Case3:10-cv-00641-SC Document1 Filed02/16/10 Page1 of 48

I GEORGE B. WASHINGTON, Michigan Bar No. P2620 I*

SHANTA DRIVER, Michigan Bar No. P65007*

2 Scheff, Washington & Driver, P.C.

645 Griswold St., Suite 1817

3 Detroit, MI 48226

Phone: 313-963-1921 Fax: 313-963-7587

4 scheff@ameritech.net

*Applications pro haec vice pending

5

RONALD CRUZ, State Bar No. 267038

6 Scheff, Washington & Driver, P.C.

2015 Filbc1t St.

7 Oakland, CA 94607

(51 0) 501-2435 ronaldsf@gmail.com

8 Attorneys for Coalition to Defend Affirmative Action,

Integration, and Immigrant Rights and Fighi for Equality

9 By Any Means Necessmy, et al, Plaintiffs

10

"1 0- 00 641 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIAII

.

II

COALITION TO DEFEND AFFIRMATIVE ACTION,

COMPLAINT FOR

12 INTEGRATION AND IMMIGRANT

DECLARATORY AND

RIGHTS AND FIGHT FOR EQUALITY BY

INJUNCTIVE RELIEF

13 ANY MEANS NECESSARY (BAMN), DEFEND

(CLASS ACTION)

AFFIRMATIVE ACTION PARTY (DAAP),

14 IS SAMAR CAMACHO, JEREMY BAMIDELE, MARIA

BELMAN, JONATHAN BROOKS, CHRISTIAN IVAN

15 BURGOS, MAYRA CASILLAS, BIANCA CENTENO,

CALVIN JEVON COCHRAN, ADAN DE LA CRUZ by his

16 next friend LUIS DE LA CRUZ, VERONICA DONERSON,

OMAR SERAG ELDIN by his next friend GAMIL SERAG

17 ELDIN, JOSE FLORES, MICHELLE FLORES by her next

friend VICTORIA BARRANCO, JENESIS FONSECA by

18 her next friend ANGELICA LEDEZMA, GABRIELA

GALICIA, !LIANA GALLAGA, JOSE GARCIA, JOSE

19 GARCIA, MIYUKI GOMEZ by her next friend ROSA

MARIA GOMEZ, PATRICIA GONZALEZ, ANTHONY

20 KEOKJ GRACIA, RABIAH HARRISON, ROSE ANITA

HERNANDEZ, ZAIRA HERNANDEZ, DANIEL DE

21 JESUS HERRERA, BRENDA IGLESIAS, JESSICA

JIMENEZ, SARAH KIM, DOMINIQUE LOFGREN,

22 ANTONIO LOVE, NAYELl A. MARAVILLAS by her next

friend MARTIN MARAVILLAS, GABRIELA MARTINEZ

23 by her next friend DORA MARTINEZ, JAVIER MEZA,

GLADYS MORALES by her next friend ROCIO

24 MORALES, JALIMA MORALES, AISLYN T.

NAMANGA, HAN KYUL NOH by his next friend LUCIA

COMPLAINT FOR DEC AND INJ RELIEF

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page2 of 48

I NOH, NICHOLAS OGBUEHI, AURIA PEREZ, MARIA ELENA POLANCO by her next friend ADELA
2 SANTIBANA, JAPHINMA POWER, MERARI RAMIREZ, NANCY J. RODRIGUEZ by her next friend LUCIA
3 CASTILLO, AARON SAMPSON, ANDREW SANCHEZ, DOMINIQUE SHORT-THOMAS, ALEJANDRA SOLIS by
4 his next friend ROSA DESORMAUX, DESIREE TIENTURIER, JASMINE TOVAR by her next friend LUZ
5 TOVAR, BRENDA TRUJILLO, JOSE ROBERTO VALENZUELA, RUBY VILLARRUEL by her next friend
6 OLIVIA VILLARRUEL, JERRICA WEBB, TANISHA
WEST, AMBER WILLIAMS by her next friend 7 CARLETTE KING-WILLIAMS, RICARDO ZAZUETA

8 Plaintiffs,

9 vs.

I 0 ARNOLD SCHWARZENEGGER, in his official capacity as Govemor of the State of California,
II REGENTS OF THE UNIVERSITY OF CALIFORNIA, and MARK YUDOF, in his official capacity as
12 President of the University of California,
13 Defendants.
14

15

PLAINTIFFS' COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF

(CLASS ACTION)

16

17

Pursuant to the Federal Rules of Civil Procedure, the plaintiffs, by and through their

18 attorneys, Scheff, Washington and Driver, P.C., state as follows:

19

INTRODUCTION

20

I. In spring 2006, the Latina/a communities poured into the streets demanding freedom

21

and an end to second-class treatment. Two-and-a-halfycars later, this new civil rights

22

movement inspired the election of the nation's first black president. Now, young leaders

23

of the 2006 walkouts attend the University of California and are leading a revived

24

student movement that is fighting against education cuts and for equal opportunities for

COMPLAINT FOR DEC AND INJ RELIEF

2

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page3 of 48

minority and undocumented immigrant students, demanding that the University rise to

2

its public mission and serve all the people of California.

