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Ninth Circuit rules (again) that California’s affirmative action ban does not violate Equal Protection, but advocacy groups fight on

April 5th, 2012  |  Cynthia L. Hackerott

California’s affirmative action ban, added to the state constitution when voters passed Proposition 209 in November 1996, did not violate the US Constitution, the Ninth Circuit held on Monday (Coalition to Defend Affirmative Action v Brown, April 2, 2012). Specifically, the court held that it was bound by its earlier precedent holding that the ban, incorporated into the California Constitution as Article I, Section 31, did not violate the federal Equal Protection Clause. Section 31 prohibits the state and its political subdivisions from discriminating against or granting preferential treatment based on race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting.

Previous rulings. After the passage of Prop. 209, several individuals and groups immediately brought suit under 42 U.S.C. Section 1983 against state officials and political subdivisions of the state, alleging, among other things, that Section 31 violated the Equal Protection Clause. In 1997, the Ninth Circuit, in Coalition for Economic Equity v Wilson (71 EPD ¶44,935) held that Section 31 was constitutional under both a conventional equal protection analysis and a political-structure equal protection analysis.

Under a conventional analysis, the court focuses on whether the government has classified individuals on the basis of impermissible criteria. The political structure doctrine prohibits the government from creating a political structure that treats all individuals as equals yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.

In Wilson, the Ninth Circuit held that Section 31 was constitutional under a conventional equal protection analysis because it “prohibits the State from classifying individuals by race or gender” and, therefore, it “a fortiori does not classify individuals” impermissibly. Applying the political structure analysis, the Ninth Circuit determined that Section 31 was constitutional because the law “addresse[d] in neutral-fashion race-related and gender-related matters.” Section 31 prohibited preferential treatment, the court held, not “equal protection rights against political obstructions to equal treatment.”

Present case. The plaintiffs in the present case are California high school and college students who allege that Section 31 violates the Equal Protection Clause of the Fourteenth Amendment and causes the unfair exclusion of African American, Latino, and Native American students from higher education. The students sought to enjoin California Governor Edmund G. (“Jerry”) Brown and Mark Yudof, President of the University of California, from enforcing Section 31.

After Section 31 became law, the University ceased considering race or sex in student admissions. The year after Section 31 passed, the number of African American, Latino, and Native American freshmen at UCLA and U.C. Berkeley dropped by over 50 percent. The U.C. Regents have attempted to mitigate the drop in underrepresented minorities by adopting a “comprehensive review” of applicants, utilizing different standardized tests, admitting the top 4 percent of graduates from any high school, and decreasing the weight of standardized tests. The plaintiffs alleged that these measures have had only a minor impact on the number of underrepresented minority students.

Equal Protection. The Ninth Circuit concluded that the students’ claims were precluded by the court’s binding precedent in Wilson. The students argued that Section 31 is unconstitutional under a conventional equal protection analysis because it allows admission officials to depart from the university’s baseline admission criteria for any purpose— veteran status, income, geographical background, athleticism, or legacy — but not for “racial diversity” or to address “de facto racial segregation and inequality.” The plaintiffs asserted that, as a result, Section 31 drives down minority admissions and treats African American, Latino, and Native American students unequally from their Asian American and white counterparts.

In addition, they argued that Section 31 is unconstitutional because it created an unequal political structure that prevents racial minorities from “using the normal democratic process to seek votes by the [U.C.] Regents to reverse . . . [the] ban on affirmative action in admissions.” While other individuals and groups may petition the U.C. Regents to change the admission policy, African Americans, Latinos, and Native Americans must persuade the electorate to repeal or amend Section 31.

However, the Ninth Circuit noted that its prior decision in Wilson dealt with and rejected both of these arguments. As detailed above, in Wilson, the Ninth Circuit held that Section 31 did not violate the Fourteenth Amendment under either conventional equal protection analysis or under a political-structure equal protection analysis.

