Defenders of Affirmative Action Take Aim at California Ban to Derail Similar Measures in Other States

February 15, 2010

An activist group plans on Tuesday to file a federal lawsuit challenging the constitutionality of California's Proposition 209 ban on affirmative-action preferences in an attempt to hinder campaigns for similar measures in other states.

The lawsuit will be filed in U.S. District Court on behalf of black, Hispanic, and Native American students seeking admission to the University of California, according to a statement issued on Monday by the group mounting the litigation, the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary.

The lawsuit will argue that the California measure, adopted by that state's voters in 1996, violates the Equal Protection Clause of the U.S. Constitution by placing a distinct set of legal hurdles in front of minority groups seeking to increase their representation on the university system's campuses.

The coalition has made similar arguments in a lawsuit challenging the constitutionality of a preference ban adopted by Michigan voters in 2006, in a case pending before a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit. George B. Washington, the group's lead lawyer, said last week that the group was filing its new challenge to Proposition 209 in an attempt to throw a wrench into campaigns on behalf of similar measures being mounted by the American Civil Rights Institute, a group established by the former University of California regent Ward Connerly.

The lawsuit comes as Arizona prepares to decide the fate of a proposed preference ban that state lawmakers voted last year to put on this November's ballot. Utah's Republican-dominated Legislature is considering, and widely expected to pass, a resolution to put a similar measure on the ballot there this fall.

The coalition needs to defeat Proposition 209, Mr. Washington said, because otherwise the American Civil Rights Institute is "going to go and play bully boy with minorities in states like Utah and Arizona." With a legal win in California, he said, "we think we will turn it around completely" and "they are just not going to have any strength anymore."

A similar challenge to Proposition 209 was rejected by the U.S. Court of Appeals for the Ninth Circuit in 1997. Mr. Washington said he believed the latest challenge had a good chance of succeeding, however, as a result of changes in the legal landscape arising from the U.S. Supreme Court's 2003 Grutter v. Bollinger decision. That ruling, involving the University of Michigan's law school, said colleges could constitutionally use race-conscious admissions policies to produce diversity if no reasonable race-neutral alternatives were available.

The American Civil Rights Institute is taking a fairly new approach in using legislative action to get proposed bans on such preferences placed on state ballots. Mr. Connerly and other advocates of such measures used citizen petitions to get on the ballot California's Proposition 209 and the preference bans passed by voters in Washington State in 1998, Michigan in 2006, and Nebraska in 2008. Despite its success in Nebraska, the campaign met with more defeat than victory in 2008, as it failed to gather enough petition signatures to get such measures on the ballot in Arizona, Missouri, and Oklahoma, and watched Colorado voters narrowly defeat a measure placed before them.

All of the measures proposed so far call for public colleges and other state and local agencies to be banned from granting affirmative-action preferences in employment, contracting, and education-related decisions.