California Affirmative Action Ban Upheld by Federal Court

Published May 5, 2012

The U.S. Ninth Circuit Court of Appeals has again upheld California’s ban against factoring race, ethnicity, and gender into admitting students to public colleges and universities.

“In general, for the Ninth Circuit to do something sensible is headline news,” said Stephan Thernstrom, a Harvard University professor and race relations expert at the Manhattan Institute. “It’s the most overturned appellate court in the U.S. courts by far. Even they could not find a way to declare Proposition 209 unconstitutional.”

Proposition 209, or the California Civil Rights Initiative, amended the state constitution to prohibit state government from considering race, sex, or ethnicity in employment, contracting, or education. A three-judge panel of the Ninth Circuit first ruled in favor of Proposition 209 in 1997, a year after it became law. Challengers raised the issue a second time several years later, to no avail.

This time, however, affirmative action supporters had new ammunition: the U.S. Supreme Court ruled in favor of colleges using race, ethnicity, and gender in admissions in 2003, and last year the Sixth Circuit Court of Appeals overturned Michigan’s affirmative action ban.

“It’s all over but the shouting,” said Ward Connerly, founder and the chairman of the American Civil Rights Institute and a leading force in Proposition 209’s passage. “And I’m ready to do a little shouting.”

Continued Challenges
Affirmative action proponents, however, are banking on this third time being the charm—or maybe the fourth or fifth, since it is unlikely they will stop bringing lawsuits, Connerly said.

The advocacy group known as BAMN has “fought us everywhere we have gone,” Connerly said.

“It’s a very, very left wing group,” he said. “They live by their ‘by any means necessary’ creed.”

The Sixth Circuit court turned BAMN’s case away before overturning the affirmative action ban in Michigan. Connerly said he believes efforts in California will be no different.

“When you get the Ninth Circuit coming down as strongly as they did on the constitutionality of Proposition 209, a rational human being would say they’ve lost that battle. But [BAMN] can try again with a full Ninth Circuit panel.”

Affirmative Action At an End?
Connerly said the affirmative action movement is on its way out.

“Throughout the country there is a growing awareness that race preference under the guise of affirmative action is probably over,” he said. “It is a dying argument.”

The Supreme Court will rule on affirmative action this year in Fisher v. University of Texas. Connerly said the ruling could go one of two ways. The court could “tighten the screws on the governing factors for the use of race,” or it could rule in favor of Texas’ race-neutral approach to affirmative action. Texas policy is for state universities to admit the top 10 percent of graduating students from a high school.

“They could throw the whole [expletive] thing out and move to a colorblind ethic, which would be my greatest hope,” he said. “But that might be wishful thinking.”

Image by Niall Kennedy.