Appeals Court Hears Affirmative Action Challenge

The San Francisco-based appeals court rejected a similar challenge in 1997.

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    TK

    Lawyers for 46 minority students and a civil rights group asked a  federal appeals court in San Francisco today to allow them to go forward with  their challenge to a voter-approved ban on affirmative action in University  of California admissions.

        "We're asking that you give the students in this case their day in  court," attorney Shanta Driver told a three-judge panel of the 9th U.S.  circuit Court of Appeals.     The students and the Coalition to Defend Affirmative Action want  the appeals court to overturn a lower court ruling dismissing their 2010  lawsuit and to allow a trial on their challenge to Proposition 209.
        The proposition, a 1996 voter initiative, prohibited government  preferences for minority groups and women in public education, employment and  contracting.
        The students' lawsuit contests only the part of the measure than  bans affirmative action for minority students applying to UC campuses.
        George B. Washington, another attorney for the students, argued,  "It is a special law, directed only at blacks and Latinos."
        In an earlier case, the federal appeals court upheld Proposition  209 in its entirety in 1997.
        But the students contend that circumstances have changed because a  2003 U.S. Supreme Court decision allowed the University of Michigan to  consider race as a one of a number of admissions factors.
        The students also say that courts have never looked at the actual  effect of Proposition 209, which they say has resulted in a sharp drop in the  numbers of blacks, Hispanics and Native Americans at the flagship university  campuses.
        Ralph Kasarda, a lawyer for Proposition 209 sponsor Ward Connerly,  argued that the 1997 appeals court ruling definitively foreclosed the new  lawsuit.
        He told the court that the initiative does not prevent students  from seeking preferences to overcome other factors, such as economic  disadvantages, that might hinder their admission to the university.
        Proposition 209 "is no barrier to the plaintiffs to petition the  University of California to adopt any admissions policy that does not  discriminate on the basis of race," Kasarda told the court.
        The panel took the case under submission after hearing 45 minutes  of arguments and will issue a written ruling at a later date.
        Gov. Jerry Brown has weighed in on the case, asking the court to  reopen the challenge to Proposition 209.
        Deputy California Attorney General Antonette Cordero, representing  Brown, told the court, "We believe Proposition 209 does not level the playing  field."
        Instead, Cordero argued, the measure creates "an unequal political  structure" for minority groups.  

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