Page One

Appeals Court Considers Challenge to Affirmative Action Ban

By Julia Cheever (BCN)
Tuesday February 14, 2012 - 08:09:00 AM

Lawyers for 46 minority students and a civil rights group asked a federal appeals court in San Francisco today to allow them to go forward with their challenge to a voter-approved ban on affirmative action in University of California admissions. 

"We're asking that you give the students in this case their day in court," attorney Shanta Driver told a three-judge panel of the 9th U.S. circuit Court of Appeals. 

The students and the Coalition to Defend Affirmative Action want the appeals court to overturn a lower court ruling dismissing their 2010 lawsuit and to allow a trial on their challenge to Proposition 209. 

The proposition, a 1996 voter initiative, prohibited government preferences for minority groups and women in public education, employment and contracting. 

The students' lawsuit contests only the part of the measure than bans affirmative action for minority students applying to UC campuses. 

George B. Washington, another attorney for the students, argued, "It is a special law, directed only at blacks and Latinos." 

In an earlier case, the federal appeals court upheld Proposition 209 in its entirety in 1997. 

But the students contend that circumstances have changed because a 2003 U.S. Supreme Court decision allowed the University of Michigan to consider race as a one of a number of admissions factors. 

The students also say that courts have never looked at the actual effect of Proposition 209, which they say has resulted in a sharp drop in the numbers of blacks, Hispanics and Native Americans at the flagship university campuses. 

Ralph Kasarda, a lawyer for Proposition 209 sponsor Ward Connerly, argued that the 1997 appeals court ruling definitively foreclosed the new lawsuit. 

He told the court that the initiative does not prevent students from seeking preferences to overcome other factors, such as economic disadvantages, that might hinder their admission to the university. 

Proposition 209 "is no barrier to the plaintiffs to petition the University of California to adopt any admissions policy that does not discriminate on the basis of race," Kasarda told the court. The panel took the case under submission after hearing 45 minutes of arguments and will issue a written ruling at a later date. 

Gov. Jerry Brown has weighed in on the case, asking the court to reopen the challenge to Proposition 209.  

Deputy California Attorney General Antonette Cordero, representing Brown, told the court, "We believe Proposition 209 does not level the playing field." 

Instead, Cordero argued, the measure creates "an unequal political structure" for minority groups.