3

2. The plaintiff Latina/a and black students now ask this Court to strike down Proposition

4

209's ban on affirmative action at the University of California because Proposition 209

5

has been the sentry at the gate, denying the plaintiffs the chance for an equal and

6

integrated education as promised by the Fourteenth Amendment, Brown v. Board of

7

Education, and the proudest legal traditions of California and of the nation.

8

3. Proposition 209 was an imposition of power by an electorate that was still in its majority .

9

white in a state where the population was rapidly changing.

10

4. Proposition 209 passed in 1996 simply and solely because the white majority electorate

II

overrode the overwhelming opposition of the Latina/a, black, Native American and

12

Asian voters.

13

5. Proposition 209 promised a "color-blind" Constitution. But this was and is a lie.

14

6. Proposition 209 has created a racial caste system in which the state's most prestigious

15

schools ll'ain mostly white students and students from some Asian backgrounds while

16

admitting Latina/a, black and Native American students at only a third of their presence

17

among the high school graduates of the state.

18

7. As demonstrated by the UC's own figures, the proportion of Latina/a, black, and Native

19

American students is falling further and further behind the proportion of those students

20

among high-school graduates (Ex 1-3).

21

8. The small proportion of Latina/a, black and Native American students at UC's flagship

22

Berkeley campus, as compared to the state population, is matched only at the flagship

23

universities of the Deep South states of Louisiana, Mississippi, Alabama, Georgia and

24

South Carolina (Ex 4A-4B).

COMPLAINT FOR DEC AND INJ RELIEF

3

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9. Even for those few Latina/o, black, or Native American students who have run the

2

gauntlet and secured admission to the UC, Proposition 209 has increased racial isolation

3

and racist hostility-profoundly distorting their experience and lessening their chances

4

of attending the UC's graduate and professional schools.

5

I 0. The UC has, to its credit, attempted to mitigate the effects of Proposition 209-such as

6

considering socioeconomic class, using comprehensive file review, admitting the top 4

7

percent of evety high school, varying the weight of tests and other admissions criteria,

8

considering the opportunities available at one's high school, etc.-but in report after

9

report, the UC has shown that none of these measures can halt the fundamental trend

10

toward resegregation if Proposition 209 remains in effect and affirmative action remains

II

banned.

12

II. In Count One, the plaintiffs assert that Proposition 209 violates the Fourteenth

13

Amendment by forcing minority students and their suppotters to sponsor an onerous and

14

almost certainly futile statewide referendum in order to secure the adoption of lawful

15

affirmative action programs. Every other group, however, retains the right to secure a

16

change in admission policies that are in its members' interest by a simple majority vote

17

of the Regents or their subordinate bodies. By mandating separate and unequal

18

procedures for underrepresented minority students for the adoption of admission

19

policies, Proposition 209 violates the Equal Protection Clause in the most literal and

20

fundamental sense.

21

12. In Count Two, the plaintiffs assert that Proposition 209 also violates the Equal

22

Protection Clause because it was specifically intended to decrease or hold down

23

Latina/o, black and Native American enrollment (a) by substantively prohibiting the UC

24

fi"om pursuing racial integration and diversity-while allowing it to pursue every other

COMPLAINT FOR DEC AND INJ RELIEF

4

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form of integration and diversity, (b) by prohibiting the UC from taking account in

2

admissions of the massive educational inequality due to race-while allowing it to take

3

account of eve1y lesser form of educational inequality; and (c) by legally requiring the

4

University to apply its existing admission criteria in rigid ways that reflect and magnifY

5

de facto segregation and inequality in elementary and secondary education.

6

13. Indeed, Ward Conncrly, the prime sponsor ofProposition209, has finally admitted

7

under oath that his goal was that Proposition 209 would administer the "tough love" that

8

minority students supposedly needed in order to force them to work hard enough order

9

to secure admission on "their own mcrits"-that is, according to merit as determined by

10

a system that Connerly himself admits both incorporates and magnifies the unequal

II

nature of elementmy and secondmy education.1

12

14. Thirteen years ago, this Court rightly struck down Proposition 209 because it violated

13

the Fourteenth Amendment by imposing a separate and more onerous political

14

procedure on Latina/a, black and Native American residents. Coalition for Economic

15

Equity v. Wilson, 946 F. Supp. 1480 (N.D.Calif.l996).

16

15. However, a panel of the Ninth Circuit reversed and upheld Proposition209 on the basis

17

of a supposed factual finding-in reality an ideological assumption-that the fight for

18

affirmative action was not entitled to equal political procedures because it was a fight for

19

"racial preferences," not a fight against racial discrimination. Coalition for Economic

20

Equity v. Wilson, 110 F.3d 1431 (9th Cir. 1997), cert. den. U.S. (1997).

