BAMN: Complaint to Overturn Proposition 209 and Restore Affirmative Action in California

BAMN Complaint to Overturn Proposition 209 and Restore Affirmative Action in California

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Filed February 16, 2010

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

COALITION TO DEFEND AFFIRMATIVE ACTION, INTEGRATION AND IMMIGRANT RIGHTS AND FIGHT FOR EQUALITY BYANY 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, VERONICA DONERSON, 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, 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 his 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,

vs.

ARNOLD SCHWARZENEGGER, in his official capacity as Governor of the State of California, REGENTS OF THE UNIVERSITY OF CALIFORNIA, and MARK YUDOF, in his official capacity as President of the University of California,

Defendants.

PLAINTIFFS’ COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF (CLASS ACTION)

Pursuant to the Federal Rules of Civil Procedure, the plaintiffs, by and through their attorneys, Scheff, Washington and Driver, P.C., state as follows:

INTRODUCTION

In spring 2006, the Latina/o communities poured into the streets demanding freedom and an end to second-class treatment. Two-and-a-half years later, this new civil rights movement inspired the election of the nation’s first black president. Now, young leaders of the 2006 walkouts attend the University of California and are leading a revived student movement that is fighting against education cuts and for equal opportunities for minority and undocumented immigrant students, demanding that the University rise to its public mission and serve all the people of California.
The plaintiff Latina/o and black students now ask this Court to strike down Proposition 209’s ban on affirmative action at the University of California because Proposition 209 has been the sentry at the gate, denying the plaintiffs the chance for an equal and integrated education as promised by the Fourteenth Amendment, Brown v. Board of Education, and the proudest legal traditions of California and of the nation.
Proposition 209 was an imposition of power by an electorate that was still in its majority white in a state where the population was rapidly changing.
Proposition 209 passed in 1996 simply and solely because the white majority electorate overrode the overwhelming opposition of the Latina/o, black, Native American and Asian voters.
Proposition 209 promised a “color-blind” Constitution. But this was and is a lie.
Proposition 209 has created a racial caste system in which the state’s most prestigious schools train mostly white students and students from some Asian backgrounds while admitting Latina/o, black and Native American students at only a third of their presence among the high school graduates of the state.
As demonstrated by the UC’s own figures, the proportion of Latina/o, black, and Native American students is falling further and further behind the proportion of those students among high-school graduates (Ex 1-3).
The small proportion of Latina/o, black and Native American students at UC’s flagship Berkeley campus, as compared to the state population, is matched only at the flagship universities of the Deep South states of Louisiana, Mississippi, Alabama, Georgia and South Carolina (Ex 4A-4B).
Even for those few Latina/o, black, or Native American students who have run the gauntlet and secured admission to the UC, Proposition 209 has increased racial isolation and racist hostility—profoundly distorting their experience and lessening their chances of attending the UC’s graduate and professional schools.
The UC has, to its credit, attempted to mitigate the effects of Proposition 209—such as considering socioeconomic class, using comprehensive file review, admitting the top 4 percent of every high school, varying the weight of tests and other admissions criteria, considering the opportunities available at one’s high school, etc.—but in report after report, the UC has shown that none of these measures can halt the fundamental trend toward resegregation if Proposition 209 remains in effect and affirmative action remains banned.
In Count One, the plaintiffs assert that Proposition 209 violates the Fourteenth Amendment by forcing minority students and their supporters to sponsor an onerous and almost certainly futile statewide referendum in order to secure the adoption of lawful affirmative action programs. Every other group, however, retains the right to secure a change in admission policies that are in its members’ interest by a simple majority vote of the Regents or their subordinate bodies. By mandating separate and unequal procedures for underrepresented minority students for the adoption of admission policies, Proposition 209 violates the Equal Protection Clause in the most literal and fundamental sense.
In Count Two, the plaintiffs assert that Proposition 209 also violates the Equal Protection Clause because it was specifically intended to decrease or hold down Latina/o, black and Native American enrollment (a) by substantively prohibiting the UC from pursuing racial integration and diversity—while allowing it to pursue every other form of integration and diversity, (b) by prohibiting the UC from taking account in admissions of the massive educational inequality due to race—while allowing it to take account of every lesser form of educational inequality; and (c) by legally requiring the University to apply its existing admission criteria in rigid ways that reflect and magnify de facto segregation and inequality in elementary and secondary education.
Indeed, Ward Connerly, the prime sponsor of Proposition 209, has finally admitted under oath that his goal was that Proposition 209 would administer the “tough love” that minority students supposedly needed in order to force them to work hard enough order to secure admission on “their own merits”—that is, according to merit as determined by a system that Connerly himself admits both incorporates and magnifies the unequal nature of elementary and secondary education.
Thirteen years ago, this Court rightly struck down Proposition 209 because it violated the Fourteenth Amendment by imposing a separate and more onerous political procedure on Latina/o, black and Native American residents. Coalition for Economic Equity v. Wilson, 946 F. Supp. 1480 (N.D.Calif.1996).
However, a panel of the Ninth Circuit reversed and upheld Proposition 209 on the basis of a supposed factual finding—in reality an ideological assumption—that the fight for affirmative action was not entitled to equal political procedures because it was a fight for “racial preferences,” not a fight against racial discrimination. Coalition for Economic Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997), cert. den. U.S. (1997).
This rationale by the Wilson panel echoed the claims of racists from President Andrew Johnson through the Southern segregationists—who have always falsely attempted to label steps toward equality as preferences.
But the Ninth Circuit, with five justices dissenting in support of the district court, denied rehearing without opinion. Id.
The Supreme Court, which was at that time declining the writ in all cases involving affirmative action in higher education, denied certiorari in Wilson as well. Id.
There is not now, and never has been, any factual support for the Wilson panel’s central assumption that the fight for affirmative action was a fight for racial preferences rather than a fight against racial discrimination.
As was true in 1996 and is even truer today, the first of the UC’s two central admission criteria—grade point averages adjusted upward to account for honors and AP courses—reflects the separate and distinctly unequal elementary and secondary education provided to Latina/o, black and Native American students.
As was true and as is even truer today, the UC’s other crucial admission criterion—standardized test scores—both reflect and vastly magnify the effects of de facto segregation and inequality in a myriad of ways that derive from racial discrimination and segregation.
As any fair factual record compiled in this case could demonstrate, the Wilson panel wrongly assumed that the existing admission criteria are “racially neutral,” wrongly labeled the fight for affirmative action as a fight for “preferences,” and wrongly failed to recognize that affirmative action was simply a demand for relief from the otherwise overwhelming preferences that white students and students from some Asian backgrounds otherwise received.
Just as the Wilson panel’s factual assumptions are irreconcilable with reality, its legal conclusions are irreconcilable with what are now the clearly governing standards established in Grutter v. Bollinger, 539 US 306 (2003).
In Grutter, the Court held that for many selective universities, affirmative action programs were the only practical means to further the compelling national interest of ensuring that the “path to leadership is visibly open to talented and qualified individuals of every race and ethnicity.” Id. at 332-33.
The Wilson panel’s central legal foundation—the claim that affirmative action was not a means of ending racial exclusion—is today utterly irreconcilable with the ringing conclusions set forth in Grutter.
Similarly, the Wilson panel’s central assertion that affirmative action in higher education is “barely tolerated” by the Fourteenth Amendment is utterly irreconcilable with Grutter.
Moreover, as California Attorney General Jerry Brown has stated, the Wilson panel’s assertion that it can prohibit the right to fight for all affirmative action plans because some of them may be unlawful is an assertion of states’ rights that is utterly irreconcilable with federal supremacy in general and with the Fourteenth Amendment in particular.
Finally, as is now clear, the central legal premise for the Wilson panel decision—the state’s alleged right to establish a “color-blind Constitution” in all circumstances—is absolutely irreconcilable with later Supreme Court decisions holding that the theory of the “color-blind” Constitution “cannot be a universal constitutional principle” because it is inconsistent with the “history, meaning and reach of the Equal Protection Clause.” Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701, 782-83, 788 (2007)(Kennedy, J).
Grutter and Parents Involved both recognize that de jure segregation is dead, that massive de facto segregation remains, and that state and local governments must be able to take action to overcome de facto discrimination—including by taking, in the circumstances defined be federal law, racially conscious action to overcome it where there are no other practical means for doing so.
Proposition 209’s Tuskegee-like experiment in the so-called “color-blind” constitution cannot change that reality—it can only make it far worse.
The UC Regents have therefore repealed their resolutions, sponsored by Connerly, which proclaimed a color-blind policy in admissions.
Many top UC officials have called for the repeal of Proposition 209.
The Attorney General has informed the California Supreme Court that Proposition 209 violates the Fourteenth Amendment.
But Proposition 209 continues to hang by the thread of the Wilson panel decision.
Just as Plessy’s formula of “separate but equal” provided an increasingly threadbare justification for the de jure segregation in the South, the color-blind constitution provides an increasingly untenable “justification” for the de facto segregation in the University of California.
Just as the nation would have been spared untold suffering if Plessy had been overruled 13 years after it was decided, California and the nation would be spared untold suffering if the Wilson panel decision is abandoned today.
The students ask this Court to strike down Proposition 209’s ban on affirmative action in the UC system because it is utterly irreconcilable with reality, with Brown, with Grutter and with the proudest legal traditions of California and the United States.
The students ask this Court to strike down the old doctrine of Plessy that has resurfaced in the new guise of Proposition 209 so that they can receive the equal and integrated education that Linda Brown and so many others have fought and died for.

