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COALITION TO DEFEND AFFIRMATIVE ACTION v. BROWN
674 F.3d 1128 (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; 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,
v.
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.
Nos. 11-15100, 11-15241.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted February 13, 2012.
Filed April 2, 2012.
George B. Washington (argued), Shanta Driver (argued), Detroit, MI, and Ronald Cruz, Oakland, CA, Scheff, Washington & Driver, P.C., for the plaintiffs-appellants.
Antonette B. Cordero (argued), Office of the California Attorney General, Los Angeles, CA, and Andrew W. Stroud and Margaret C. Toledo, Mennemeier, Glassman & Stroud LLP, Sacramento, CA, for defendant-appellee Governor Edmund G. Brown, Jr.
Anthony T. Caso, Law Office of Anthony T. Caso, Orange, CA, for amici curiae Center for Constitutional Jurisprudence and California Association of Scholars.
James S. Detamore, Mountain States Legal Foundation, Lakewood, CO, for amici curiae Mountain States Legal Foundation and Center for Equal Opportunity.
Michael Rosman, Center for Individual Rights, Washington, D.C., for amicus curaie Center for Individual Rights.
David R. Cole, the Arizona Attorney General's Office, Phoenix, AZ, for amicus curiae State of Arizona.
Kenneth C. Yeager, Drociak, Yeager & Associates, Los Angeles, CA, for amici curiae Los Angeles NAACP and California Branches.
Winifred V. Kao, Asian Law Caucus, San Francisco, CA, for amicus curiae California Social Science Researchers and Admissions Experts.
Before: A. WALLACE TASHIMA and BARRY G. SILVERMAN, Circuit Judges, and MARVIN J. GARBIS, Senior District Judge.*
Opinion by Judge SILVERMAN; Partial Concurrence and Partial Dissent by Judge TASHIMA.
OPINIONSILVERMAN, Circuit Judge: 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 BACKGROUNDThe 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.
* The Honorable Marvin J. Garbis, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation.
1. The Supreme Court appears poised to reconsider whether race-based affirmative action programs are even permissible at all. On February 21, 2012, the Court granted certiorari in Fisher v. University of Texas, No. 11-345, ___ U.S. ___, 132 S.Ct. 1536, ___ L.Ed.2d ___, 2012 WL 538328 (U.S. Feb. 21, 2012). The question presented is: "Whether... [its] decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter ... permit the University of Texas at Austin's use of race in undergraduate admissions decisions."
1. Proposition 209, upon its approval by the California electorate, became Cal. Const. art. I, § 31 (hereinafter "§ 31").
2. In certain circumstances, private litigants may also bring suit to enforce § 31. See Cal. Const. art. I, § 31(g) ("The remedies available for violations of this section shall be the same... as are otherwise available for violations of then-existing California antidiscrimination law.").
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