21

22 1"I knew that, but I also knew that the only way we're going to close this academic gap between
23 black and Latino on the one hand and Asian and white on the other, is not to keep papering over it with preferences, but to apply the tough love that's necessary to get black and Latino students
24 up to the bar. That was a value judgment then, it's a value judgment now." (Dep of Connerly, p. 120.)

COMPLAINT FOR DEC AND INJ RELIEF

5

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16. This rationale by the Wilson panel echoed the claims of racists from President Andrew

2

Johnson through the Southern segregationists-who have always falsely attempted to

3

label steps toward equality as preferences.

4

17. But the Ninth Circuit, with five justices dissenting in support of the district court, denied

5

rehearing without opinion. I d.

6

18. The Supreme Court, which was at that time declining the writ in all cases involving

7

affirmative action in higher education, denied certiorari in Wilson as well. Id.

8

19. There is not now, and never has been, any factual support for the Wilson panel's central

9

assumption that the fight for affirmative action was a fight for racial preferences rather

10

than a fight against racial discrimination.

11

20. As was true in 1996 and is even truer today, the first of the UC's two central admission

12

criteria-grade point averages adjusted upward to account for honors and AP courses-

13

reflects the separate and distinctly unequal elementmy and secondary education

14

provided to Latina/a, black and Native American students.

15

21. As was true and as is even truer today, the UC's other crncial admission criterion-

16

standardized test scores-both reflect and vastly magnify the effects of de facto

17

segregation and inequality in a myriad of ways that derive from racial discrimination

18

and segregation.

19

22. As any fair factual record compiled in this case could demonstrate, the Wilson panel

20

wrongly assumed that the existing admission criteria are "racially neutral," wrongly

21

labeled the fight for affirmative action as a fight for "preferences," and wrongly failed to

22

recognize that affirmative action was simply a demand for relief from the otherwise

23

overwhelming preferences that white students and students from some Asian

24

backgrounds otherwise received.

COMPLAINT FOR DEC AND INJ RELIEF

6

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I

23. Just as the Wilson panel's factual assumptions arc irreconcilable with reality, its legal

2

conclusions arc irreconcilable with what arc now the clearly governing standards

3

established in Gmlter v. Bollinger, 539 US 306 (2003).

4

24. In Grutter, the Court held that for many selective universities, affirmative action

5

programs were the only practical means to further the compelling national interest of

6

ensuring that the "path to leadership is visibly open to talented and qualified individuals

7

of eve1y race and cthnicity." I d. at 332-33.

8

25. The Wilson panel's central legal foundation~the claim that affirmative action was not a

9

means of ending racial exclusion-is today utterly irreconcilable with the ringing

10

conclusions set fmth in Gru/fer.

I I

26. Similarly, the Wilson panel's central assertion that affirmative action in higher education

12

is "barely tolerated" by the Fourteenth Amendment is utterly irreconcilable with Gru/fer.

13

27. Moreover, as California Attorney General Jcny Brown has stated, the Wilson panel's

14

assertion that it can prohibit the right to fight for all affirmative action plans because

15

some of them may be unlawful is an assertion of states' rights that is utterly

16

irreconcilable with federal supremacy in general and with the Fourteenth Amendment in

I 7

particular.

18

28. Finally, as is now clear, the central legal premise for the Wilson panel decision-the

19

state's alleged right to establish a "color-blind Constitution" in all circumstances-is

20

absolutely irreconcilable with later Supreme Court decisions holding that the theory of

21

the "color-blind" Constitution "cannot be a universal constitutional principle" because it

22

is inconsistent with the "histmy, meaning and reach of the Equal Protection Clause."

23

Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701,

24

782-83, 788 (2007)(Kenncdy, J).

COMPLAINT FOR DEC AND INJ RELIEF

7

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I'

1

29. Grul/er and Parents Involved both recognize that de jure segregation is dead, that

2

massive de facto segregation remains, and that state and local governments must be able

3

to take action to overcome de facto discrimination-including by taking, in the

4

circumstances defined be federal law, racially conscious action to overcome it where

5

there are no other practical means for doing so.

6

30. Proposition 209's Tuskegee-like experiment in the so-called "color-blind" constitution

7

cannot change that reality-it can only make it far worse.

8

31. The UC Regents have therefore repealed their resolutions, sponsored by Connerly,

9

which proclaimed a color-blind policy in admissions.

10

32. Many top UC officials have called for the repeal of Proposition 209.

11

33. The Attorney General has informed the California Supreme Court that Proposition 209

12

violates the Fourteenth Amendment.

I 3

34. But Proposition 209 continues to hang by the thread of the Wilson panel decision.

14

35. Just as Plessy's formula of"separate but equal" provided an increasingly threadbare

15

justification for the de jure segregation in the South, the color-blind constitution

16

provides an increasingly untenable "justification" for the de facto segregation in the

17

University of Califomia.

