Ninth Circuit Rejects Constitutional Challenge to California’s Anti-Race/Sex-Preferences Initiative (Prop. 209)

Coalition to Defend Affirmative Action v. Brown (9th Cir. Apr. 2, 2012) has just rejected a constitutional challenge to California’s ban on race and sex preferences and discrimination in public employment, education, and contracting; the panel followed as binding precedent Coalition for Economic Equality v. Wilson (9th Cir. 1997), which rejected a similar challenge, and rejected the plaintiffs’ proposed distinctions between the two cases. A Sixth Circuit decision, Coalition to Defend Affirmative Action v. Regents (6th Cir. 2011), had struck down a similar Michigan law on the same grounds urged by the plaintiffs here; that decision, though, has been vacated and is now being reheard en banc by the Sixth Circuit. For more on the underlying legal arguments, please see the 1997 Ninth Circuit decision and the Sixth Circuit panel opinion.

I should note that I was one of the legal advisors to the Prop. 209 campaign, and helped draft the initiative (which is now Cal. Const. art. I, § 31). Congratulations to my friends at the Pacific Legal Foundation on the victory.