year Latina student majoring in ethnic studies at UC Berkeley. "Prop. 209 wants to pretend that race isn't real."

The court agreed to hear the case after U.S. District Judge Samuel Conti dismissed the lawsuit in December 2010. The California Supreme Court has twice ruled that Proposition 209 is constitutional.

Advocates say justices need to reconsider in light of recent court rulings on the issue.

In 2003, the U.S. Supreme Court ruled the University of Michigan Law School could consider race in admissions decisions to promote campus diversity.

Last year, a three-judge panel of the U.S. 6th Circuit Court of Appeals cited that ruling when it overturned Michigan's affirmative action ban. The full appellate court has agreed to reconsider the case.

Brown joined the plaintiffs in arguing the affirmative action ban is unconstitutional.

http://abcnews.go.com/US/wireStory/c...n-ban-15576444

[ilbegone]

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