Tuesday, April 3, 2012
Section 31 of Article IX of the California Constitution - - - Prop 209 passed in 1996 - - - was upheld by a panel of the Ninth Circuit in Coalition to Defend Affirmative Action v. Brown.
The panel's opinion held that the equal protection challenge to section 31 was precluded by a previous Ninth Circuit decision, Coalition for Economic Equity v. Wilson (Wilson II), 122 F.3d 692 (9th Cir. 1997).
The plaintiffs had argued that Wilson II did not govern because it was a facial challenge of section 31, whereas the present action was an as-applied constitutional challenge, focused on higher education. The plaintiffs also argued that Prop 209 did not survive Grutter v. Bollinger (2003). Rejecting both of these contentions, the Ninth Circuit panel affirmed the district judge's conclusion that Wilson II did consider the context of higher education and that Grutter concerned the constitutionality of governmental choices regarding diversity but did not mandate those choices.
However, before reaching the equal protection claim, the panel considered - - - and rejected - - - the state defendants' argument that the Eleventh Amendment barred suit against them in federal court. The partial dissenting opinion by Judge Tashima disagreed on this point.
In a footnote, the panel opinion referenced Fisher v. Texas, stating that the Supreme Court "appears poised to reconsider whether race-based affirmative action programs are even permissible at all."
[image: University of California's ten campuses, via]