A pro-affirmative action coalition hosted a forum Tuesday night to address the legal issues of a lawsuit it has filed against Proposition 209 — a California law that bans public institutions from considering race, sex and ethnicity in, among other things, the college admissions process.
Shanta Driver, lead attorney for the lawsuit and national chair of BAMN, spoke Tuesday in Wurster Hall about the history of affirmative action and the future of its potential reinstatement in the UC system. The coalition has filed a lawsuit against the proposition in an attempt to reinstate affirmative action in admission processes in California public universities.
“In (affirmative action’s) absence, we’re seeing a resegregation in public universities in California and in other states with this ban,” Driver said.
She said that the lawsuit parallels arguments used to fight Michigan’s equivalent of the proposition. In July, the Sixth Circuit Court of Appeals overturned Michigan’s Proposition 2, ruling that the ban on Michigan public universities considering race and sex in admissions was unconstitutional.
Driver, who also argued against Michigan’s proposition, said that the lawsuit against California’s proposition rests on two basic premises that proved successful in Michigan.
The first argument states that Proposition 209 is “intentional discrimination because the people who brought in the legislation knew it would lead to the expulsion of minorities in admissions,” she said.
UC Berkeley School of Law professor Jesse Choper said that in order to repeal the ban, the lawsuit must prove that there was some illicit purpose involved beyond simply restoring the status quo that existed before the affirmative action programs.
The lawsuit’s second argument states that Proposition 209 denies minorities access to the political process of administration. Driver said that if racial groups request a change in admissions policy from the UC Board of Regents, the board cannot comply without breaking the law.
“There is no federal constitutional requirement that you have to have affirmative action — all it says is that you cannot discriminate,” Choper said.
On Saturday, Gov. Jerry Brown vetoed SB 185, a bill that would have put race and gender back into the admissions process at the UC and CSU systems, stating in his veto message that it is in the purview of the courts to decide the future of the proposition.
The lawsuit will appear in the Ninth Circuit Court of Appeals and depending on the decision may reach the U.S. Supreme Court.
“The Supreme Court I am confident will not agree on (the lawsuit’s) position and will hold that 14th Amendment’s equal protection clause allows a ban on discrimination processes,” said UCLA law professor Richard Sander.
However, members of the coalition are optimistic about the lawsuit’s fate in the Supreme Court.
“Justice (Anthony) Kennedy is the only one whose vote is unknown,” Driver said. “The question is does he want to be the guy that imposed the new Jim Crow? I think we can convince him that that’s not a good legacy to have.”
BAMN is hosting a Day of Action at UC Berkeley Nov. 3 to overturn Proposition 209 because the mobilization of students is essential to the success of the lawsuit, she said.
“In California there is Jim Crow across the board, and losing would be like our generation’s Plessy v. Ferguson and winning would be like our generation’s Brown v. Board of Education,” Driver said.