JURISDICTION AND VENUE

This is a claim made under the Fourteenth Amendment to the U.S. Constitution and under 42 USC s. 1983. This Court has subject matter jurisdiction under 28 USC s. 1331 and 28 USC s. 1343(3).
The United States District Court for the Northern District of California is a proper venue for this action because a substantial part of the events giving rise to this action occurred in that district.

INTRADISTRICT ASSIGNMENT

A substantial part of the events which give rise to this claim occurred in Alameda County, making assignment to the San Francisco or Oakland Division appropriate under Civil L.R. 3-2(d).

PARTIES

Plaintiff organizations

The plaintiff Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN) is a voluntary unincorporated association organized for the purpose of defending affirmative action and building a new civil rights movement. BAMN’s members include black, Latina/o, Native American, Asian American, other minority, and white students in California and across the country, including many who have applied for or attended the various campuses of the University of California.
The plaintiff Defend Affirmative Action Party (DAAP) is a voluntary unincorporated association composed of students at the University of California at Berkeley which has run candidates for student government at that university and engaged in other political activities in defense of affirmative action.

High school and middle school student plaintiffs

The plaintiff Tanisha West is a black student who will be graduating from Oakland Technical High School and has an application pending for admission to UC Berkeley. She organized her school’s first-ever César Chávez Assembly, and has been a member of the Mayor's Youth Commission and a member of BAMN. She intends to be a creative writing teacher.
The plaintiff Christian Ivan Burgos is a Latino junior at Oakland Technical High School. His parents have a high school level of education. He has a 3.5 GPA and intends to apply to the UC system. If admitted, he would be the first person in his family to attend college.
The plaintiff Mayra Casillas is a Latina senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has an application for admission pending with UCLA. She has a GPA of 3.48 and is a member of the marching band.
The plaintiff Adan de la Cruz, by his next friend Luis de la Cruz, is a Latino senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has applications for admission pending with UCLA and UCB. He currently has a GPA of 3.87 and an SAT score of 1900. He is the president of the Math, Engineering and Science Club (M.E.S.A), a member of the National Honors Society, Drum Major of the Marching Band, a senator for the senior class on the Associated Student Body, and a Peer-to-Peer Mentor.
The plaintiff Omar Serag Eldin, by his next friend Gamil Serag Eldin, is an 8th grade Egyptian American student who attends Martin Luther King, Jr. Middle School in Berkeley. His GPA is 3.0 and he intends to apply to UC Berkeley and UCLA. He trains in martial arts and is a member of BAMN.
The plaintiff Michelle Flores, by her next friend Victoria Barranco, is a Latina senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has an application for admission pending with the UCB. She has a GPA of 3.8 and an SAT score of 1270. She is a member of the Academic Decathlon, president of M.A.Y.A., and a member of TELACU.
The plaintiff Jenesis Fonseca, by her next friend Angelica Ledezma, is a Latina senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has applications for admission pending with UCLA and UCB. She currently has a GPA of 4.02 and an SAT score of 1880. She is the Student Body President of the Associated Student Body - Student Council, a member of the Bible Club and a member of the Boys and Girls Club.
The plaintiff Iliana Gallaga is a Latina senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has applications for admission pending with UCLA and UCB. She currently has a GPA of 4.0 and an SAT score of 1910. She is the historian of the Associated Student Body-Student Council.
The plaintiff Jose Garcia is a Latino senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has applications for admission pending with UCLA and UCB. He currently has a GPA of 3.1 and an SAT score of 1500. He is the President of the Bible Club and a member of the marching band.
The plaintiff Miyuki Gomez, by her next friend Rosa Maria Gomez, is a Latina senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has applications for admission pending with UCLA and UCB. She currently has a GPA of 3.5 and an SAT score of 1300. She is a co-captain of the volleyball team, a member of Latinas Guiding Latinas from UCLA, a member of the California Scholarship Federation, a member of the Bible Club, and a member of TELACU.
The plaintiff Patricia Gonzalez is a Latina senior at John C. Fremont High School, an LAUSD public school, and has applications for admission pending with UCLA and the UCB. She currently has a GPA of 3.9 and is the elected President of her Senior Class, Captain of the Varsity Cheerleading Team, member of the National Honors Society, a Peace Ambassador for “H.E.A.R.T” at her school, adviser for freshmen students in a program called Link Crew, and a member of the Community Coalition.
The plaintiff Daniel De Jesus Herrera is a Latino senior at Theodore Roosevelt High School, an LAUSD public school, and has applications for admission pending with UCLA and UCB. He currently has a GPA of 4.2 and an SAT score of 1560. He is a member of the Math, Engineering and Science Club (M.E.S.A), a member of the Humanities Leadership Club, a member of the California Scholarship Federation, and a member of the baseball team.
The plaintiff Brenda Iglesias is a Latina senior at Bravo Medical Magnet High School, an LAUSD public school, and has applications for admission pending with the UCLA and the UCB; she currently has a GPA of 4.276 and an SAT score of 1860. She is a member of the National Honors Society, the Science Bowl Team, the varsity swim team, the club swim team, and the water polo team.
The plaintiff Jessica Jimenez is a Latina senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has an application for admission pending with UCB. She currently has a GPA of 3.8 and an SAT score of 1400. She is the president of the Mentoring Club, was president of the Bible Club in her sophomore year, and has been and continues to be a member of the UCB Pre-Collegiate for the past two years.
