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Court Says Prop 209 Ban on Race Preferences Still Okay

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By Chris Levister

Proposition 209, the 1996 voter initiative that banned consideration of race in the University of California admissions decisions doesn't violate the Constitution, the Ninth U.S. Circuit Court of Appeals in San Francisco ruled Monday. The ruling is the latest to uphold the ban in a long list of legal challenges seeking to overturn the controversial measure. The ruling upholds a previous decision by the same court in 1997.


The suit alleged that banning racial consideration in admissions to public higher education institutions resulted in the unfair exclusion of minority students and thus violated the Equal Protection Clause of the 14th Amendment. "Proposition 209 has created a racial caste system in which the state's most prestigious schools train mostly white students and students from some Asian backgrounds," said the suit, brought by the Coalition to Defend Affirmative Action and other rights groups.

The suit also criticized the university system for relying too heavily on high school grades and test scores in admissions, saying that discriminates against students from schools without strong honors programs. The suit argued that the court should reconsider the ruling in light of more recent decisions elsewhere in the nation that reinstated affirmative action in college admissions.

The group cited a 2003 U.S. Supreme Court ruling allowing universities to consider applicants' race as a factor in promoting campus diversity and a 50 percent drop in admissions of Latinos, African Americans and American Indians at UC in the first year after Prop. 209 passed.

The group also argued the legislation created unfair barriers by outlawing preferences for minorities and women, while allowing other groups - military veterans, athletes and children of alumni - to seek preferential admissions. But in a terse 3-0 ruling, the Ninth U.S. Circuit Court of Appeals in San Francisco said similar arguments had been addressed and rejected in 1997, when another panel of the court upheld Prop. 209.

The 2003 Supreme Court decision allowed race-based affirmative action in some circumstances, but "it did not hold that such programs are constitutionally required," Judge Barry Silverman said in the appeals court's decision. He noted that the high court has granted review of a Texas case that could lead to a nationwide ban on preferential treatment of minorities.

In Fisher v. University of Texas Abigail Fisher, a white student who was rejected from the University of Texas in 2008 has argued that the university denied her admission because of her race, according to her complaint filed in a lower court. The 209 measure was defended in court by its sponsors, an organization led by former UC Regent Ward Connerly. Their lawyer, Ralph Kasarda of the Pacific Legal Foundation, said Monday's ruling was "good news for everyone who values fairness and equal opportunity." The plaintiffs' organization said it would ask the full appeals court for a rehearing. Connerly, who is African American, led the anti-affirmative action campaign, he says to "purge the nation of its legacy that Blacks are not as smart as other people and require lower standards to be included."

He defended the measure again on its 10-year anniversary saying, "You have to understand that 209 was a departure from a well entrenched race-based method of dealing with our society. By that measurement, the jury is going to be out for a long time." Minority enrollment has risen somewhat since the adoption of UC policies that admit the top 4 percent from each California high school, and to give less weight to applicants' scores on standardized tests.

Still sixteen years after the passage of 209, the dissension has not eased. Proposition 209 has led to a "cascading effect," and increasingly segregated system of higher education in California where less competitive UC eligible students have access to the less selective UC campuses, argues Frances Contreras an Associate Professor at the University of Washington in the College of Education in Leadership and Policy Studies.

"Admission rates for UC Berkeley from 1994-2009 compared to UC Riverside illustrate the

"cascading" that has occurred across the UC system with historically underrepresented students more likely to gain admission to less selective institutions like UC Riverside than flagship institutions like UC Berkeley,” said Contreras. Contreras says that in a time when California's kindergarten through twelfth grade (K-12) population and high school graduating classes have become increasingly multicultural, the UC system continues to fall short of ensuring that their student bodies represent the state population.

According to recent California Department of Education data, in fall 2011, over 51.4 percent of the K-12 population is Latino, yet Chicano/Latino students constituted approximately 16.6 percent of the entire UC system.

"This confirms what many had initially feared when Proposition 209 passed," said Contreras,

The UC looks for tools other than affirmative action to increase diversity, said Steve Montiel, a spokesman for the UC Office of the President. In September 2007, the Board of Regents adopted the University of California Diversity Statement, which broadly redefined diversity to include socioeconomic class, sexual orientation, religious affiliation and abilities or disabilities, among other factors. The statement also acknowledged the need for inclusion of populations that are traditionally underrepresented.

The university also implemented programs designed to reflect the diversity of California, such as the Blue and Gold Opportunity Plan, Montiel said. Although the 1960 California Master Plan for Higher Education and its subsequent revisions stipulate that the top 12.5 percent are eligible for admission to a UC campus, the policy does not stipulate automatic admission to any UC campus. The plan attempts to give access to low-income students and covers all tuition and fees for in-state students whose family earns less than $80,000 a year, Montiel said.

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