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Affirmative Action on Life Support


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affirmative-action-on-life-supAmerican Spectator:

Monday was a banner day in jurisprudence: On that morning, the Ninth Circuit Court of Appeals -- the most overturned Court of Appeals in the nation -- actually got one right.

In a ruling that relied more on precedent than on new analysis, the court's three-judge panel determined that California's ban on the use of race as a criterion in college admission was constitutional (both under the state and federal constitutions), notwithstanding that ending affirmative action caused a 50 percent drop in the number of minority students enrolled at UC Berkeley and UCLA.

The court addressed this same question in the 1997 case of Coalition for Economic Equity v. Wilson. In that opinion, in which they originally found the ban on affirmative action constitutional, the court was told that ending race-based admissions would cause a dramatic drop in minority enrollment. Thus, making the argument in 2012 that such a drop did indeed happen does not change the analysis.

The judges' ruling was essentially that they are not permitted to overturn the decision of a prior panel of the court given that the facts are essentially unchanged.

The opinion was forceful, including dismissing the plaintiff's claims with prejudice, meaning they cannot be brought back to court, because "it is clear, upon de novo review, that the complaint could not be saved by any amendment."

The California plaintiffs tried to base their claims in part on a 2003 Supreme Court case called Grutter v. Bollinger, in which a 5-4 majority comprising four liberals and Sandra Day O'Connor said that the University of Michigan Law School's use of race as a factor in admissions was permissible. (It was an unusual decision because it was made simultaneously with a 6-3 opinion -- including O'Connor in the majority -- in Gratz v. Bollinger, which invalidated the University of Michigan's undergraduate admissions policy of awarding extra "points" to minorities in the school's formula for admitting students.)Scissors-32x32.png

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