The plaintiff Sarah Kim is a Korean American senior at Bravo Medical Magnet High School, an LAUSD public school, and has applications for admission pending with UCLA and UCB; she currently has a GPA of 4.038 and an SAT score of 2000. She is a member of the National Honors Society, the leader of the Jazz Band Music Ensemble, vice president of the Anti-Defamation League, President of the Los Angeles division of the Achiever Club TAC, member of the California Scholarship Federation, member of the swim team, member of the Korean Club, vice president of the Peace Church Youth Group, and a pianist with the Worshiper Praise Team.
The plaintiff Nayeli A. Maravillas, by her next friend Martin Maravillas, is a Latina senior at Bravo Medical Magnet High School, an LAUSD public school, and has an application for admission pending with UCLA. She currently has a GPA of a 3.0 and an SAT score of 1590, and is a member of the junior varsity debate team.
The plaintiff Gabriela Martinez, by her next friend Dora Martinez, is a Latina senior at Bravo Medical Magnet High School, an LAUSD public school, and has applications for admission pending with the UCLA and the UCB. She currently has a GPA of 3.2 and an SAT score of 1500; she is a representative of the Anti-Defamation League, co-captain of the swim team, a member of Random Acts of Kindness, the Foster Club, the Gay Straight Alliance, the Film Club, and the Beatles and Music Club. She also led the political and legal fight to maintain the swim team at Bravo Medical Magnet High School.
The plaintiff Gladys Morales, by her next friend Rocio Morales, is a Latina senior high school student at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has applications for admission pending with UCLA and UCB. She currently has a GPA of 4.25 and an SAT score of 1790; she is the treasurer and secretary of M.A.Y.A., a member of the Academic Decathlon, a senator for the senior class and a member of Talent Search Girl Talk (TELACU).
The plaintiff Han Kyul Noh, by his next friend Lucia Noh, is a Korean American senior at Bravo Medical Magnet High School, an LAUSD public school, and has an application for admission pending with the UCLA. He currently has a GPA of a 4.0 and an SAT score of 2110. He is a member of the National Honors Society, president of the Key Club, a member of the varsity volleyball team, a member of the Korean Club, a member of the Korean Coalition of Students in California, and a member of the Korea Town Youth and Community Center.
The plaintiff Auria Perez is a Latina junior at Crenshaw High School, a neighborhood Los Angeles public school, and has applications for admission pending with UCLA and UCB.
The plaintiff Maria Elena Polanco, by her next friend Adela Santibana, is a Latina senior at Theodore Roosevelt High School, a neighborhood Los Angeles Public School, and has applications for admission pending with UCLA and UCB; she currently has a GPA of 4.25 and an SAT score of 1440. She is a member of the volleyball team, senator for the senior class in the Associated Student Body- Student Council, and president of M.A.Y.A., which is a math, English and science academy within the school.
The plaintiff Merari Ramirez is a Latina senior at Bravo Medical Magnet High School, an LAUSD public school, and has applications for admission pending with UCLA and UCB; she currently has a GPA of a 3.67 and an SAT score of 1630. She is a member and historian of the Anti-Defamation League, on the staff of the Yearbook Committee, member of the Association of Professionals and Students, and a Folklorico dancer.
The plaintiff Nancy J. Rodriguez, by her next friend Lucia Castillo, is a Latina senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has applications for admission pending with UCLA and UCB. She has a GPA of 3.6 and an SAT score of 1500. She is the treasurer for the Associated Student Body – Student Council, a Peer-to-Peer mentor, treasurer for the Student Advisory Council, treasurer for the Bible Club, a member of TELACU and a tutor for A-Star.
The plaintiff Dominique Short-Thomas is a black student who is graduating from Skyline High School in Oakland, and has applications pending for admission to UC Berkeley and UCLA. Her GPA is currently 3.9 and her SAT score is 1550. She is a member of the Track Team and the Student Council. She also builds and programs robots.
The plaintiff Alejandro Solis, by his next friend Rosa Desormaux, is a Latino senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has applications for admission pending with UCLA and UCB. He currently has a GPA of 3.47 and an SAT score of 1550. He is a member of the Academic Decathlon and a member of the Keystone Leadership Group.
The plaintiff Jasmine Tovar, by her next friend Luz Tovar, is a Latina senior at King/Drew Medical Magnet High School, a Los Angeles Unified School District (LAUSD) public school, and has an application for admission pending with UCLA. She has a GPA of 3.9 and an SAT score of 1440; she is currently a member of Junior Statesmen of America, the California Scholarship Federation and Ocean Challenge, as well as an intern for You Think.
The plaintiff Brenda Trujillo is a Latina junior at Oakland Technical High School’s Health Academy who wants to apply to UC and become a veterinarian. If she enters UC, she would be the first person in her family to go to college. She is currently volunteering at a veterinary hospital.
The plaintiff Jose Roberto Valenzuela is a Latino third year undergraduate student at the University of California Los Angeles (UCLA) and upon graduation will be applying to the law schools of UCLA and the University of California Berkeley. He currently has a grade point average (GPA) of 3.29. He is a member of BAMN, treasurer of Hermanos Unidos, and a member of the Latin American Student Association.
The plaintiff Ruby Villarruel, by her next friend Olivia Villarruel, is a Latina senior at Theodore Roosevelt High School, an LAUSD public school, and has applications for admission pending with UCLA and UCB. She currently has a GPA of 4.19 and an SAT score of 1780. She is the historian of the Design Team One, and editor of the Newspaper Club.
Jerrica Webb is a black senior at Skyline High School in Oakland, California. She is an intern at the Ella Baker Center for Human Rights.
Amber Williams, by her next friend Carlette King-Williams, is an 8th grade black student who attends Martin Luther King, Jr. Middle School in Berkeley. Her current GPA is 3.0 and she intends to apply to UC Berkeley and UCLA. She is active in the Black Student Union and also trains in dance.
The plaintiff Ricardo Zazueta is a Latino senior at Theodore Roosevelt High School, a neighborhood LAUSD public school, and has an application for admission pending with UCLA. He currently has a GPA of 3.4 and an SAT score of 1450. He is the Drum Captain of the Roosevelt High School Marching Band.

