Ninth Circuit Upholds California University Affirmative Action Ban

The Ninth Circuit Court of Appeals ruled on Monday that California's university affirmative action ban does not violate students' constitutional rights, reports the Associated Press. A three-judge panel unanimously agreed that the Coalition to Defend Affirmative Action's (CDAA) challenge to the state's affirmative action policy was foreclosed by the circuit's 1997 opinion in Coalition for Economic Equity v. Wilson.

California voters approved Proposition 209, an initiative that banned racial, ethnic and gender preferences in public education, employment and contracting, in 1996. Both the California Supreme Court and the Ninth Circuit Court of Appeals previously upheld the law.

Plaintiffs in the current case claimed that the court should reconsider its position based on the Supreme Court’s 2003 Grutter v. Bollinger ruling, which upheld race-based admissions at the University of Michigan Law School, reports The Wall Street Journal.

CDAA told the Ninth Circuit Court of Appeals that Proposition 209 has led to a steep drop in black, Latino and Native American students at the state’s best universities, according to the Huffington Post.

Ralph Kasarda, the Pacific Legal Foundation (PLF) attorney who is representing the Proposition 209 sponsors, said the decision is not surprising in light of circuit precedent.”The bottom line from both decisions by the Ninth Circuit — today’s and the ruling 15 years ago — is that California voters have every right to prohibit government from color-coding people and playing favorites based on individuals’ sex or skin color,” Kasarda said in a statement to the AP.

Judge Tashima, in a special concurrence, noted, “I continue to believe now, as I did when the case was decided, that [Wilson] was wrongly decided.”

University affirmative action will be a hot topic this fall when the Supreme Court hears Fisher v. University of Texas, a Fifth Circuit Court of Appeals case addressing the constitutionality of a race-based admissions policy at the University of Texas at Austin (UT). The outcome in Fisher, however, might not affect the Proposition 209 plaintiffs. The UT case involves a school policy that mandates the use of affirmative action in university admissions procedures, while Proposition 209 is a state constitutional amendment that bans the practice.

We’re pretty confident that CDAA will appeal the Ninth Circuit’s decision to the Supreme Court, so it would be interesting if SCOTUS granted cert to CDAA, and agreed to hear the arguments in tandem with Fisher. How do you think these two university affirmative actions would fare if pitted against one another? Could both survive?

Related Resources:

• Coalition to Defend Affirmative Action v. Brown (Ninth Circuit Court of Appeals)
• Don’t Mess With Texas … University Affirmative Action? (FindLaw’s Fifth Circuit Blog)
• Sixth Circuit Mulls University Affirmative Action Ban (FindLaw’s Sixth Circuit Blog)