California Affirmative Action Ban, Proposition 209, Challenged In Court

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.

Comments

[Lindsey Marie]

01:58 AM on 02/18/2012

This makes me sick.

[BiggpussJr]

04:02 PM on 02/16/2012

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.

Sounds like the only one not complaining are the Asian students. FORTY EIGHT PERCENT ASIAN?

[Iconcoclast]

01:39 PM on 02/16/2012

Heh. So racism--as exemplified by racial quotas--is constitutional in the plaintiff's minds. Orwell would be proud.

[James Haun]

03:22 PM on 02/15/2012

make the grade = acceptance...that should be the only criteria

[becut]

06:38 PM on 02/15/2012

In response to ------"First, I have no guilt because I didn't take part in these action from over 150 years ago. Second, what part of the bill are they getting -- you didn't answer."

Africans had no idea what was in store for their fellow brothers and sisters and had no way of verifying what was happening. The type of slavery in America had never been seen before; total dehumanization (treated like animals / chattel). Previously in history slaves were simply workers; they went home to their families, families were not destroyed, and it was not passed on generation after generation.

This country, the United States, gets the full bill for 350 yrs of free labor; African Am built this country; the White House and entire Capital Hill area, the Ivy League Universities that now deny them entrance (for Legacy admittance), cleared the trees, cleared the lands, built the structures, with bare hands, that created wealth for this country, all for free.

You see this is why Asians need to attend school with a diverse population.......because otherwise they end up being ignorant.........simply knowing math and english does not make you smart................you appear to have no social awareness...........just plain stupid.

[James Haun]

10:26 AM on 02/16/2012

when they saw them loaded into boats, what did they think was going to happen? colonial disneyland? get real! good luck with delivering that bill to people who have been dead for hundreds of years...and I'm not Asian, but you wouldn't care. you just want to rant about the white devils. have a great day!

[Iconcoclast]

01:45 PM on 02/16/2012

"Africans had no idea what was in store for their fellow brothers and sisters and had no way of verifying what was happening. "

And they didn't care any more than the Arabs and others cared.

"The type of slavery in America had never been seen before; total dehumaniza­tion (treated like animals / chattel). "

Absolute rubbish. Look up serfs. Look up slavery in Asia and elsewhere. Children of slaves in Rome were also slaves, who were bought and sold regardless of their family status.

As for your so-called bill--you can stick it where the sun doesn't shine. Hundreds of thousands of Union deaths paid that bill with interest.

[becut]

06:47 PM on 02/15/2012

Pt. 2 -

African Americans just received the right to vote in 1965; they have only been able to move where they could afford since MLK death; Institutional Racism - policies, politics (look at congress and the senate), educational system (information about Af Am are not in the books only European info for 12 yrs), lending practices, jobs are limited, etc.

This is why you Asians really need an education in diversity................with a room full of nothing but Asians, this is what you get..............no new perspectives, just stupidity. I would think you would want to attend college to be enlighten and not misled, but based on your statements you have a lot of work to do.

[RutherfordLaser]

07:24 PM on 02/15/2012

The tireless internet forum champion for equality and diversity seems to think Asians are all stupid.

My irony meter has broken and I fear no amount of affirmative action can repair it.

[vx2454]

12:20 AM on 02/16/2012

Got to tell you you are wrong Asians are not just one race but over 60 different races,cultures,and nations. It is your ignorance you need to fix!

[AmericanItalian]

02:51 PM on 02/15/2012

Well so much for equal rights. I thought that we were trying to be a country of color blind and equality. But when you put into place policies such as Affirmative action that takes some ones race into account then it is no longer equal.

[becut]

07:24 PM on 02/15/2012

What are you talking about? White people in this country have always had Affirmative Action. No one wants to discuss that. I wonder why? With so much wealth in the hands of many White folks (inherited wealth created due to unfair laws to deliberately keep Blacks oppressed), you probably believe it is normal for you to have all this "ILL GOTTEN GAIN". If you will not repair this your children will or your children's children will.............the debt to Black folks will be paid one day, because what goes around comes around.

