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Coalition To Defend Affirmative Action; Integration and v. Edmund G. Brown

April 2, 2012

COALITION TO DEFEND AFFIRMATIVE ACTION; INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY, (BAMN); DEFEND AFFIRMATIVE ACTION PARTY, (DAAP); ISSAMAR CAMACHO; JEREMY BAMIDELE; MARIA BELMAN; JONATHAN BROOKS; CHRISTIAN IVAN BURGOS; MAYRA CASILLAS; BIANCA CENTENO; CALVIN JEVON COCHRAN; ADAN DE LA CRUZ, BY HIS NEXT FRIEND LUIS DE LA CRUZ; OMAR SERAG ELDIN, BY HIS NEXT FRIEND GAMIL SERAG ELDIN; JOSE FLORES; MICHELLE FLORES, BY HER NEXT FRIEND VICTORIA BARRANCO; JENESIS FONSECA, BY HER NEXT FRIEND ANGELICA LEDEZMA; GABRIELA GALICIA; ILIANA GALLAGA; JOSE GARCIA; MIYUKI GOMEZ, BY HER NEXT FRIEND ROSA MARIA GOMEZ; PATRICIA GONZALEZ; ANTHONY KEOKI GRACIA; RABIAH HARRISON; ROSE ANITA HERNANDEZ; ZAIRA HERNANDEZ; DANIEL DE JESUS HERRERA; BRENDA IGLESIAS; 3553 JESSICA JIMENEZ; SARAH KIM; DOMINIQUE LOFGREN; ANTONIO LOVE; NAYELI A. MARAVILLAS, BY HER NEXT FRIEND MARTIN MARAVILLAS; GABRIELA MARTINEZ, BY HER NEXT FRIEND DORA MARTINEZ; JAVIER MEZA; GLADYS MORALES, BY HER NEXT FRIEND ROCIO MORALES; JALIMA MORALES; AISLYN T. NAMANGA; HAN KYUL NOH, BY HIS NEXT FRIEND LUCIA NOH; NICHOLAS OGBUEHI; AURIA PEREZ; MARIA ELENA POLANCO, BY HER NEXT FRIEND ADELA SANTIBANA; JAPHINMA POWER; MERARI RAMIREZ; NANCY J. RODRIGUEZ, BY HER NEXT FRIEND LUCIA CASTILLO; AARON SAMPSON; ANDREW SANCHEZ; DOMINIQUE SHORT-THOMAS; ALEJANDRA SOLIS, BY HER NEXT FRIEND ROSA DESORMAUX; DESIREE TIENTURIER; JASMINE TOVAR, BY HER NEXT FRIEND LUZ TOVAR; BRENDA TRUJILLO; JOSE ROBERTO VALENZUELA; RUBY VILLARRUEL, BY HER NEXT FRIEND OLIVIA VILLARRUEL; JERRICA WEBB; TANISHA WEST; AMBER WILLIAMS, BY HER NEXT FRIEND CARLETTE KING-WILLIAMS; RICARDO ZAZUETA, PLAINTIFFS-APPELLANTS,
v.
EDMUND G. BROWN, JR., IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF CALIFORNIA; MARK YUDOF, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF CALIFORNIA, DEFENDANTS-APPELLEES, AND WARD CONNERLY; AMERICAN CIVIL RIGHTS FOUNDATION, DEFENDANTS-INTERVENORS -APPELLEES. COALITION TO DEFEND AFFIRMATIVE ACTION; INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BY ANY MEANS NECESSARY, (BAMN); DEFEND AFFIRMATIVE ACTION PARTY, (DAAP); ISSAMAR CAMACHO; JEREMY BAMIDELE; MARIA BELMAN; JONATHAN BROOKS; CHRISTIAN IVAN BURGOS; MAYRA CASILLAS; BIANCA CENTENO; CALVIN JEVON COCHRAN; ADAN DE LA CRUZ, BY HIS NEXT FRIEND LUIS DE LA CRUZ; OMAR SERAG ELDIN, BY HIS NEXT FRIEND GAMIL SERAG ELDIN; JOSE FLORES; MICHELLE FLORES, BY HER NEXT FRIEND VICTORIA BARRANCO; JENESIS FONSECA, BY HER NEXT FRIEND ANGELICA LEDEZMA; GABRIELA GALICIA; ILIANA GALLAGA; JOSE GARCIA; MIYUKI GOMEZ, BY HER NEXT FRIEND ROSA MARIA GOMEZ; PATRICIA GONZALEZ; ANTHONY KEOKI GRACIA; RABIAH HARRISON; ROSE ANITA HERNANDEZ; ZAIRA HERNANDEZ; DANIEL DE JESUS HERRERA; BRENDA IGLESIAS; JESSICA JIMENEZ; SARAH KIM; DOMINIQUE LOFGREN; ANTONIO LOVE; NAYELI A. MARAVILLAS, BY HER NEXT FRIEND MARTIN MARAVILLAS; GABRIELA MARTINEZ, BY HER NEXT FRIEND DORA MARTINEZ; JAVIER MEZA; GLADYS MORALES, BY HER NEXT FRIEND ROCIO MORALES; JALIMA MORALES; AISLYN T. NAMANGA; HAN KYUL NOH, BY HIS NEXT FRIEND LUCIA NOH; NICHOLAS OGBUEHI; AURIA PEREZ; MARIA ELENA POLANCO, BY HER NEXT FRIEND ADELA SANTIBANA; JAPHINMA POWER; MERARI RAMIREZ; NANCY J. RODRIGUEZ, BY HER NEXT FRIEND LUCIA CASTILLO; AARON SAMPSON; ANDREW SANCHEZ; DOMINIQUE SHORT-THOMAS; ALEJANDRA SOLIS, BY HER NEXT FRIEND ROSA DESORMAUX; DESIREE TIENTURIER; JASMINE TOVAR, BY HER NEXT FRIEND LUZ TOVAR; BRENDA TRUJILLO; JOSE ROBERTO VALENZUELA; RUBY VILLARRUEL, BY HER NEXT FRIEND OLIVIA VILLARRUEL; JERRICA WEBB; TANISHA WEST; AMBER WILLIAMS, BY HER NEXT FRIEND CARLETTE KING-WILLIAMS; RICARDO ZAZUETA, PLAINTIFFS-APPELLEES, EDMUND G. BROWN, JR., IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF CALIFORNIA, DEFENDANT, MARK YUDOF, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE UNIVERSITY OF CALIFORNIA, DEFENDANT-APPELLANT, AND WARD CONNERLY; AMERICAN CIVIL RIGHTS FOUNDATION, DEFENDANTS-INTERVENORS.