18

36. Just as the nation would have been spared untold suffering if Plessy had been overruled

19

13 years after it was decided, California and the nation would be spared untold suffering

20

if the Wilson panel decision is abandoned today.

21

37. The students ask this Court to strike down Proposition209's ban on affirmative action in

22

the UC system because it is utterly irreconcilable with reality, with Brown, with Gruller

23

and with the proudest legal traditions of Califomia and the United States.

24

COMPLAINT FOR DEC AND INJ RELIEF

8

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I

38. The students ask this Court to strike down the old doctrine ofPlessy that has resurfaced

2

in the new guise of Proposition 209 so that they can receive the equal and integrated

3

education that Linda Brown and so many others have fought and died for.

4

5

JURISDICTION AND VENUE

6

39. This is a claim made under the Fourteenth Amendment to the U.S. Constitution and

7

under 42 USC s. 1983. This Court has subject matter jurisdiction under 28 USC s. 1331

8

and 28 USC s. 1343(3).

9

40. The United States District Court for the Northern District of California is a proper venue

10

for this action because a substantial part of the events giving rise to this action occurred

II

in that district.

12

13

INTRADISTRICT ASSIGNMENT

14

41. A substantial part of the events which give rise to this claim occurred in Alameda

15

County, making assignment to the San Francisco or Oakland Division appropriate under

16

Civil L.R. 3-2(d).

17

18

PARTIES

19

Plaintiff organizations

20

42. The plaintiff Coalition to Defend Affirnmtive Action, Integration, and Immigrant Rights

21

and Fight for Equality by Any Means Neeessa1y (BAMN) is a voluntary unincorporated

22

association organized for the purpose of defending affirmative action and building a new

23

civil rights movement. BAMN's members include black, Latina/o, Native American,

24

Asian American, other minority, and white students in California and across the country,

COMPLAINT FOR DEC AND INJ RELIEF

9

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including many who have applied for or attended the various campuses of the University

2

of California.

3

43. The plaintiff Defend Affirmative Action Party (DAAP) is a voluntary unincorporated

4

association composed of students at the University ofCalifomia at Berkeley which has rnn

5

candidates for student govemment at that university and engaged in other political activities

6

in defense of affi1mative action.

7

High school and middle school student plaintiffs

8

44. The plaintiffTanisha West is a black student who will be graduating from Oakland

9

Technical High School and has an application pending for admission to UC Berkeley.

10

She organized her school's first-ever Cesar Chavez Assembly, and has been a member of

11

the Mayor's Youth Commission and a member of BAMN. She intends to be a creative

12

writing teacher.

13

45. The plaintiff Christian Ivan Burgos is a Latino junior at Oakland Technical High School.

14

His parents have a high school level of education. He has a 3.5 GPA and intends to apply to

15

the UC system. If admitted, he would be the first person in his family to attend college.

16

46. The plaintiff Mayra Casillas is a Latina senior at Theodore Roosevelt High School, a

17

neighborhood LAUSD public school, and has an application for admission pending with

18

UCLA. She has a GPA of 3.48 and is a member of the marching band.

19

47. The plaintiff Adan de Ia Cruz, by his next friend Luis de Ia Crnz, is a Latino senior at

20

Theodore Roosevelt High School, a neighborhood LAUSD public school, and has

21

applications for admission pending with UCLA and UCB. He currently has a GPA of3.87

22

and an SAT score of 1900. He is the president of the Math, Engineering and Science Club

23

(M.E.S.A), a member of the National Honors Society, Drum Major ofthc Marching Band,

24

a senator for the senior class on the Associated Student Body, and a Peer-to-Peer Mentor.

COMPLAINT FOR DEC AND INJ RELIEF

10

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I

48. The plaintiff Omar Scrag Eldin, by his next friend Gamil Scrag Eldin, is an 8th grade

2

Egyptian American student who attends Martin Luther King, Jr. Middle School in

3

Berkeley. His GPA is 3.0 and he intends to apply to UC Berkeley and UCLA. He trains

4

in martial arts and is a member ofBAMN.

5

49. The plaintiffMichelle Flores, by her next friend Victoria Barranco, is a Latina senior at

G

Theodore Roosevelt High School, a neighborhood LAUSD public school, and has an

7

application for admission pending with the UCB. She has a GPA of3.8 and an SAT score

8

of 1270. She is a member of the Academic Decathlon, president ofM.A.Y.A., and a

9

member of TELACU.

I 0

50. The plaintiff Jenesis Fonseca, by her next friend Angelica Ledezma, is a Latina senior at

I I

Theodore Roosevelt High School, a neighborhood LAUSD public school, and has

12

applications for admission pending with UCLA and UCB. She currently has a GPA of4.02

13

and an SAT score of 1880. She is the Student Body President of the Associated Student

14

Body- Student Council, a member of the Bible Club and a member of the Boys and Girls

15

Club.

