Panel upholds affirmative-action ban

California law bars using race, ethnicity, sex in public college admissions

LOS ANGELES — Affirmative-action proponents took a hit Monday as a federal appeals-court panel upheld California’s ban on using race, ethnicity and sex in admitting students to public colleges and universities.

The ruling marked the second time the 9th U.S. Circuit Court of Appeals turned back a challenge to the state’s landmark voter initiative, Proposition 209, which was passed in 1996.

Affirmative-action proponents, who had requested that the court reconsider its 1997 decision after the U.S. Supreme Court ruled in 2003 that affirmative action could be used in college admissions, said they would continue fighting.

“We think the decision is wrong,” said Detroit attorney George Washington, who is representing the minority-group students and advocacy groups that filed the latest challenge in January 2010.

Washington said he would ask the full appellate court to review the case since this decision was issued by a threejudge panel.

In its ruling, the court rejected the plaintiffs’ arguments that a new ruling is needed and said the previous decision still applies.

Ralph Kasarda, attorney with the Pacific Legal Foundation who had argued in favor of the ban, said the court’s decision was not surprising since the issue had already been decided. This case was redundant and baseless, he said.

“The bottom line from both decisions by the 9th Circuit — today’s and the ruling 15 years ago — is that California voters have every right to prohibit government from color-coding people and playing favorites based on individuals’ sex or skin color,” Kasarda said in a statement.

At least six states have adopted bans on using affirmative action in state college admissions. Besides California and Michigan, they include Arizona, Nebraska, Oklahoma, and Washington.

Advocates of affirmative action have said such bans lead to the exclusion of minority students and less campus diversity.

In California, the year after the ban was adopted, the number of black, Hispanic and American Indian students at the University of California’s most prestigious campuses — Berkeley and Los Angeles — plummeted by 50 percent, according to the plaintiffs cited in the court opinion.

The university has tried to compensate for the drop in those students by using other admissions criteria, including a “comprehensive review” of applicants, admitting the top 4 percent of graduates from any high school and decreasing the weight of standardized tests, the opinion said.

But affirmative action proponents said the measures have not been enough to boost opportunities for historically excluded minority groups.

Although black, Hispanic and American Indian students constitute about half of California’s high school graduates, they make up only 19.5 percent of the current freshman class at UC Berkeley. Whites make up roughly 30 percent and Asians 48 percent. The remainder is out-of-state students.

“All you have to do is walk into any classroom, and you can just see it. There’s like one black or Latino student,” said Maria Belman, a history major at UC Berkeley and a plaintiff in the lawsuit. “To say that it isn’t a problem is just a lie.”

Belman said the lack of diversity creates a hostile climate to members of minority groups on campus.

“There’s racism in our society,” she said. “You need something to make up for that.”

Backers of affirmative-action bans say that ruling out race, sex and ethnicity criteria guarantees that all applicants are treated fairly and not discriminated against.

The issue has led to protracted legal battles in several states.

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

That decision led to a three-judge panel of the U.S. 6th Circuit Court of Appeals overturning Michigan’s affirmative-action ban last year. The full appellate court, however, has agreed to reconsider the case.

In February, the U.S. Supreme Court agreed to hear another case against the University of Texas, alleging that the use of affirmative action is discriminatory. If the court decides against the university, the ruling could definitively end consideration of race in public university admissions.