University of California and other college student plaintiffs

The plaintiff Issamar Camacho is a Latina graduate of Roosevelt High School in Los Angeles, who is on leave from the University of California at Berkeley and plans to apply to its graduate schools upon her graduation from its undergraduate college. She is a member of BAMN and has run for ASUC student government vice president of external affairs as a candidate with the Defend Affirmative Action Party (DAAP).
Maria Belman is a third year Latina second-year student at UC Berkeley who intends to apply to UC Berkeley and UCLA Law Schools. Her GPA 3.0. She is a member of BAMN.
The plaintiff Calvin Jevon Cochran is a black student who is finishing his courses at Laney and Berkeley Community Colleges. His GPA is currently a 3.8 and he has an application pending for admission to UC Berkeley. He is active with various student justice organizations.
The plaintiff Jeremy Bamidele is a black student at the University of California at Berkeley.
The plaintiff Jonathan Brooks is a black student majoring in Theater and Performance Studies at UC Berkeley.
The plaintiff Bianca Centeno is a Latina first year undergraduate student at the UCLA and upon graduation will be applying to the law schools of UCLA and UCB; she currently has a GPA of 3.0 and is an active member of Hermanas Unidas.
The plaintiff Veronica Donerson is a black third-year undergraduate student at the UCLA, and will be applying to the medical school at UCLA upon graduation. She currently has a GPA of 3.0 and is a volunteer for Riordan Health Care Management, a member of For Real History and Hope of Our People (4REAL), and NOMMO Black News Magazine.
The plaintiff Jose Flores is a Latino freshman at UC Berkeley.
The plaintiff Gabriela Galicia is a Latina student and alumna of UC Berkeley. She intends to become a lawyer and apply to Berkeley Law School.
The plaintiff Jose Garcia is a Latino student at City College of San Francisco.
The plaintiff Anthony Keoki Gracia is a Latino and Hawaiian student at UC Berkeley.
The plaintiff Rabiah Harrison is a black student studying engineering at City College of San Francisco.
The plaintiff Rose Anita Hernandez is a Latina third-year student at UCLA and upon graduation will be applying to the law schools of the University of California Berkeley and the University of California San Diego. She currently has a 3.4 GPA and is active in various minority tutoring programs at UCLA.
Zaira Hernandez is a third-year Latina student at the University of California at Berkeley. Her GPA is 3.8, and she intends to apply to UC Berkeley and UCLA for Law School. She regularly stages her artwork and also studies herbalism.
The plaintiff Dominique Lofgren is a Filipina and Swedish undergraduate student studying sociology, anthropology, and black feminism at UC Berkeley.
The plaintiff Antonio Love is a black student at UC Berkeley.
The plaintiff Javier Meza is a Latino student at UC Berkeley.
The plaintiff Jalima Morales is a Latina student at City College of San Francisco.
The plaintiff Aislyn T. Namanga is a black second-year undergraduate student at UCLA and upon graduation will be applying to the law schools of UCLA and the University of California Berkeley (UCB). She is a member of BAMN.
The plaintiff Nicholas Ogbuehi is a black student studying molecular and cell biology at UC Berkeley.
The plaintiff Japhinma Power is a black sophomore studying engineering at UC Berkeley. He has run for the student government senator as a candidate with the Defend Affirmative Action Party (DAAP).
The plaintiff Aaron Sampson is a black student at UC Berkeley.
The plaintiff Andrew Sanchez is a Latino student at UC Berkeley.
The plaintiff Desiree Tienturier is a Middle Eastern student at UC Berkeley.