16

51. The plaintiff lliana Gallaga is a Latina senior at Theodore Roosevelt High School, a

17

neighborhood LAUSD public school, and has applications for admission pending with

18

UCLA and UCB. She currently has a GPA of 4.0 and an SAT score of 1910. She is the

19

historian of the Associated Student Body-Sh1dent Council.

20

52. The plaintiff Jose Garcia is a Latino senior at Theodore Roosevelt High School, a

21

neighborhood LAUSD public school, and has applications for admission pending with

22

UCLA and UCB. He currently has a GPA of 3.1 and an SAT score of 1500. He is the

23

President of the Bible Club and a member of the marching band.

24

COMPLAINT FOR DEC AND INJ RELIEF

I I

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1

53. The plaintiff Miyuki Gomez, by her next friend Rosa Maria Gomez, is a Latina senior at

2

Theodore Roosevelt High School, a neighborhood LAUSD public school, and has

3

applications for admission pending with UCLA and UCB. She currently has a GPA of

4

3.5 and an SAT score of 1300. She is a co-captain of the volleyball team, a member of

5

Latinas Guiding Latinas from UCLA, a member of the California Scholarship

6

Federation, a member of the Bible Club, and a member ofTELACU.

7

54. The plaintiff Patricia Gonzalez is a Latina senior at John C. Fremont High School, an

8

LAUSD public school, and has applications for admission pending with UCLA and the

9

UCB. She currently has a GPA of3.9 and is the elected President of her Senior Class,

10

Captain of the Varsity Cheerleading Team, member of the National Honors Society, a

11

Peace Ambassador for "H.E.A.R.T" at her school, adviser for fi"eshmen stndcnts in a

12

program called Link Crew, and a member of the Community Coalition.

13

55. The plaintiffDanie1 De Jesus Herrera is a Latino senior at Theodore Roosevelt High

14

School, an LAUSD public school, and has applications for admission pending with UCLA

15

and UCB. He currently has a GPA of 4.2 and an SAT score of 1560. He is a member of the

16

Math, Engineering and Science Club (M.E.S.A), a member of the Humanities Leadership

17

Clnb, a member of the Califomia Scholarship Federation, and a member of the baseball

18

team.

19

56. The plaintiff Brenda Iglesias is a Latina senior at Bravo Medical Magnet High School, an

20

LAUSD public school, and has applications for admission pending with the UCLA and the

21

UCB; she currently has a GPA of 4.276 and an SAT score of 1860. She is a member of the

22

National Honors Society, the Science Bowl Team, the varsity swim team, the club swim

23

team, and the water polo team.

24

COMPLAINT FOR DEC AND INJ RELIEF

12

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57. The plaintiff Jessica Jimenez is a Latina senior at Theodore Roosevelt High School, a

2

neighborhood LAUSD public school, and has an application for admission pending with

3

UCB. She currently has a GPA of3.8 and an SAT score of 1400. She is the president of the

4

Mentoring Club, was president of the Bible Club in her sophomore year, and has been and

5

continues to be a member of the UCB Pre-Collegiate for the past two years.

6

58. The plaintiff Sarah Kim is a Korean American senior at Bravo Medical Magnet High

7

School, an LAUSD public school, and has applications for admission pending with UCLA

8

and UCB; she currently has a GPA of4.038 and an SAT score of2000. She is a member of

9

the National Honors Society, the leader of the Jazz Band Music Ensemble, vice president

10

of the Anti-Defamation League, President of the Los Angeles division of the Achiever

II

Club TAC, member of the California Scholarship Federation, member of the swim team,

12

member of the Korean Club, vice president of the Peace Church Youth Group, and a

13

pianist with the Worshiper Praise Team.

14

59. The plaintiffNayeli A. Maravillas, by her next friend Martin Maravillas, is a Latina senior

15

at Bravo Medical Magnet High School, an LAUSD public school, and has an application

16

for admission pending with UCLA. She currently has a GPA of a 3.0 and an SAT score of

17

1590, and is a member of the junior varsity debate team.

18

60. The plaintiff Gabriela Mmtinez, by her next friend Dora Martinez, is a Latina senior at

19

Bravo Medical Magnet High School, an LAUSD public school, and has applications for

20

admission pending with the UCLA and the UCB. She currently has a GPA of 3.2 and an

21

SAT score of 1500; she is a representative of the Anti-Defamation League, co-captain of

22

the swim team, a member of Random Acts of Kindness, the Foster Club, the Gay Straight

23

Alliance, the Film Club, and the Beatles and Music Club. She also led the political and

24

legal fight to maintain the swim team at Bravo Medical Magnet High School.

COMPLAINT FOR DEC AND INJ RELIEF

13

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61. The plaintiff Gladys Morales, by her next friend Rocio Morales, is a Latina senior high

2

school student at Theodore Roosevelt High School, a neighborhood LAUSD public school,

3

and has applications for admission pending with UCLA and UCB. She currently has a

4

GPA of 4.25 and an SAT score of 1790; she is the treasurer and secretmy ofM.A.Y.A., a

5

member of the Academic Decathlon, a senator for the senior class and a member of Talent

6

Search Girl Talk (TELACU).