[AmericanItalian]

08:33 PM on 02/15/2012

OMG. give it a break. the debt to black folks my foot. Blacks were oppressed for years there is no disputing that but how dare you think that my generation and the ones that come after me, who have done nothing wrong to other races be punished for those sins of our ancestors..... Thinking it's OK to take from my children to give to someone who hasn't earned it is completely absurd. Thinking that you are owed something you didn't earn is one of the biggest problems in this country. I'm a 2nd generation born American. My grandparents immigrated to this country during the great depression. They struggled and worked hard to feed their kids. They were not handed anything nor did they accept anything they did not earn..... There is no debt to be paid. There are no reparations due. I don't have any of that wealth either but that doesn't mean I deserve any of it.
If you're not the best for the job (no matter what color or race) you don't deserve the job. If you don't have the right grades for a certain school then you do not get to go there. Start at a community college get better grades and earn your way into a University.

[vx2454]

12:23 AM on 02/16/2012

There was white on white racism and discrimination so get off the Blk thing and take some classes in history.

[becut]

01:10 PM on 02/15/2012

A White Man admitting to the generational denial of Whites is due to the need for continued benefits for their children.

Tim Wise - The Pathology of White Privilege

http://www.youtube.com/watch?v=Y2mjvFNOwmc&feature=youtu.be

[Hector Boag]

07:39 AM on 02/15/2012

Seems if a guy or gal is smart enough to make the grade, that should be the only factor considered for school; why keep throwing color or ethnicity into the mix?

[becut]

09:38 AM on 02/15/2012

Environments, economics, and history created unfair advantages that continue to affect families today. Why not take the percentage of the population and use that as a guide for admittance? Blacks are 13% of the population, yet 1% of admitted UC students. Why is this? The people making the decisions are not Black. Applications can be read with a bias for their own kind; they speak the same "lingo". Even SAT scores can be raised by simply taking expensive prep courses, which African Am children do not have the money for. This constant effort to prove intellectual superiority, when obviously only inferior people would hold another group back economically, socially, physically, etc.and steal resources from them to puff themselves up; "Thieves in the Temple".

[wellalwayshavemaine]

10:27 AM on 02/15/2012

But in the year 2012, race alone does not merit special advantage; it merits equal opportunity. Maybe we should focus on disadvantaged people (of all races) instead of focusing solely on skin color?

[Iconcoclast]

01:56 PM on 02/16/2012

Admissions based on merit criteria anger those who do not have the qualifications. Furthermore, being admitted to a school that is too difficult is a disservice to the applicant--they will end up with lots of debt and no degree. This was a problem when racial quotas were allowed in the UC system. Without quotas, students are admitted to the schools at which they are more likely to earn degrees--a much better outcome for everyone.

This is just a frivolous lawsuit.

[becut]

02:41 PM on 02/16/2012

Evidence of discrimination does not justify continued discrimination. Repair for the African American race is deserved and needed. What solutions so you have to repair the damage that has been done? Denials with an un-level playing field causes more damage. No one acknowledges the damage.......................just arguments to continue the damage with "false comparisons" with our abusers and people who side with them so they can inherit the same benefits.

[wca16]

01:06 AM on 02/15/2012

It is hard to comment on which side is correct here. It should be achievement based, but in primary education the playing field isn't level, or will it ever be. Those not admitted feel a sense of disparity, but who doesn't. People live their whole lives working jobs they hate to provide a better life for their children. Sometime we need to evaluate where we are on that ladder to the top, if you aren't there yet make it to where your child can be. That is true progress.

[megsy123]

07:18 AM on 02/15/2012

Agreed, at the same time if you get denied because you are asian, even though you had a better GPA, higher test scores and a more impressive application, wouldn't that just make your blood boil? The problem is either way someone gets the shaft. Neither side is righter than the other.

It most certainly doesn't violate civil rights, however.

[2Murphys]

12:07 AM on 02/15/2012

So will this affirmative action apply to Black colleges as well? Will lower income students that are hispanic, asian, white or middle eastern have preference over black students? If so, will those colleges aggressively recruit the best teachers possible to teach the new influx of diversity?

[HuyKiwi]

08:16 PM on 02/14/2012

A student should be admitted based on achivements, struggles, and work done. Not on skin color.

[edward60]

07:25 PM on 02/14/2012

I think the numbers reflect culture more than anything

[Joey Ismail]

07:11 PM on 02/14/2012

Where are the parents? If my kid came home and said they should be allowed to get into a particular university, not because of their academic achievement but because of the color of their skin, look out. You are not entitled to anything. If hat other kid got better grades, they earned the right to go to that school. You can't fight racism with racist policies. Affirmative action is nothing more than a nice name for bigotry. It needs to be buried along side Jim crow.