Defendants

The defendant Arnold Schwarzenegger is the Governor of the State of California and is joined in his official capacity.
The defendant Regents of the University of California (“the Regents”) is the duly appointed corporation that administers the public trust of the University of California pursuant to the terms of Article 9, Section 9 of Constitution of the State of California.
The defendant Mark Yudof is the President of the University of California and is joined in his official capacity.

CLASS ACTION

Pursuant to Rule 23(b)(2), the plaintiffs may maintain this action as a class action because the defendants are acting on the basis of Proposition 209, which is common to all members of the class.
The plaintiffs represent the following classes or subclasses:
1. The class of all black, Latina/o and Native American applicants to and students at any school or campus of the University of California;
2. The class of all black, Latina/o, and Native American and other residents who want to lobby for changes in the admission and other policies of the defendant universities in order to secure the admission of more black, Latina/o and Native American applicants to the University of California.
The classes set forth above are so numerous that joinder is impracticable.
The question of the validity of Proposition 209 is common to the claims of the class.
The claims of the named black, Latina/o, and Native American students and applicants are typical of the claims of the class of such students.
The claims of the named organizations and the individual citizens are typical of the class of citizens seeking change in admission and other policies that are beneficial to minorities.
The representative plaintiffs will fairly and adequately represent the interests of the classes they seek to represent.

STATEMENT OF FACTS

A. The mission of the University of California and the normal procedures by which its schools adopt their admission policies.

In 1868, the state of California chartered the University of California as a land grant university.
In its Constitution, the state declared that the University was a public trust and granted the Regents,

…full powers of organization and government, subject only to such legislative control as may be necessary to insure the security of its funds and compliance with the terms of the endowments of the university and such competitive bidding procedures as may be made applicable to the university by statute for the letting of construction contracts, sales of real property, and purchasing of materials, goods, and services.

Cal Const, art 9, sec 9.
From the beginning, the Regents asserted full control over the admission policies of the University.
In 1960, the state’s new Master Plan for higher education established that the UC was to admit the top 12.5 percent of the state’s high school students.
Under the Master Plan, the Regents asserted and retained full power to determine the criteria for which students were “UC eligible” and to determine the categories of exceptions to those criteria.

B. The University’s commitment to equality and affirmative action.

Echoing Lincoln and thus of Emancipation and Reconstruction, Daniel Coit Gilman, one of the first Presidents of the University of California, proclaimed in 1872 that it should become a university “of the people and for the people not in any low or unworthy sense, but in the highest and noblest relation to their intellectual and moral well-being.”
Following that goal, the UC has from its founding provided an opportunity for students from lower social and economic backgrounds by varying its eligibility and admission criteria and by awarding plus factors to those from such backgrounds.
But even though the University maintained a policy of non-discrimination by race throughout its history, there were few black, Latina/o., Native American or Asian until the 1960s.
Before 1970, any student who was “UC eligible” could attend the undergraduate college of his or her choice.
Beginning in the early 1970s, however, the number of applicants applying to the most prestigious campuses, including especially those at Berkeley and UCLA, exceeded the number of spaces available at those campuses.
The Regents formed general standards for admission to the oversubscribed campuses and delegated to the local administrations and faculty the task of formulating more specific standards for admission to each campus of the UC.
The Regents or the local administrations therefore established grade point averages, extra credit for advanced placement courses, scores on standardized tests, and similar factors as admission criteria for the oversubscribed campuses.
In keeping with its stated commitment to social and economic equality, the Regents directed, authorized or allowed the individual campuses to consider the applicants’ economic, social and geographic backgrounds and similar factors in order to assure that students from a variety of different backgrounds were admitted to the UC and to each of its campuses.
Even though the UC has and still has a far higher than average balance in the economic backgrounds of students attending the various UC, those factors standing alone have not admitted black, Latina/o and Native American students because racial inequality has been both deeper and distinct from economic inequality.
Under pressure from the Civil Rights Movement and student and urban protests, the UC began in the 1960s to vary its eligibility criteria in order to ensure that more black, Latina/o, and Native American students were eligible for admission to the UC.
Similarly, after 1970, the Regents and the individual campus administrations adopted the first affirmative action programs in order to assure that larger numbers of Latina/o, black and Native American students were actually admitted to the most selective campuses.
The new affirmative action policies adopted the explicit consideration and the plus factors that had been used to temper the other educational inequalities that the UC’s traditional criteria captured.
But because racial inequality was both different and far larger than inequality caused by any other factor, explicit consideration was even more necessary and the plus factors had to be larger in order to counteract inequality that far exceeded that caused by all other factors.
The new affirmative action programs resulted in a rapid and significant increase in the number of black, Latina/o and Native American students at all of the UC campuses—and ultimately to new minority attorneys, doctors, business and political officials, and leaders in almost every field.
From time to time, the Regents or its subordinate bodies or officials changed the affirmative action plans due to educational experience, increasing knowledge about its other admission criteria, changing legal requirements, the growing minority population of the state, or other similar factors.
Until the passage of Proposition 209 in 1996, however, the Regents had full power over all aspects of the admission policy—including full power to change any aspect of those policies by majority vote of the Regents.