7

62. T11e plaintiff Han Kyul Noh, by his next fi·iend Lucia Noh, is a Korean Ame1ican senior at

8

Bravo Medical Magnet High School, an LAUSD public school, and has an application for

9

admission pending with the UCLA. He currently has a GPA of a 4.0 and an SAT score of

10

2110. He is a member of the National Honors Society, president of the Key Club, a

11

member of the varsity volleyball team, a member of the Korean Club, a member of the

12

Korean Coalition of Students in California, and a member ofthe Korea Town Youth and

13

Community Center.

14

63. The plaintiff Auria Perez is a Latina junior at Crenshaw High School, a neighborhood

15

Los Angeles public school, and has applications for admission pending with UCLA and

16

UCB.

17

64. The plaintiff Maria Elena Polanco, by her next fi·iend Adela Santibana, is a Latina senior at

18

Theodore Roosevelt High School, a neighborhood Los Angeles Public School, and has

19

applications for admission pending with UCLA and UCB; she currently has a GPA of 4.25

20

and an SAT score of 1440. She is a member of the volleyball team, senator for the senior

21

class in the Associated Student Body- Student Council, and president ofM.A.Y.A., which

22

is a math, English and science academy within the school.

23

65. The plaintiffMerari Ramirez is a Latina senior at Bravo Medical Magnet High School, an

24

LAUSD public school, and has applications for admission pending with UCLA and UCB;

COMPLAINT FOR DEC AND INJ RELIEF

14

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I

she currently has a GPA of a 3.67 and an SAT score of 1630. She is a member and

2

historian of the Anti-Defamation League, on the staff of the Yearbook Conm1ittee, member

3

of the Association of Professionals and Students, and a Folklorico dancer.

4

66. The plaintiff Nancy J. Rodriguez, by her next friend Lucia Castillo, is a Latina senior at

5

Theodore Roosevelt High School, a neighborhood LAUSD public school, and has

6

applications for admission pending with UCLA and UCB. She has a GPA of 3.6 and an

7

SAT score of 1500. She is the treasurer for the Associated Student Body- Student

8

Council, a Peer-to-Peer mentor, treasurer for the Student Advisory Council, treasurer for

9

the Bible Club, a member ofTELACU and a tutor for A-Star.

10

67. The plaintiff Dominique Short-Thomas is a black student who is graduating from

II

Skyline High School in Oakland, and has applications pending for admission to UC

12

Berkeley and UCLA. Her GPA is currently 3.9 and her SAT score is 1550. She is a

13

member of the Track Team and the Student Council. She also builds and programs

14

robots.

15

68. The plaintiff Alejandro Solis, by his next friend Rosa Desmmaux, is a Latino senior at

16

Theodore Roosevelt High School, a neighborhood LAUSD public school, and has

17

applications for admission pending with UCLA and UCB. He currently has a GPA of

18

3.47 and an SAT score of 1550. He is a member of the Academic Decathlon and a

19

member of the Keystone Leadership Group.

20

69. T11e plaintiff Jasmine Tovar, by her next friend Luz Tovar, is a Latina senior at King/Drew

21

Medical Magnet High School, a Los Angeles Unified School District (LAUSD) public

22

school, and has an application for admission pending with UCLA. She has a GPA of3.9

23

and an SAT score of 1440; she is currently a member of Junior Statesmen of America, the

24

COMPLAINT FOR DEC AND INJ RELIEF

15

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page16 of 48

Califomia Scholarship Federation and Ocean Challenge, as well as an intem for You

2

Think.

3

70. The plaintiff Brenda Tmjillo is a Latina junior at Oakland Teclmical High School's Health

4

Academy who wants to apply to UC and become a veterinarian. If she enters UC, she

5

would be the first person in her family to go to college. She is currently volunteering at a

6

veterinary hospital.

7

7 I. The plaintiff Jose Roberto Valenzuela is a Latino third year undergraduate student at the

8

University of Califomia Los Angeles (UCLA) and upon graduation will be applying to the

9

law schools of UCLA and the University of California Berkeley. He currently has a grade

10

point average (GPA) of3.29. He is a member ofBAMN, treasurer of Hermanos Unidos,

11

and a member of the Latin American Sh1dcnt Association.

12

72. The plaintiff Ruby Villarruel, by her next friend Olivia Villarmel, is a Latina senior at

13

Theodore Roosevelt High School, an LAUSD public school, and has applications for

14

admission pending with UCLA and UCB. She cunently has a GPA of 4. I9 and an SAT

15

score of 1780. She is the historian of the Design Team One, and editor ofthe Newspaper

16

Club.

17

73. Jerrica Webb is a black senior at Skyline High School in Oakland, California. She is an

18

intern at the Ella Baker Center for Human Rights.

