By Bob Egelko

More than 15 years after California voters approved a ban on affirmative action based on race or gender preferences, a new challenge to Proposition 209 has reached a federal appeals court — and the challengers this time include Gov. Jerry Brown.

Prop. 209 “imposes unique political burdens on minorities” and violates the constitutional guarantee of equal protection, Brown’s lawyers from the attorney general’s office told the Ninth U.S. Circuit Court of Appeals in San Francisco, which will hear arguments Feb. 13.

The suit was filed in 2010 by 46 minority students and an advocacy group. Brown originally was a defendant, but he has switched sides, joining the plaintiffs, who are seeking to allow consideration of race in admissions at the University of California. The suit does not challenge Prop. 209’s bans of race and gender as a consideration in public employee hiring practices and contracting, but a ruling striking down any part of the November 1996 ballot measure would make all of it vulnerable.

Brown has also argued against the constitutionality of Prop. 8, the 2008 initiative that banned same-sex marriage, now awaiting review by another Ninth Circuit panel. As in that case, his stance on Prop. 209 has left defense of the measure to its sponsor, an organization led by former UC Regent Ward Connerly.

Prop. 209 promotes equality, not discrimination, by making sure that all UC applicants “are evaluated on the basis of race-neutral factors, not arbitrary considerations, such as racial distinctions,” Connerly’s attorney, Sharon Browne of the Pacific Legal Foundation, told the court. The case, she argued, was a pointless rerun of a lawsuit that the appeals court rejected in 1997.

Civil rights groups argued in that suit that Prop. 209 was discriminatory because it outlawed preferences for minorities and women while allowing other groups, such as military veterans or UC alumni, to lobby the Legislature or the university for preferential treatment.

A federal judge agreed. But the appeals court said the Constitution “barely permits” race-based affirmative action, and a state has no obligation to allow it.

That ruling, which a San Francisco federal judge cited in dismissing the current suit in December 2010, is clearly an obstacle for the plaintiffs. But they contend the court is free to take another look at the issue in light of some post-1997 developments.

One was a 2003 U.S. Supreme Court ruling that allowed the University of Michigan Law School to consider applicants’ race as a factor in promoting campus diversity, and rejected arguments that any use of race in admissions was unconstitutional. A federal appeals court panel relied on that ruling last July in striking down a Connerly-backed affirmative action ban in Michigan, although the full appeals court has agreed to reconsider the decision.

The other significant factor, Prop. 209’s opponents argue, is the measure’s impact on UC enrollment: a 50 percent drop in admissions of Latinos, African Americans and Native Americans in the first year of its enforcement.

The university responded with steps designed to maintain diversity, such as giving preferences to low-income applicants, giving less weight to standardized test scores and admitting the top 4 percent from every California high school. But the plaintiffs say there has been little progress: The same three minority groups make up nearly half of the state’s high school graduates but only one-fourth of UC students.

Allowing racial-minority status to be a plus factor in admissions is “the only practical way to overcome the consequences of de facto segregation and inequality” reflected in the enrollment figures, the plaintiffs’ lawyers told the court.

— Reach Bob Egelko at [email protected]

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