C. Proposition 209’s dishonest and dangerous attack on affirmative action.

In 1995, Ward Connerly, a Regent whom Governor Pete Wilson had just appointed, began a campaign against affirmative action.
Connerly and Wilson used the difference in GPAs and test scores between white students and Latina/o, black and Native American students as the excuse to appeal to prejudice by labeling affirmative action as “racial preferences.”
Connerly and Wilson’s attack was fundamentally dishonest because both of them knew that the admission criteria both captured and magnified the inequality caused by the de facto segregation and inequality in elementary and secondary education.
But the attack was politically effective because it appealed to many white residents who felt they were being left behind in a state that was rapidly changing.
To their credit, all nine chancellors of the UC campuses opposed Connerly’s efforts. Both they and the admissions officers specifically warned the Regents that banning affirmative action would result in sudden and severe drops in Latina/o, black, and Native American student enrollment.
Connerly and Wilson pressed ahead, however, and, in July 1995, they secured the Regents’ approval of SP-1 which banned any constituent part of the University from considering race in admitting students for any purpose, including attempts to ensure that the entering classes were racially diverse and integrated.
As Connerly wrote in his autobiography, he feared that the Regents would reverse their vote if the normal democratic processes remained in place.
Connerly therefore agreed to lead the drive to pass Proposition 209.
Like the Southern segregationists who put the grandfather clauses, literacy tests, and other similar laws into the Constitution where they could not be changed, Connerly and Wilson decided to put the ban on affirmative action in California’s Constitution where it would be difficult, if not impossible, to change.
In November 1996, the white majority of California’s electorate provided the votes to pass Proposition 209 by a margin of 54 to 46 percent.
The immediate effects were devastating. In the first year in which it was effective, Latina/o, black, and Native American student admissions at UC-Berkeley fell by 52.1 percent, admissions at UCLA fell by similarly large numbers, and the effect in some of the UC’s law, medical and other schools was even worse.
In the years since, minority students have been driven from the campuses at Berkeley and UCLA onto the campuses of the less selective UC campuses.
Thus, in the freshman class that was admitted for Fall 2009, Latina/o, black, and Native American students comprised of 17.7 and 19.4 percent of the new admits at UC-Berkeley and UCLA respectively, but 33.5 percent and 34.4 percent of the new admits at UC-Riverside and UC-Merced respectively. Proposition 209 resulted in a dramatic redistribution of Latina/o, black, and Native American students out of UC-Berkeley and UCLA and into less selective C campuses. (Ex 5-6)
Even with these increases in minority admissions at the newer and less selective campuses, the percentage of Latina/o, black and Native American students in UC as a whole has not kept pace with the rising percentage of those groups among high school graduates of the state (Ex 1-3).
The number of underrepresented minority students at the UC’s flagship campuses of UC-Berkeley and UCLA has lagged far behind the rapid growth of California’s minority student population, including in particular its Latina/o population. (Ex 7)
The UC’s most selective graduate schools are faring even worse. In 2005, the most recent publicly available data, the Latina/o, black, and Native American students comprised only 12 percent of new law students, 17 percent of new medical students, and 4.5 percent of new business students. (Ex 8)
Indeed, in 2008, underrepresented minority students comprised only 5 percent of all graduate students in engineering and computer sciences.
The UC’s various schools have attempted to mitigate the sharp drop in minority admissions by adopting a “comprehensive review” of applications, by varying the standardized tests, by admitting the top four percent of graduates from any high school, by decreasing the weight of the tests, and by other policies.
None of these measures, however, have had more than a minor effect.
Moreover, the effects of budget cutbacks are now overwhelming some of these measures.
Today, the UC and its most selective campuses in particular accept a far lower percentage of the Latina/o, black and Native American students who apply than those from any other racial group. (Ex 9)
The Regents themselves have recognized that all of their efforts to prevent the decline in Latina/o, black and Native American enrollment cannot be successful as long as Proposition 209 remains in effect. Thus, in 2001, the Regents repealed SP-1 and have issued report after report documenting the disastrous fall in minority enrollment.
But as the Regents have recognized, as long as Proposition 209 prohibits affirmative action, they cannot fundamentally alter the increasing distance between the racial composition of student bodies at the UC and the racial composition of the state as a whole and of its high school graduates in particular.

D. The standards for determining UC eligibility and admission to the various schools of the UC are not, and never have been, racially neutral.