19

74. Amber Williams, by her next friend Carlette King-Williams, is an 8th grade black

20

student who attends Martin Luther King, Jr. Middle School in Berkeley. Her current

21

GPA is 3.0 and she intends to apply to UC Berkeley and UCLA. She is active in the

22

Black Student Union and also trains in dance.

23

75. The plaintiff Ricardo Zazueta is a Latino senior at Theodore Roosevelt High School, a

24

neighborhood LAUSD public school, and has an application for admission pending with

COMPLAINT FOR DEC AND INJ RELIEF

16

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page17 of 48

UCLA. He currently has a GPA of3.4 and an SAT score of 1450. He is the Drum

2

Captain of the Roosevelt High School Marching Band.

3

University of California and other college student plaintiffs

4

76. The plaintifflssamar Camacho is a Latina graduate of Roosevelt High School in Los

5

Angeles, who is on leave fi·mn the University of California at Berkeley and plans to apply

6

to its graduate schools upon her graduation from its undergraduate college. She is a

7

member ofBAMN and has run for ASUC student government vice president of external

8

affairs as a candidate with the Defend Affirmative Action Party (DAAP).

9

77. Maria Belman is a third year Latina second-year student at UC Berkeley who intends to

IO

apply to UC Berkeley and UCLA Law Schools. Her GPA 3.0. She is a member of

I I

BAMN.

12

78. The plaintiff Calvin Jevon Cochran is a black student who is finishing his courses at

13

Laney and Berkeley Community Colleges. His GPA is currently a 3.8 and he has an

14

application pending for admission to UC Berkeley. He is active with various student

15

justice organizations.

16

79. The plaintiff Jeremy Bamidele is a black student at the University ofCalifomia at

17

Berkeley.

18

80. The plaintiff Jonathan Brooks is a black student majoring in Theater and Perfmmance

19

Studies at UC Berkeley.

20

81. The plaintiff Bianca Centeno is a Latina first year undergraduate student at the UCLA and

2I

upon graduation will be applying to the law schools of UCLA and UCB; she currently has

22

a GPA of3.0 and is an active member ofHermanas Unidas.

23

82. The plaintiff Veronica Donerson is a black third-year undergraduate student at the UCLA,

24

and will be applying to the medical school at UCLA upon graduation. She currently has a

COMPLAINT FOR DEC AND INJ RELIEF

!7

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page18 of 48

I

GPA of3.0 and is a volunteer for Riordan Health Care Management, a member of For Real

2

History and Hope of Our People (4REAL), and NOMMO Black News Magazine.

3

83. The plaintiff Jose Flores is a Latino freshman at UC Berkeley.

4

84. The plaintiff Gabriela Galicia is a Latina student and alumna ofUC Berkeley. She intends

5

to become a lawyer and apply to Berkeley Law School.

6

85. The plaintiff Jose Garcia is a Latino shrdent at City College of San Francisco.

7

86. The plaintiff Anthony Keoki Gracia is a Latino and Hawaiian student at UC Berkeley.

8

87. The plaintiffRabiah Hanison is a black student shrdying engineering at City College of

9

San Francisco.

I 0

88. The plaintiff Rose Anita Hernandez is a Latina third-year student at UCLA and upon

I I

graduation will be applying to the law schools of the University of California Berkeley and

12

the University of Califomia San Diego. She cunently has a 3.4 GPA and is active in

13

various minority tutoring programs at UCLA.

14

89. Zaira Hernandez is a third-year Latina student at the University of Califomia at

15

Berkeley. Her GPA is 3.8, and she intends to apply to UC Berkeley and UCLA for Law

16

School. She regularly stages her mtwork and also studies herbalism.

17

90. The plaintiff Dominique Lofgren is a Filipina and Swedish undergraduate student studying

18

sociology, anthropology, and black feminism at UC Berkeley.

I 9

91. The plaintiff Antonio Love is a black student at UC Berkeley.

20

92. The plaintiff Javier Meza is a Latino student at UC Berkeley.

21

93. The plaintiff Jalima Morales is a Latina student at City College of San Francisco.

22

94. The plaintiff Aislyn T. Namanga is a black second-year undergraduate student at UCLA

23

and upon graduation will be applying to the law schools of UCLA and the University of

24

Califomia Berkeley (UCB). She has a 3.I GPA and is a member ofBAMN.

COMPLAINT FOR DEC AND INJ RELIEF

18

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page19 of 48

I

95. The plaintiffNieholas Ogbuehi is a black sh1dent studying molecular and cell biology at

2

UC Berkeley.

3

96. The plaintiff Japhinma Power is a black sophomore studying engineering at UC Berkeley.

4

He has run for the student government senator as a candidate with the Defend Affirmative

5

Action Party (DAAP).

6

97. The plaintiff Aaron Sampson is a black student at UC Berkeley.

7

98. The plaintiff Andrew Sanchez is a Latino student at UC Berkeley.

8

99. The plaintiff Desiree Tienturier is a Middle Eastern student at UC Berkeley.

9

Defendants

10

100. The defendant Amold Schwarzenegger is the Govemor of the State ofCalifomia and is

II

joined in his official capacity.

