New legal challenge mounted to California ban on affirmative action at universities

Calif race-based admissions law challenged anew

SAN FRANCISCO — The law that bars the University of California from considering race in student admissions violates the civil rights of black, Latino and Native American students who are underrepresented at the state’s most prestigious campuses and blocked from seeking redress through the school’s governing board, a class-action lawsuit filed Tuesday alleges.

The federal court suit was brought by the Michigan-based, pro-affirmative action group By Any Means Necessary. It challenges the constitutionality of Proposition 209, a ballot measure approved by California voters in 1996 that prohibited racial or gender preferences in public contracting, education and employment.

A federal appeals court and the California Supreme Court have rebuffed earlier efforts to overturn the 13-year-old law. But Shanta Driver, the group’s lead counsel, said a renewed federal challenge is timely because the U.S. Supreme Court has since issued a pair of rulings upholding some school desegregation programs. The gap between Latino and black high school graduation rates and UC enrollment has grown since Proposition 209 was enacted.

“Thirteen years of a ban on affirmative action in the state of California has left, in particular UCLA and Berkeley, with just pitiably low numbers of black and Latino students,” Driver said.

At the heart of the complaint is the claim that minority students and their parents are being uniquely disadvantaged in violation of their due process rights because Proposition 209 prevented the university’s governing Board of Regents from setting admissions policies that include race, gender and ethnicity, but not other characteristics, as factors.

“You can’t have a white majority create a situation in which the only people who are barred from going to their regents and saying, ‘Adjust the admissions system so more of our sons and daughters can get in’ are black, Latino and Native American,” Driver said.

UC spokesman Ricardo Vasquez said university lawyers were examining the lawsuit but that it was too soon for officials to comment on it. President Mark Yudof has criticized Proposition 209 in the past.

According to the suit, Latino, black and Native American students make up one-quarter of the freshmen enrolled at UC’s nine undergraduate campuses this year — a higher percentage than in 1996. But because underrepresented minorities also comprise a bigger share of all public high school graduates — 48 percent compared with 39 percent in 1996 — their presence at UC schools has not kept pace in the absence of affirmative action, the complaint claims.

Driver said that while a trial judge must first decide whether to hear or dismiss the case, her aim is to get the 9th U.S. Circuit Court of Appeals to take another look at Proposition 209. In 1997, a three-judge panel of the 9th Circuit ruled unanimously to uphold the measure, which was passed by 54 percent of California voters.

Voters in Washington, Michigan and Nebraska have passed laws similar to Proposition 209. A 1996 court order in Texas and a 2000 vote by the Florida Legislature banned the use of race in school admissions in those states.