Court hears new challenge to anti-affirmative action measure

A new challenge to California’s Prop. 209, the 1996 amendment to the state constitution which banned consideration of race or gender in public education, state contracting or employment, was heard in San Francisco Feb. 13 by a three-judge panel of the Ninth Circuit Court of Appeals.

The challenge, limited to public college and university admissions, was launched by the Coalition to Defend Affirmative Action, and is supported by Governor Jerry Brown. Coalition attorneys Shanta Driver and George Washington were joined in the courtroom by state Deputy Attorney General Antonette Cordero, along with dozens of African American and Latino students.

Prop. 209 opponents say enrollment statistics from the University of California system show how the measure has affected black, Latino and Native American enrollment. In the first year after its passage, their enrollment was cut in half. It has not returned to pre-209 levels since.

Washington told the court that just as in the times of slavery and segregation, 209 “makes it unlawful to adopt the only type of law, the only type of admissions program, which would allow black and Latino students to go to the universities and the graduate schools and medical schools, which is affirmative action.”

Driver said 209 made possible “resegregation of higher education” and a “new Jim Crow” in California.

Cordero said 209 “creates an unequal political structure” because it bars preferences for women and minorities while allowing them for groups like military veterans. She said Brown’s administration “believes Prop. 209 does not level the playing field.”

Defense attorney Ralph Kasarda of the rightwing Pacific Legal Foundation called the plaintiffs’ lawsuit “redundant and baseless.”  

Prop. 209 was initiated by former University of California regent Ward Connerly. Soon after its passage by 54 percent in November 1996, U.S. District Court Judge Thelton Henderson ruled the measure unconstitutional because it prevented minorities and women from pursuing benefits available to other groups.

The next year, Henderson’s ruling was overturned by a Ninth Circuit Court panel. Challenges in state courts have been unsuccessful, with the state Supreme Court twice ruling that Prop. 209 is constitutional.

The three-judge federal panel is expected to announce its decision in the coming months. It could reject the appeal, let the case go to trial in federal court, or allow it to be heard by an 11-judge appeals panel.

Meanwhile, a similar law in Michigan was struck down last summer by a three-judge panel. An appeal of their ruling is to be heard next month. And in Texas, a three-judge panel last year upheld using race as a factor in admission to the University of Texas in Austin. That decision may end up before the U.S. Supreme Court.