From the beginning, the opponents of affirmative action claimed that it discriminated against white people and men by departing from an allegedly neutral system and giving “preferences” to minority students.
There is not now, and never has been, any truth to this claim.
Indeed, it is generally recognized that granting plus factors for lower socio-economic status, rural backgrounds, and similar factors is not “discrimination” or “preferences,” but rather recognition of that form of inequality and a legitimate means to achieve a diverse and integrated class.
But racism is so strong that when the same policy is applied to race, it suddenly is called a “preference.”
The simple fact is, however, that California has for many decades maintained a system of elementary and secondary education that is separate and unequal.
Due to pervasive residential segregation, almost all black students and the overwhelming majority of Latina/o students attend urban schools that are almost totally segregated. Similarly, most Native American students attend segregated schools on the reservations or segregated schools in the urban centers where they now live.
As is undisputed by serious observers, segregated schools and, even more so, intensely segregated schools, have fewer facilities, fewer certified teachers, fewer resources, fewer AP and honors programs, smaller or non-existent libraries, fewer counselors, less knowledge about university admission systems, more overcrowding, and a host of other disadvantages.
Moreover, segregated schools almost always have concentrated poverty, unlike that found in almost all schools that are majority white. That concentration means that poor minority students, unlike poor white students, almost never have the educational advantages that come from attending schools with those who are more economically and educationally privileged.
Beyond these objective factors, segregated schools suffer from the overriding stigma of inferiority, which leads white students and the minority students themselves to devalue their schools and their achievements in ways that profoundly affect the minority students’ futures.
A few black and somewhat more Latina/o and Native American students are able to escape the world of segregated schools.
This almost always assures important educational advantages to those students when compared to the educational opportunities available in a segregated school.
But even in those schools, tracking, racial isolation, racial hostility, the pervasive stigma of inferiority, and a host of other factors mean that they do not receive an education equal to that of their white peers.
Nor do they receive an education that is equal to students from many Asian backgrounds, who suffer discrimination themselves, but are more integrated into society and who come from economic and social backgrounds that now approximate those of much of the white population.
The educational segregation and inequality described above necessarily mean that Latina/o, black, and Native American students cannot display as many educational accomplishments on their applications.
That is not because minority students are less smart or less diligent, as is so often stated, but solely and simply because minority students have been subjected to enormous educational disadvantages through absolutely no fault of their own.
The educational segregation and inequality described above has even greater consequences on the scores on standardized tests that play a crucial role in the UC’s admission standards.
As shown by numerous studies, differing average test results result from different home income and wealth, different parental education levels, different language backgrounds, and a host of similar factors.
But above and beyond the differences caused by all of these factors, race is the single greatest cause of differing average test scores.
The causes of those differences is complex and multi-faceted, including the direct effects of segregated and unequal education on the students, bias of various kinds in the tests, serious anxiety among racial minorities taking tests that they fear will be used to brand them inferior and a host of similar factors.
Even the testing companies have been forced to admit that these tests do not measure intelligence, aptitude or any similar factor—or still less, ambition, courage, or any similar factor.
As revealed in the fine print of the test manufacturer’s claims, the test scores measure, at best, a loose and sometimes non-existent correlation with first-year grades.
By all accounts, the standardized tests have an enormously disparate effect on Latina/o, black and Native American students. In 2007, for example, the College Board revealed that white students had an average combined score on the SAT verbal and math tests that was that was, respectively, 125, 208, and 292 points higher than the average for Native American, Chicano and African-American students.
This racial gap transcends all income categories. Indeed, as Connerly himself conceded in a deposition, the UC’s own statistics show that black students from the highest income brackets score lower on average than white students from the lowest income brackets.
Moreover, at the graduate level, there is evidence that the standardized tests exaggerate the differences between students. Thus, for example, a study of students applying to Boalt Hall showed that black and Latina/o applicants who achieved the same grades in the same majors at the same undergraduate colleges scored dramatically lower on average on the LSAT than white applicants whose educational qualifications were essentially identical.
Finally, the factors listed are compounded in applications for graduate school by the comparatively small number of minority undergraduate students. This leads to increased isolation—and increased acts of racial insensitivity and hostility from some white students, which compound the challenges that minority students already face at those universities.
By any standard except that assumed by the Wilson panel, the University’s admission criteria are not, and never have been, racially neutral.
By any standard except that assumed by the Wilson panel, the fight for relief from the University’s admission criteria is a fight against discrimination.
As educational officials have long recognized, in order to recognize talent among Latina/o, black and Native American applicants, it is necessary to consider their educational credentials in light of all of the social characteristics of the applicant, including, above all, in light of the applicant’s race.
Proposition 209 has, however, outlawed that consideration.
Under the force of law, the university admissions officials are forced to ignore the educational effects of the pervasive de facto segregation, biases in test results, and a myriad of other factors that the officials know must be considered in order to assess a minority student’s promise—but which they must singularly ignore even as they consider every lesser form of social inequality.

E. The Booker T. Washington response.

In the Michigan litigation challenging a carbon-copy of Proposition 209—which is now pending in the Sixth Circuit—Ward Connerly conceded virtually every fact set forth in this Complaint.
He, however, maintained his support for Proposition 209 because, he said, it would administer the “tough love” necessary to induce minority students to work harder.
Mr. Connerly’s claim that minority students need to shocked into working harder is nothing other than a slightly restrained version of the racist claim that minority students have not succeeded because they are “lazy.”
In fact, minority students already have to and do work far harder just to get to the same place as students from a more privileged background.
Mr. Connerly and some of his supporters also assert that if minority students only secure admission to schools that offer less opportunities, they will be happier there because they are a “better match” for those students.
But this assertion ignores the fact that Proposition 209 forces the UC and each of its campuses to turn down numerous Latina/o, black, and Native American applicants who are fully qualified to attend those schools and who want to attend those schools because they rightly believe that they are entitled to every educational opportunity that is afforded to those who are far more privileged than they are.
All of these arguments are simply reprises, in new conditions, of Booker T. Washington’s admonitions that black people should adjust to segregation by “casting down their bucket where they were,” by avoiding any open challenge to the system of segregation, and by hoping that, in time, the “best” elements of the white population will recognized what a loyal workforce they can be.
Washington’s counsel paved the way for segregation, for inequality and for all of the horrors that were used to support that system.
At the dawn of the 21st century, the Latina/o and black plaintiffs will not repeat that error by accepting Connerly’s advice to work harder and to avoid any confrontation with the system of de facto segregation.
The plaintiffs will instead fight to strike down Proposition 209 because that law enshrines and perpetuates the pervasive de facto segregation and inequality in the state and because that law can only lead to a disaster for them and for the state as a whole.

