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Court Upholds California Ban on Race Preferences, Again

A federal appeals court has rejected efforts by a group of California high school and college students to do away with Proposition 209, the 16-year-old state constitutional amendment that bars racial preferences in public education and other areas.

A three-judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, said it was bound by the decision of another panel of that court that upheld the 1996 ballot measure just a year after California voters approved it.

The group of student plaintiffs argued in their suit that Proposition 209 violates the U.S. Constitution's equal-protection clause because it causes the unfair exclusion of African American, Latino, and Native American students from higher education in California.

Just in the year after Proposition 209's adoption, the number of black, Latino, and Native American freshmen at the University of California-Los Angeles and UC-Berkeley dropped by more than 50 percent, court papers say. The University of California system has sought to mitigate the effects of the constitutional amendment by such measures as admitting the top 4 percent of graduates from any California high school, using a more comprehensive review of applicants, and decreasing the weight of standardized tests.

The new challengers sought to bring an "as applied" challenge to the measure in contrast to the facial challenge that was rejected soon after it was adopted. In addition to arguing that Proposition 209 drives down admission of underrepresented minority applicants, the plaintiffs argue that the amendment created an unequal political structure that burdens the efforts of minority group members to change the state's affirmative-action policies.

In its April 2 decision in Coalition to Defend Affirmative Action v. Brown, the 9th Circuit court panel said, "Our prior decision in Wilson II [Coalition for Economic Equity v. Wilson] dealt with and rejected both of these arguments. ... We are bound by Wilson II."

The court also said that the earlier 9th circuit panel decision upholding Proposition 209 was not overruled by the U.S. Supreme Court's 2003 decision in Grutter v. Bollinger, which held that student body diversity is a compelling governmental interest and that narrowly tailored race-based admissions policies are constitutional. Grutter permitted narrow uses of race in education, but it did not bar states from prohibiting them, and language in the 2003 high court decision suggested that California and other states were laboratories for experimenting with alternatives to race preferences.

"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 II, it is impossible to hold that Grutter overrules Wilson II," Judge Barry G. Silverman wrote for the new 9th Circuit panel, which was unanimous on that issue.

Silverman said in a footnote that "the Supreme Court appears poised to reconsider whether race-based affirmative action programs are even permissible at all." The high court has agreed to hear Fisher v. University of Texas at Austin (No. 11-345), which will examine the university's use of race in undergraduate admissions.

The court panel ruled 2-1 that Mark Yudof, the president of the UC system, was not immune from the students' suit under 11th Amendment immunity. But that minor victory was probably little comfort to the student plaintiffs after the 9th Circuit panel went on to reject the main claims in their suit.

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