Federal Judge Dismisses Challenge to California's Racial-Preference Ban

December 08, 2010

A federal judge has rejected the latest challenge to California's Proposition 209, which bans the use of affirmative-action preferences by public colleges and other state and local agencies. In dismissing the lawsuit on Wednesday, Judge Samuel Conti of the U.S. District Court in San Francisco said the plaintiffs in the case had failed to convince him that the legal landscape has changed enough in recent years to undermine a previous appeals-court decision upholding the state measure.

Proposition 209, an amendment to the California Constitution approved by that state's voters in 1996, survived a legal challenge the year after its passage, when the U.S. Court of Appeals for the Ninth Circuit rejected arguments that it conflicted with the U.S. Constitution's Equal Protection Clause and the Civil Rights Act of 1964.

In a new lawsuit filed in February, an activist group—the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary—argued that subsequent Supreme Court rulings had rendered the Ninth Circuit's 1997 decision obsolete, justifying a challenge to the California measure on some of the same legal grounds used before.

The chief argument revived in the latest lawsuit was that Proposition 209 violated the Equal Protection Clause by placing a distinct set of legal hurdles in front of minority groups seeking to increase their representation at the state's university systems. The Ninth Circuit's ruling, the lawsuit said, should be reconsidered in light of the U.S. Supreme Court's 2003 Grutter v. Bollinger decision, involving the University of Michigan's law school. In holding that colleges could constitutionally use race-conscious admissions policies to produce educationally beneficial diversity if no reasonable race-neutral alternatives were available, the Grutter decision removed much of the uncertainty surrounding the legality of such policies, putting them on the same plane as other admissions preferences routinely used by colleges, the lawsuit said.

The named defendants in the lawsuit were Gov. Arnold Schwarzenegger and the University of California's Board of Regents. Ward Connerly, a former University of California regent who helped lead the campaign for Proposition 209, and the American Civil Rights Institute, which Mr. Connerly established, successfully sought a role in the case as intervening defendants, arguing that Governor Schwarzenegger and the regents could not be counted on to put up a strong fight on behalf of the preference ban.

As intervening defendants, Mr. Connerly and his foundation filed a motion to dismiss the lawsuit.

In granting that motion on Wednesday, Judge Conti said he was not convinced that the Supreme Court's 2003 Grutter decision overruled the Ninth Circuit's 1997 ruling, which he was otherwise bound to regard as binding precedent.

"Grutter does not hold that the Constitution requires the use of race in student admission decisions; rather, it holds that the Constitution tolerates the use of race as one of many admission factors," Judge Conti's ruling said. The Grutter decision even indirectly made reference to Proposition 209, by discussing the race-neutral alternatives to race-conscious admissions developed since its passage, without in any way suggesting that it meant to overrule the California measure, Judge Conti noted.

The group behind the California lawsuit has made similar arguments in challenging a preference ban adopted by Michigan voters in 2006. The Michigan lawsuit is pending in the U.S. Court of Appeals for the Sixth Circuit.

In filing the California lawsuit, George B. Washington, the group's lead lawyer, said he was hoping to throw a wrench into campaigns on behalf of similar measures being mounted by the American Civil Rights Institute. He appears not to have succeeded, however. Arizona voters overwhelmingly adopted a preference ban last month. Their state joins California, Michigan, Nebraska, and Washington State in having such measures on the books.