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California Affirmative Action Ban, Proposition 209, Challenged In Court

By TERENCE CHEA 02/13/12 07:55 PM ET AP

SAN FRANCISCO — Backers of affirmative action asked a federal appeals court Monday to overturn California's 15-year-old ban on considering race in public college admissions, citing a steep drop in black, Latino and Native American students at the state's elite campuses.

A three-judge panel of the U.S. 9th Circuit Court of Appeal heard arguments in the latest legal challenge to Proposition 209, the landmark voter initiative that barred racial, ethnic and gender preferences in public education, employment and contracting.

The affirmative action ban has withstood multiple challenges since voters approved it in 1996, but advocates say their campaign to overturn it has been bolstered by recent court decisions, as well as support from Gov. Jerry Brown.

Dozens of minority students backing the plaintiffs filled the courtroom for the hour-long hearing, when the justices questioned whether they should tamper with a 1997 ruling in which the same appellate court upheld Proposition 209.

Attorneys for the plaintiffs said affirmative action is needed to increase racial diversity at the University of California's most prestigious campuses and professional schools. Data shows that UC's efforts to enroll diverse student populations without considering race have failed, they argued.

"What you see before you is a new form of separate and unequal going on right before our eyes," plaintiffs' attorney George Washington told the three male justices.

Ralph Kasarda, who is defending Proposition 209, told the justices that the San Francisco-based appellate court was correct when it upheld the affirmative-action ban. He called the current challenge "redundant and baseless."

"Proposition 209 guarantees everyone's right to be treated fairly and not be discriminated against based on skin color or gender," said Kasarda, an attorney for the Pacific Legal Foundation, which represented the sponsors of the 1996 ballot measure.

The complaint was filed in January 2010 by several dozen minority students and advocacy groups who say the ban violates the civil rights of black, Latino and Native American students. Those groups make up about half of California's high school graduates, but much smaller percentages at UC's most competitive campuses.

For example, at UC Berkeley, the current freshmen class of California residents is roughly 1 percent Native American, 3.5 percent black, 15 percent Latino, 30 percent white and 48 percent Asian, according to UC data.

"As a state-serving institution, the university should reflect the demographics of California, and right now it doesn't," said Magali Flores, 20, a third-year Latina student majoring in ethnic studies at UC Berkeley. "Prop. 209 wants to pretend that race isn't real."

The court agreed to hear the case after U.S. District Judge Samuel Conti dismissed the lawsuit in December 2010. The California Supreme Court has twice ruled that Proposition 209 is constitutional.

Advocates say justices need to reconsider in light of recent court rulings on the issue.

In 2003, the U.S. Supreme Court ruled the University of Michigan Law School could consider race in admissions decisions to promote campus diversity.

Last year, a three-judge panel of the U.S. 6th Circuit Court of Appeals cited that ruling when it overturned Michigan's affirmative action ban. The full appellate court has agreed to reconsider the case.

Brown joined the plaintiffs in arguing the affirmative action ban is unconstitutional.

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Filed by Leigh Owens  |