Appeal from the United States District Court for the Northern District of California Samuel Conti, Senior District Judge, Presiding D.C. No. 3:10-cv-00641-SC D.C. No. v. 3:10-cv-00641-SC

The opinion of the court was delivered by: Silverman, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted February 13, 2012-San Francisco, California

Before: A. Wallace Tashima and Barry G. Silverman, Circuit Judges, and Marvin J. Garbis, Senior District Judge.*fn1

Opinion by Judge Silverman; Partial Concurrence and Partial Dissent by Judge Tashima

OPINION

Plaintiffs are California high school and college students who allege that section 31 of article I of the California Constitution violates the Equal Protection Clause of the Fourteenth Amendment and causes the unfair exclusion of African American, Latino, and Native American students from higher education. They seek to enjoin Governor Edmund G. Brown and Mark Yudof, President of the University of California, from enforcing section 31. Yudof asserts that he is immune from suit under the Eleventh Amendment and that he is an improper defendant pursuant to Federal Rule of Civil Procedure 21. Although we hold that Plaintiffs' suit against Yudof is not barred by Eleventh Amendment immunity, we also hold that Plaintiffs' equal protection challenge to section 31 is precluded by Coalition for Economic Equity v. Wilson (Wilson II), 122 F.3d 692 (9th Cir. 1997), where we previously upheld the constitutionality of section 31. The district court correctly dismissed the complaint against the governor and Yudof for failure to state a claim.

I. FACTUAL AND PROCEDURAL BACKGROUND

The University of California is a public university system governed by the Regents of the University of California ("U.C. Regents"), a board with "full powers of organization and government," including the authority to set the University's admission policy. Cal. Const. art. IX, § 9. Plaintiffs allege that, as a result of the civil rights movement, the U.C. Regents adopted affirmative action programs to increase the number of African American, Latino, and Native American students. The programs were effective in rapidly and significantly increasing the number of underrepresented minorities.

In November 1996, Californian voters adopted Proposition 209, which amended the California Constitution to provide:

(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(f) For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other ...


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