• September 3, 2015

Federal Judge Dismisses Challenge to California's Racial-Preference Ban

A federal judge has rejected the latest challenge to California's Proposition 209, which bans the use of affirmative-action preferences by public colleges and other state and local agencies. In dismissing the lawsuit on Wednesday, Judge Samuel Conti of the U.S. District Court in San Francisco said the plaintiffs in the case had failed to convince him that the legal landscape has changed enough in recent years to undermine a previous appeals-court decision upholding the state measure.

Proposition 209, an amendment to the California Constitution approved by that state's voters in 1996, survived a legal challenge the year after its passage, when the U.S. Court of Appeals for the Ninth Circuit rejected arguments that it conflicted with the U.S. Constitution's Equal Protection Clause and the Civil Rights Act of 1964.

In a new lawsuit filed in February, an activist group—the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary—argued that subsequent Supreme Court rulings had rendered the Ninth Circuit's 1997 decision obsolete, justifying a challenge to the California measure on some of the same legal grounds used before.

The chief argument revived in the latest lawsuit was that Proposition 209 violated the Equal Protection Clause by placing a distinct set of legal hurdles in front of minority groups seeking to increase their representation at the state's university systems. The Ninth Circuit's ruling, the lawsuit said, should be reconsidered in light of the U.S. Supreme Court's 2003 Grutter v. Bollinger decision, involving the University of Michigan's law school. In holding that colleges could constitutionally use race-conscious admissions policies to produce educationally beneficial diversity if no reasonable race-neutral alternatives were available, the Grutter decision removed much of the uncertainty surrounding the legality of such policies, putting them on the same plane as other admissions preferences routinely used by colleges, the lawsuit said.

The named defendants in the lawsuit were Gov. Arnold Schwarzenegger and the University of California's Board of Regents. Ward Connerly, a former University of California regent who helped lead the campaign for Proposition 209, and the American Civil Rights Institute, which Mr. Connerly established, successfully sought a role in the case as intervening defendants, arguing that Governor Schwarzenegger and the regents could not be counted on to put up a strong fight on behalf of the preference ban.

As intervening defendants, Mr. Connerly and his foundation filed a motion to dismiss the lawsuit.

In granting that motion on Wednesday, Judge Conti said he was not convinced that the Supreme Court's 2003 Grutter decision overruled the Ninth Circuit's 1997 ruling, which he was otherwise bound to regard as binding precedent.

"Grutter does not hold that the Constitution requires the use of race in student admission decisions; rather, it holds that the Constitution tolerates the use of race as one of many admission factors," Judge Conti's ruling said. The Grutter decision even indirectly made reference to Proposition 209, by discussing the race-neutral alternatives to race-conscious admissions developed since its passage, without in any way suggesting that it meant to overrule the California measure, Judge Conti noted.

The group behind the California lawsuit has made similar arguments in challenging a preference ban adopted by Michigan voters in 2006. The Michigan lawsuit is pending in the U.S. Court of Appeals for the Sixth Circuit.

In filing the California lawsuit, George B. Washington, the group's lead lawyer, said he was hoping to throw a wrench into campaigns on behalf of similar measures being mounted by the American Civil Rights Institute. He appears not to have succeeded, however. Arizona voters overwhelmingly adopted a preference ban last month. Their state joins California, Michigan, Nebraska, and Washington State in having such measures on the books.


1. amnirov - December 09, 2010 at 09:06 am

Good. Every state should ban affirmative action.

2. drnancylbush - December 09, 2010 at 09:59 am

Only in California could an activist group come up with as non-memorable name as "Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary". This group needs to take a few marketing courses!

3. jffoster - December 09, 2010 at 10:14 am

Sounds like a Baroque book title. Or a Postmodernist Broke book title.

4. cwinton - December 09, 2010 at 10:27 am

Affimative action has had its day and it's time to move on. Over time afirmative action has morphed from a means for leveling the playing field for those affected by the vestiges of slavery to one of overt racial preferences and quotas, with rather dubious racial classification favoring some over others. Voters have recognized the manifest unfairness that has come to characterize affirmative action and have reacted accordingly. Its advocates need to stop trying to turn back the clock and work on some better means for curbing the human tendancy to discriminate based on irrational criteria.

5. rblackstar - December 09, 2010 at 12:33 pm

In response to most of the comments here, should we do nothing to address the structural barriers that many students in color face in the K-12 system, and maintain the status quo in access to education?

Affirmative action is an attempt to address the disparities in the K-12 system in regards to students of color access to higher education. It may have not historically been administered in the most egalitarian way, but the idea still has merit and value.

Reverse discrimination? Perhaps it is a case of not all members within one a dominant group not receiving preferential treatment in every area of society. When you look at the historical implications of the hegemonic practices, structural discrimination and exclusion of other groups for hundreds of years in this country, it is clear that affirmative action only plays a small part in attempting to address the historic inequalities of higher education institutions.

6. lloyd_leighton - December 09, 2010 at 03:17 pm

The constitution guarantees equal opportunity, not equal results. Giving preference to people of color and discriminating against whites doesn't address the real issues causing the economic and educational gap between Whites, Blacks, Hispanics and Asians.

Consider this. According to the most recent figures from U.S Census Bureau, the median family income by race was;

Asian - $57,518
White - $48,977
Hispanic - $34,241
Black - $30,134

The Centers for Disease Control reports that the illegitimacy rates by race for 2007 (the most recent statistics I could find) were;

Asian - 16.6%
White - 34.8%
Hispanics - 51.3%
Black - 71.2%

What are the prospects that a 17 year old, unwed mother is going to finish high school?
What are the prospects that a 17 year old, unwed mother is going to finish a four year college degree?
What are the job prospects for a 17 year old unwed mother?

It seems to me that the evidence is pretty clear, being an unwed mother of any race has a dramatic negative impact on the wealth of both mother and the child.

Does prejudice exist? Sure it does. Is discrimination wrong? Sure it is. But, the important questions are, how many more years will we have to suffer discrimination against whites before we achieve racial harmony? How are we going to close the educational and economic gaps between the races if we are unwilling to address the core issue of illegitimacy?

7. softshellcrab - December 09, 2010 at 04:54 pm

@ rblackstar in #5 writes " In response to most of the comments here, should we do nothing to address the structural barriers that many students of color face in the K-12 system, and maintain the status quo in access to education?"

Yes. Exactly. Do nothing. We should do nothing to address your make-believe "structural barriers".

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