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Will the Ninth Circuit Strike Proposition 209?

By Robyn Hagan Cain on February 14, 2012 | Last updated on March 21, 2019

While most Court-watchers are waiting for a Supreme Court announcement regarding a grant or denial of cert in Fisher v. Texas, the Ninth Circuit Court of Appeals is taking up the university affirmative action issue on its own. Monday, the court heard arguments in Coalition to Defend Affirmative Action v. Brown, a lawsuit challenging the constitutionality of Proposition 209.

Proposition 209 is the 1996 voter initiative that banned racial, ethnic and gender preferences in public education, employment and contracting. Both the California Supreme Court and the Ninth Circuit Court of Appeals have previously upheld the law, reports the Huffington Post, but plaintiffs claim that the court should reconsider its position in light of the Supreme Court’s 2003 Grutter v. Bollinger ruling that upheld race-based admissions at the University of Michigan Law School.

Ralph Kasarda, the Pacific Legal Foundation (PLF) attorney who is representing the Proposition 209 sponsors, argues that the initiative creates a level playing field. "Proposition 209 guarantees everyone's right to be treated fairly and not to be discriminated against based on skin color or gender. Indeed, the Ninth Circuit itself affirmed Proposition 209's constitutionality in a ruling 15 years ago, so the current challenge -- which tries to revive old arguments -- is redundant and baseless," Kasarda said in a PLF statement.

The plaintiffs, however, told the Ninth Circuit Court of Appeals that Proposition 209 has led to a steep drop in black, Latino and Native American students at the state's elite campuses, according to the Huffington Post.

While California students claim that university affirmative action policies should be implemented to reflect the state's diverse population, Texas students are suggesting that a Texas university affirmative action program should be repealed.

In Fisher v. University of Texas, two students are arguing that a University of Texas at Austin race-conscious admissions policy is unnecessary because Texas law provides a race-neutral requirement that graduates in the top 10 percent of their Texas high school receive automatic admission to any public university in the state; that policy has resulted in a diverse student population that exceeds the Grutter standards, according to The Washington Post.

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