Calif.’s affirmative action ban again under court scrutiny

California’s controversial 1996 voter initiative, banning affirmative action in education, public hiring or contracting, known as Proposition 209, is again under court scrutiny.

On March 17 a state appeals court approved the Berkeley school district’s voluntary integration plan, concluding that it’s unique plan to consider the racial makeup of a neighborhood, rather than individual students, does not violate the terms of Prop. 209.

Less than a day later, the California Supreme Court asked the state Attorney General, in a separate case, whether Prop. 209’s denial of preferences in government contracting violates federal equal protection principles “by making it more difficult to enact legislation on behalf of minority groups,” according to the order in Coral Construction v. City of San Francisco, S152934.

In that case, the construction company challenged San Francisco’s ordinance providing preferences for minority and female-owned businesses with regard to city contracts.

The decision in the Berkeley case is the first time a state appellate court has approved a school district integration plan since voters approved Prop. 209 nearly 13 years ago. American Civil Rights Foundation v. Berkeley Unified School Dist., A121137 (Calif. 1st Dist. Court of Appeal)

It is almost certain to be appealed to the California Supreme Court and garner national attention from other states that have considered a similar law. Michigan passed a nearly identical law in 2006 and Nebraska voters approved one in the 2008 election, according to Alan Foutz, Pacific Legal Foundation attorney in Sacramento, Calif., who represents plaintiffs in both the Berkeley schools case and the San Francisco contracting case.

The California initiative was unsuccessfully challenged in the federal courts shortly after its passage in 1996.

Of the Berkeley decision Foutz said, “We anticipate appealing to the California Supreme Court. The Court of Appeals took an overly narrow view of using race as a factor in school integration,” he said.

Jon B. Streeter and Benjamin Au of Keker & Van Nest in San Francisco represented the schools.

“This is an important victory for those who understand the importance of a diverse learning environment and believe that opportunity should be equally afforded to all,” according to John Payton, president of the NAACP Legal Defense Fund in New York, in a prepared statement.

Berkeley devised an integration point system that rated small neighborhood areas in the 9,000-student district by racial composition, parents’ income and education levels. The district establishes scores for each neighborhood and makes enrollment decisions based on the ratings. But it does not take into account the race of an individual student in making assignments.

The Coral Construction case was accepted by the state’s high court for review in August 2007 and has been briefed but the added request for the state Attorney General Jerry Brown’s input is new.

“I don’t think this signals anything one way or another about Proposition 209,” said Foutz.

“I’m not sure from a legal point of view that the attorney general’s office is going to come up with anything different than San Francisco has already argued,” he said.

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