Affirmative Action Under New Review

Fourteen years after Proposition 209 banned affirmative action in California in 1996, a primarily student-based coalition called “By Any Means Necessary” is filing a class-action lawsuit — which names Gov. Arnold Schwarzenegger and UC President Mark Yudof as defendants — to overturn Prop. 209 and reinstate affirmative action in California’s public schools.

The lawsuit, filed on Feb. 16, argues that Prop. 209 is unconstitutional, as it violates students’ 14th Amendment rights by mandating separate and unequal procedures for minority students. The legal brief states that Prop. 209 was “specifically intended to decrease or hold down Latina/o, black and Native-American enrollment.”

“We can’t allow the separate and unequal conditions that are not only continuing in California, but which are legally in place, and legally codified with Proposition 209,” Northern California Coordinator of BAMN Yvette Felarca said.

If successful, the lawsuit would allow public schools — like the University of California — to reinstate affirmative action. It would not, however, guarantee any university action. According to Steve Montiel, a spokesman for the University of California Office of the President, it is too early in the lawsuit to reopen the discussion of affirmative action. He said the university will consider reinstating affirmative action in the future, if the lawsuit is successful.

“If this opens up another discussion, that’s well and good, but as long as Proposition 209 is the law, we’re obliged to follow it,” Montiel said.

According to Ronald Cruz, a prosecuting lawyer with Scheff, Washington & Driver, P.C., the policies put in place by Prop.. 209 lead to segregated universities.

“The experience of California has proven that this is just an untenable social policy, because one of the results is that the UC system — after trying everything, including considering socioeconomic class — has not increased the number of black, Latino or Native-American students in the campuses,” Cruz said. “And at many UC campuses, there is a permanent de facto segregation as a direct result of Proposition 209.”

Opponents of affirmative action have argued that standardized tests like the SAT, alongside GPAs, provide an even playing field by which colleges can judge all applications. Felarca also said that opponents of affirmative action often believe that if students are accepted to a university based on a combination of race and academic achievement, they may be less equipped to handle their chosen college’s curriculum.

According to Felarca, these arguments are unjustified, and perpetuate low representation of minorities at California’s public universities.

“The criteria that opponents of affirmative action try to use to justify the exclusion of black and Latino and Native-Americans — and also poor students of all races — are completely biased and racist,” Felarca said. “[The SAT exams] are not accurate measures or objective measures of their intelligence. And, of course, grade-point averages are so subjective, and so weighted in favor of students who have had more access to AP classes and honors classes. And that isn’t the reality of the state of California — that all students have equal access.”

According to Cruz, the legal climate has changed significantly in BAMN’s favor since Prop. 209 passed in 1996. The 2003 Supreme Court case Grutter v. Bollinger declared on a federal level that affirmative action was not only legal, but also necessary to reverse racial injustices. This set a clear precedent, Cruz said, in favor of affirmative action, though the decision did not mandate that states adopt the policy.

“The Supreme Court said that these measures are completely constitutional and, on top of that, serve a national interest,” Cruz said.

In addition, the strength of the new student movement that protested the 32-percent fee hikes helped convince BAMN that now was the time to file this lawsuit, Felarca said.

“The student movement that has been built on the campuses — especially in the past semester, around defending public education, and higher education, and against the fee hikes and budget cuts — has completely strengthened the possibilities of winning,” Felarca said. “In the end, this lawsuit is an extension of that movement.”

Readers can contact Hayley Bisceglia-Martin at [email protected]