The plaintiffs argued that Wilson was inapposite because it was a facial challenge of Section 31, whereas the plaintiffs here brought an as-applied constitutional challenge. They further argued that the Wilson decision did not contemplate Section 31’s effects on higher education. Yet, the Ninth Circuit here found that the Wilson court considered the very scenario the plaintiffs now allege. In Wilson, the court accepted without question the district court’s findings that Section 31 burdens members of insular minorities who otherwise would seek to obtain race-based and gender-based preferential treatment from local entities. The district court made specific findings regarding the effects Section 31 would have on higher education and expressly found that the number of African American and Native American students across the university would fall by as much as 50 percent. These factual findings by the district court in Wilson were in line with the facts alleged in the present case, and the Wilson court clearly relied on the district court’s findings. Accordingly, the plaintiffs’ contention that Wilson did not address, and therefore does not foreclose, their as-applied equal protection challenge failed.

Even though Wilson was binding precedent, the plaintiffs asserted that it was irreconcilable with the U.S. Supreme Court’s 2003 decision in Grutter v Bollinger (84 EPD ¶41,415) in which the High Court upheld the University of Michigan’s consideration of race in its law school admissions. However, on that same day, the Court held that the university’s use of race as a factor in its undergraduate admissions policy violated the U.S. Constitution (Gratz v Bollinger; 84 EPD ¶41,416). In the Grutter and Gratz cases, white students who claimed they were qualified but denied admission challenged the university’s law school and undergraduate admissions systems on equal protection grounds. Applying strict scrutiny, the High Court found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but that the undergraduate policy was not.

Disagreeing with the plaintiffs here, the Ninth Circuit found that Wilson and Grutter were easily reconciled. Grutter upheld as permissible certain race-based affirmative action programs, but it did not hold that such programs are constitutionally required, the Ninth Circuit explained (court’s emphasis). Moreover, because Grutter spoke only to whether race-based affirmative action programs are permitted, and not to whether they can be prohibited as was the case in Wilson, the Ninth Circuit found it “impossible” to hold that Grutter overrules Wilson.

Similar ballots initiatives. California’s Prop. 209 is similar to ballot initiatives that have since been passed in Washington state (1998), Michigan (2006), Nebraska (2008), and Arizona (2010). Colorado, in contrast, became the first state to reject an anti-affirmative action ballot measure in the November 2008 election. A similar ban is slated to appear on the Oklahoma ballot in 2012.

“The usual suspects.” Some of the advocacy groups involved in the present case are reoccurring characters in ongoing affirmative action saga. All of the ballots measures listed above were spearheaded by California businessman Ward Connerly, founder and president of the American Civil Rights Institute (ACRI). In January 2012, the New York Times reported that Jennifer Gratz — the plaintiff in Gratz v Bollinger — has accused Connerly of mismanaging, and exploiting for his own benefit, donations made by supporters to ACRI. Following the Supreme Court’s ruling in her case, Gratz worked as part of Connerly’s organization to get the anti-affirmative action measure on the ballot in Michigan and other states.

Both Connerly and ACRI were permitted by the district court to intervene in the present case and were represented by the Pacific Legal Foundation, a conservative/libertarian public interest litigation firm that has successfully represented proponents of Section 31 in other cases, including Coral Constr, Inc v City & County of San Francisco (CalSCt (2010); 93 EPD ¶43,961) and Hi-Voltage Wire Works, Inc v City of San Jose (CalSCt (2000); 76 EPD ¶46,134).

An advocacy group on the other side, the Coalition to Defend Affirmative Action, Integration & Immigrant Rights & Fight for Equality By Any Means Necessary (BAMN), who joined with the students as a plaintiff in the present case, has successfully challenged the similar affirmative action ban in Michigan as it applies to race-conscious admissions policies in public colleges and universities. In 2011, the Sixth Circuit, in Coalition to Defend Affirmative Action v Regents of the Univ of Mich (94 EPD ¶44,211), ruled that the Michigan ban violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. BAMN says it will appeal the Ninth Circuit’s April 2, 2012 decision, issued by a three-judge panel, to the full Ninth Circuit.

Pending Supreme Court case. In its October 2012 term, the U.S. Supreme Court will again address the use of affirmative action in university admissions in Fischer v University of Texas at Austin (Dkt No 11-345). The issue presented in Fischer is whether the High Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter, permit the University of Texas at Austin’s use of race in undergraduate admissions decisions. On October 19, 2011, the Pacific Legal Foundation filed an amicus brief in that case.