Posted on April 3, 2012

Appeals Court Upholds Calif. Affirmative Action Ban

Valerie Richardson, Washington Times, April 2, 2012

A federal appeals court on Monday rejected a bid by minority students to overturn California’s ban on affirmative action in admissions to state colleges and universities, saying the 1996 initiative approved by California voters already had passed the court’s legal muster.

Ralph Kasarda, an attorney for the Pacific Legal Foundation, said that “today’s ruling is good news for everyone who values fairness and equal opportunity.”

“If the people who brought this lawsuit are genuinely opposed to discrimination in university admissions, as they claim, they should be supporting Proposition 209 and its crystal-clear ban on discriminatory policies, not trying to tear them down,” Mr. Kasarda said.

The lawsuit, filed by the liberal group By Any Means Necessary on behalf of more than 40 black and Hispanic students, argued that the court should revisit its 1997 decision upholding the law because 15 years in effect shows discrimination against minority students.

The group argued that black, Hispanic and American Indian students from high school programs that offer insufficient preparation cannot compete effectively for University of California system slots.

A three-judge panel of the 9th U.S. Circuit Court of Appeals disagreed unanimously. It ruled that the earlier court decision “considered the very scenario Plaintiffs now allege” of declining minority enrollment, and thus there is no new case against Proposition 209.


The lawsuit was filed against California Gov. Jerry Brown and the University of California, but Mr. Brown refused to defend Proposition 209, siding with those filing the lawsuit. The initiative was represented instead by the Pacific Legal Foundation and the University of California system’s attorneys.

“He not only refused to defend [Proposition 209], he filed against it,” Mr. Kasarda said. “If the government doesn’t defend the law, it should be very concerning to citizens.”


Proposition 209, sponsored by Ward Connerly, a former University of California regent, prohibits public universities from considering sex, race or ethnicity in their admissions decisions. The measure has survived repeated legal challenges, including two before the California Supreme Court.


In California, critics of affirmative action argue that state universities are in fact admitting more non-Asian minority students than they were when Proposition 209 was passed in 1996.

In 1989, 21.3 percent of freshmen admitted to the University of California system were from such minority groups, according to a 2009 report submitted by the plaintiffs. In 2009, that figure was 25.1 percent.

Supporters of affirmative action, however, counter that this figure is misleading because the share of underrepresented minority students among graduates of California public high schools has grown even faster [-] from 29.6 percent of graduates to 48.4 percent in that period.