PLF attorneys seeking to defend Proposition 209 file motion to intervene in federal lawsuit

Author: Ralph W. Kasarda

Last week, attorneys from PLF representing key supporters of Proposition 209, filed a motion to intervene to oppose a federal lawsuit by activists pushing for a return to race-based preferences in University of California admissions.

Passed by voters in 1996, Proposition 209 – Article I, Section 31 of the California Constitution – outlaws race- and sex-based preferences and discrimination in public education, public contracting and public employment.  But in February, the Coalition to Defend Affirmative Action, Immigrant Rights and Integration and to Fight for Equality by Any Means Necessary (BAMN) filed a lawsuit challenging Proposition 209 under the Equal Protection Clause of the United States Constitution as it applies to the University of California system – even though the Ninth Circuit Court of Appeals has already held that Proposition 209 is constitutional in Coal. for Econ. Equity v. Wilson. 

The new lawsuit alleges that Proposition 209 violates the Equal Protection Clause through two claims.  In the first claim, BAMN argues that Proposition 209 is unconstitutional using a "political structure" analysis used by the Supreme Court years ago in Hunter v. Erickson, and Washington v. Seattle Sch. Dist. No. 1.  However, the Ninth Circuit already carefully considered – and rejected – that precise argument in Coal. for Econ. Equity.  The lawsuit's second claim alleges that Proposition 209 is unconstitutional under a "conventional" equal protection analysis.  But again, the Ninth Circuit has already confronted and soundly rejected the very same argument in Coal. for Econ. Equity, holding that, "there is simply no doubt that Proposition 209 is constitutional."

The lawsuit names Governor Arnold Schwarzenegger, the Regents of the University of California, and U.C. President Mark G. Yudof as defendants.  But both the Governor and the University defendants have shown a reluctance to defend Proposition 209's constitutionality.  In moving to be dismissed from the lawsuit, they are relying primarily on claims of immunity.  And in another PLF case before the State Supreme Court, California Attorney General Jerry Brown sent a brief to the court arguing that Proposition 209 is unconstitutional.  Thus, committed supporters with historical ties to Proposition 209 seek to intervene on behalf of the voters who passed the initiative.  

PLF attorneys filed their motion representing: Ward Connerly, a former U.C. Regent who was chairman of the California Civil Rights Initiative campaign, which led the successful campaign for Proposition 209's enactment at the polls in 1996; the American Civil Rights Foundation, a nonprofit, 501(c)(3) public interest corporation, dedicated to eradicating practices of racial discrimination and preferences by government entities nationwide; and the California Association of Scholars, an affiliate of the National Association of Scholars, composed of professors, graduate students, college administrators and trustees, former Regents of the University of California, and independent scholars committed to rational discourse as the foundation of academic life in a free and democratic society. 

A proposed motion to dismiss has been filed with the motion to intervene.  PLF attorneys intend to establish that the claims in the new lawsuit lack any cognizable legal theory, and must be dismissed.  The hearing on the motion to intervene is set for July 23, 2010.  Follow the case here.