Students trying to topple Prop. 209 

click to enlarge Gov. Jerry Brown wants to reopen a challenge against Prop. 209, which prohibits government preferences for minority groups, including in college admissions. - GETTY IMAGES
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  • Gov. Jerry Brown wants to reopen a challenge against Prop. 209, which prohibits government preferences for minority groups, including in college admissions.

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

“We’re asking that you give the students in this case their day in court,” attorney Shanta Driver on Monday 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 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 banning 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 Prop. 209 in its entirety in 1997.

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

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

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

He told the court 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.

Prop. 209 “is no barrier to the plaintiffs to petition the University of California system 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 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 Prop. 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.

Proposition 209

What it means: “The state shall not discriminate against, or grant preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting.”

When it passed: On Nov. 5, 1996, California voters passed Prop. 209 54 to 46 percent to amend the California Constitution by adding Article 1, Section 31.

Legal challenge: The constitutionality of Prop. 209 was challenged, but the U.S. Supreme Court denied further appeal and let it stand Nov. 3, 1997.

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