[becut]

09:45 AM on 02/15/2012

White people have always had Affirmative Action in this country (education, jobs, housing, business opportunities, etc.)........................now in one area (education) Blacks were given a helping hand for all the many arenas they were kept out of by the US laws and no governmental protection................they want to cry and have every other group gang up against them. Reparations are needed..............pay up America for your wrong doings to generations of Black people (just got the right to vote in 1965), pay up then we will never ask for just a little of the Affirmative Action you Whites have always enjoyed.

[Joey Ismail]

07:00 PM on 02/15/2012

Ill give you three bucks to stop whinning.

[Ashok Hegde]

12:22 PM on 02/16/2012

So, forget whites for a second.

Asians seem to be doing quite well, and they have a long history of exclusion in the US. How is this possible? Asian exclusion leagues existed as recently as 60-70 years ago. Asians were detained during ww2. There's not a history of love for asians, yet they comprise 50% of berkeley's student body. How?

You'll soon arrive at the need for good parents. People who raise their children properly raise the next generation of college grads. People who don't raise their children properly will have the next generation of useless deadbeats.

[Hdaryl01]

06:34 PM on 02/14/2012

If you're ASIAN, you best marry a HISPANIC, AFRICAN AMERICAN, or NATIVE AMERICAN. Then, your children will qualify for affirmative action preference based on your spouse's ethnicity. Asians should absolutely not marry other Asians. Asians are 269% OVER REPRESENTED in enrollment numbers, and will be the first most logical place to cut quotas-assuming logic is at play. Next worse choice is for an Asian to marry a White. Same rules hold true for Whites, notwithstanding that Whites are UNDER REPRESENTED in enrollment numbers.Whites should absolutely not marry an Asian-horrible choice. Nor, should Whites marry other Whites. Hispanics and African Americans should hook up with Native Americans to strategically move up the affirmative action preference ladder.......

[Dizzy Caruso]

04:03 PM on 02/16/2012

To becute and Joey Ismail,,,,,,,,,you two sound like you're married.

[tomdavis]

05:20 PM on 02/14/2012

Let's do some math:

Asians are 13% of California's population and currently 48% of UC students.

Whites are 60% of Caifornia's population and 30% of UC's current enrollment.

Asians are 369% over-represented, while white are 200% over-represented.

If Prop. 209 is overturned, Asians will be 1.84 times as likely as whites to lose places in the UC system.

Looks like Asians are gonna get hosed... again.

[Hdaryl01]

06:24 PM on 02/14/2012

Er.....Whites make up 40.1% of California's population per the 2010 Federal Census. You are correct that white California student enrollment at UC Berkeley in 2012 is 30%. Thus, Whites are UNDER REPRESENTED, not over represented by 10% of total enrollment relative to their demographic percentage. Therefore, 25 +/- % MORE whites should be in the 2012 entering class to accurately reflect demographic parity.

FYI, in reality white enrollment at UC Berkeley wasn't at parity with white California population numbers under affirmative action, and was merely 40.8% in 1997 (the last affirmative action admitted class) while white California population percentage was higher. White enrollment dropped to 35.5% in 2007 and has dropped further to 30% in 2012.

You are correct that Asians are 369% over-represented relative to their demographic numbers.

Prop 209 was passed in 1996 due to discrimination against asians, not whites. No one cares whether or not whites were or are discriminated against. Nor do most HuffPost posters possess the wherewithall to crunch facts. In reality, whites were, have been, and are UNDER REPRESENTED based on population demographic statistics, before, during, and after affirmative action.

[HuyKiwi]

08:04 PM on 02/14/2012

The admissions is colorblind. If they didn't get admitted they didn't meet the standards imposed by the UC system not because they're "white".

[HuyKiwi]

08:11 PM on 02/14/2012

If a student didn't get in it's because he or she didn't make the requirements or standards, not because of skin color (the admissions process is color blind). And in the case of whites being under represented, every were else besides the uc system whites make up the majority of the population (unless it's a historically black college).

[hawhite2000]

05:15 PM on 02/14/2012

I didn't like the tone and the attitude of those who supported Prop 206 in the first place. Many people seemed to come from a place of entitlement where they felt that they deserved to go to a certain school more than someone else. People who apply to school should go in with the basic understanding that if you don't apply soon enough or if you are too close to the minimum requirements, you won't get in. There is no shame in that which is why people should be applying to multiple schools.