9th U.S. Circuit Court of Appeals upholds UC affirmative action ban

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A panel of the 9th U.S. Circuit Court of Appeals dismissed a challenge to Proposition 209 on Monday, upholding California’s voter-based ban on the consideration of race as a factor in University of California admissions.

The activist group BAMN brought the lawsuit against the UC Board of Regents and the state in January 2010. U.S. District Judge Samuel Conti dismissed the complaint for failure to state a claim later that year. The group then moved to the 9th Circuit to appeal the decision, where a three-judge panel upheld the dismissal Monday.

The panel cited a 1997 case in which three 9th Circuit judges ruled that Proposition 209 was constitutional as a reason for its decision, in its opinion.

“The bottom line is that (the 1997 decision) remains the law of the circuit, and the district court faithfully applied it,” the opinion states.

According to Ronald Cruz, attorney and organizer for BAMN, the organization will move forward with its efforts by appealing Monday’s decision to the full 9th Circuit by April 16.

Currently, the UC admissions process requires a “holistic review” of all applicants, but is forbidden by law to consider race in admissions decisions. Although BAMN challenged the proposition as it applies to UC campuses, if its appeal is successful it will also challenge the proposition’s ban on affirmative action in California public institutions as a whole, Cruz said.

Matt Williams, organizer for BAMN and candidate for president of the ASUC — UC Berkeley’s student government body — with the Defend Affirmative Action Party, said that although BAMN hoped the court would hear the case, the organization was not surprised with the panel’s decision.

“When we went to the court hearing, we got the feeling that they weren’t going to take the case, although we were hoping,” he said.

In addition to BAMN’s legal efforts, Williams said the group will continue to focus its energy toward building a social movement around the issue.

“We believe mass action is the only way to win a social movement struggle, so that’s what we focus on,” he said.

In a Monday press release, BAMN cited a similar series of events that took place in Michigan, where a panel of judges originally granted an appeal to overturn the state’s affirmative action ban in July. However, a full 6th Circuit hearing that took place in March may overturn the panel’s decision.

“The full Ninth Circuit should grant review because the issue is at least as important in California as it is in Michigan,” said BAMN attorney George Washington in the press release.

Proposition 209 has long been contentious on UC campuses, igniting controversy through events such as the satirical “Increase Diversity Bake Sale” held by Berkeley College Republicans last September to protest the affirmative actionlike bill SB 185.

According to Williams, BAMN, in partnership with the Defend Affirmative Action Party, will move forward with its efforts by holding a Friday rally on Sproul Plaza to demand that the UC immediately double minority enrollment.

Jessica Rossoni covers higher education.