- The Washington Times - Monday, 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 bottom line is that Wilson II remains the law of the circuit, and the district court faithfully applied it,” the three judges ruled.

Donna Stern, By Any Means Necessary’s national coordinator, said the group would file to have the case heard by the entire court. The organization is working to build popular support for affirmative action through protests and public-education events, she said.

“Obviously, we wish it had gone the other way,” Ms. Stern said. “Really, in order to win these cases, it’s going to take a mass movement, including occupations and sit-downs, demanding that admissions procedures and policies change to provide opportunity for Latino, African-American and Native American students.”

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.”

Mr. Brown also has refused to defend in court another voter-approved initiative, Proposition 8, the measure against same-sex marriage, which has been represented by ProtectMarriage.com.

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.

Mr. Connerly praised the court’s decision in a statement, calling it “a resounding reaffirmation of several prior court decisions which concluded that equal treatment is solid law, and is consistent with America’s color-blind ideals.”

A fresh round of lawsuits involving affirmative action at public universities is now reaching the top federal courts.

A three-judge panel of the 6th U.S. Circuit Court of Appeals recently overturned Michigan’s law against affirmative action, a carbon copy of California’s Proposition 209. The full court heard oral arguments in March after the ruling was appealed.

Meanwhile, the Supreme Court is considering a challenge to the University of Texas’ admissions policy, which added race as a factor that may be used in considering applications in 2003, following a high court decision that declared such measures permissible.

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.

“That’s the Ward Connerly line that the percentage has actually increased,” Ms. Stern said, though she continued that, “it has not kept up with the demographic growth overall. The gap between the number of underrepresented minority students graduating and the number getting into these universities is worse. And unless something changes, it’s going to get much worse.”

Her organization advocates eliminating standardized test scores as a criterion for admissions, among other changes.