COUNT ONE
RACIAL DISCRIMINATION IN THE STRUCTURE OF GOVERNMENT

The allegations of the preceding paragraphs are repeated as if fully set forth herein.
For 150 years, every individual and group has been able to petition the Regents, and the governing officials and faculties at each of the UC schools for the adoption of new policies, changes in the policies, or exceptions in the existing policies in order to facilitate a particular group’s ability to secure admission to the UC or to one of its schools.
Proposition 209, however, has stripped the Regents of the power to consider or adopt otherwise lawful proposals advanced for one purpose and one purpose alone: facilitating the admission of black, Latina/o and Native American students.
By stripping the Regents and the faculties of that power, Proposition 209 has deprived minority residents and their supporters of access to the normal procedures that all other groups may continue to use to win or preserve policies that facilitate the admission of their members.
In order to secure changes that are in their interest, Latina/o, black and Native American residents—and they alone—must expend the considerable resources needed for the almost certainly impossible task of persuading an electorate that is still majority white to repeal or amend Proposition 209.
By decreeing that it will be more difficult for minorities to seek aid from the government than it is for any other group, Proposition 209 has violated the Equal Protection Clause in the most literal and fundamental sense.
In its 1997 decision, however, the Wilson panel declared that there was no violation of the Equal Protection Clause because it asserted that minorities were supposedly seeking a “preference” from an otherwise neutral system.
From the beginning, that decision was based on a false factual premise—in reality an ideological assumption, devoid of any evidence to support it—because the existing admission standards were not racially neutral and demands for relief from them were obviously efforts to fight discrimination. “
As became clear with the Grutter decision in 2003, the Wilson panel decision was also based on false, indeed non-existent, legal foundations, because, as the Court held, in selective universities, affirmative action plans were the only practical means of furthering the compelling interest of assuring that students from all racial backgrounds could actually attend the universities that trained most of tomorrow’s leaders.
In 2007, the Supreme Court majority knocked the final prop out from under the Wilson panel decision by holding that its central legal premise—the theory of the color-blind constitution—was inconsistent with the Fourteenth Amendment and could not be used as the Wilson panel did as a guide to policy in all circumstances.
Today, Proposition 209 therefore stands in naked violation of the Fourteenth Amendment’s ban on relegating minorities to more onerous procedures than other citizens must use when they seek lawful changes in admission policies.

Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive and declaratory relief restraining the defendants from enforcing Proposition 209 insofar as it applies to the admission, education and graduation of students at the University of California. The plaintiffs also request such further relief as is just and equitable, including the attorneys’ fees and costs of this action.

COUNT TWO
RACIAL DISCRIMINATION
IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH AMENDMENT

The allegations of the preceding paragraphs are repeated as if fully set forth herein.
Proposition 209 intentionally discriminates against Latina/o, black and Native American applicants in three separate, but interrelated ways.
First, Proposition 209 prohibits the University from pursuing racial diversity and integration even though the University may continue to pursue every other form of diversity and integration.
Second, Proposition 209 has prohibited the University from considering racial inequality in education in the same way that it considers other, lesser forms of inequality in education.
Third, Proposition 209 explicitly aimed at driving down and holding down the numbers of racially-defined groups of students and applicants by forcing the University to apply its normal admission criteria in ways that capture and magnify the racial segregation and inequality in elementary and secondary education.
The racial target of 209 is explicit: the only supposedly underqualified applicants it targets are those who are Latina/o, black, or Native American.
Indeed, Connerly, the primary sponsor of Proposition 209, has explicitly and under oath endorsed a racial goal by declaring that black, Latina/o, and Native American students for some unstated reason will, unlike other students, only respond if they receive a dose of what he calls “tough love.”
In his historic dissent in Plessy, Justice Harlan rightly and strongly rebuked his colleagues because they lacked the simple candor to state that the law requiring separate accommodations on New Orleans’ streetcars was obviously intended to exclude, demean and degrade black citizens.
Simple candor today requires recognizing that Proposition 209 had no goal other than making it nearly impossible for the University to overcome the continuing massive de facto segregation in elementary and secondary education and thus to require it to exclude those students from its colleges essentially forever.
Proposition 209 has achieved its known and intended effect: those students are no longer in those universities in numbers that even remotely reflect their growing share of the young population of the state.
The Fourteenth Amendment was proposed and ratified to prevent the states from imposing separate legal requirements on persons because of their race—and, if candor is to be preserved, a law that requires public officials to approach the admission of racial categories of students in particular ways, that administers “tough love” to categories defined by race, and that results in the exclusion of students because of their race is nothing other than a violation of the letter and purpose of an Amendment that is fundamental to American democracy in a period where the Nation is becoming, for the first time, a Nation that is no longer majority white.

Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive and declaratory relief restraining the defendants from enforcing Proposition 209 insofar as it applies to admissions at the University of California. The plaintiffs further request that this Court award such further relief as is just and equitable, including the attorneys’ fees and costs of this action.

By Plaintiffs’ Attorneys,
SCHEFF, WASHINGTON & DRIVER, P.C.

BY: /s/Ronald Cruz
Ronald Cruz (State Bar No. 267038)
George B. Washington (Michigan P-26201)
Shanta Driver (Michigan P-65007)
645 Griswold, Suite 1817
Detroit, Michigan 48226

Dated: February 15, 2010