12

101. The defendant Regents of the University of California ("the Regents") is the duly

13

appointed corporation that administers the public trust of the University of California

14

pursuant to the terms of Article 9, Section 9 of Constitution of the State of California.

15

102. The defendant Mark Yudofis the President of the University of California and is joined in

16

his official capacity.

17

18

CLASS ACTION

19

103. Pursuant to Rule 23(b)(2), the plaintiffs may maintain this action as a class action because

20

the defendants are acting on the basis of Proposition 209, which is common to all members

21

of the class.

22

I 04. The plaintiffs represent the following classes or subclasses:

23

a. The class of all black, Latina/a and Native American applicants to and students at any

24

school or campus of the University ofCalifomia;

COMPLAINT FOR DEC AND INJ RELIEF

19

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page20 of 48

b. The class of all black, Latina/o, and Native Amctican and other residents who want to

2

lobby for changes in the admission and other policies of the defendant universities in

3

order to secure the admission of more black, Latina/o and Native American

4

applicants to the University of California.

5

I05. The classes set forth above are so numerous that joinder is impracticable.

6

106. The question of the validity of Proposition 209 is common to the claims of the class.

7

I07. The claims of the named black, Latina/o, and Native American students and applicants

8

are typical of the claims of the class of such stndents.

9

108. The claims of the named organizations and the individual citizens are typical of the class

10

of citizens seeking change in admission and other policies that are beneficial to

11

minorities.

12

109. The representative plaintiffs will fairly and adequately represent the interests of the

13

classes they seek to represent.

14

15

STATEMENT OF FACTS

16

A. The mission of the University ofCalifomia and the normal procedures by which its

schools adopt their admission policies.

17

18

110. In 1868, the state of California chartered the University of California as a land grant

19

university.

20

111. In its Constitution, the state declared that the University was a public trust and granted

21

the Regents,

22

... 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

23

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

24

real property, and purchasing of materials, goods, and services.

COMPLAINT FOR DEC AND INJ RELIEF

20

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page21 of 48

Cal Const, art 9, sec 9.

2

112. From the beginning, the Regents asserted full control over the admission policies of the

3

University.

4

113. In 1960, the state's new Master Plan for higher education established that the UC was to

5

admit the top 12.5 percent of the state's high school students.

6

114. Under the Master Plan, the Regents asserted and retained full power to determine the

7

criteria for which students were "UC eligible" and to determine the categories of

8

exceptions to those criteria.

9

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

10

115. Echoing Lincoln and thus of Emancipation and Reconstruction, Daniel Coil Gilman, one

11

of the first Presidents of the University of California, proclaimed in 1872 that it should

12

become a university "of the people and for the people not in any low or unwmthy sense,

13

but in the highest and noblest relation to their intellectual and moral well-being."

14

116. Following that goal, the UC has fiom its founding provided an opportunity for students

15

from lower social and economic backgrounds by vmying its eligibility and admission

16

criteria and by awarding plus factors to those from such backgrounds.

17

117. But even though the University maintained a policy of non-discrimination by race

18

throughout its histmy, there were few black, Latina/o., Native American or Asian until

19

the 1960s.

20

118. Before 1970, any student who was "UC eligible" could attend the undergraduate college

21

of his or her choice.

22

119. Beginning in the early 1970s, however, the number of applicants applying to the most

23

prestigious campuses, including especially those at Berkeley and UCLA, exceeded the

24

number of spaces available at those campuses.

COMPLAINT FOR DEC AND INJ RELIEF

21

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page22 of 48

120. The Regents formed general standards for admission to the oversubscribed campuses

2

and delegated to the local administrations and faculty the task offonnulating more

3

specific standards for admission to each campus of the UC.

4

121. The Regents or the local administrations therefore established grade point averages,

5

extra credit for advanced placement courses, scores on standardized tests, and similar

6

factors as admission criteria for the oversubscribed campuses.

7

122. In keeping with its stated commitment to social and economic equality, the Regents

8

directed, authorized or allowed the individual campuses to consider the applicants'

9

economic, social and geographic backgrounds and similar factors in order to assure that

I 0

students from a variety of different backgrounds were admitted to the UC and to each of

II

its campuses.

12

123. Even though the UC has and still has a far higher than average balance in the economic

13

backgrounds of students attending the various UC, those factors standing alone have not

14

admitted black, Latina/o and Native American students because racial inequality has

15

been both deeper and distinct from economic inequality.

16

124. Under pressure from the Civil Rights Movement and student and urban protests, the UC

17

began in the 1960s to va1y its eligibility criteria in order to ensure that more black,

18

Latina/o, and Native American students were eligible for admission to the UC.

19

125. Similarly, after 1970, the Regents and the individual campus administrations adopted the

20

first affirmative action programs in order to assure that larger numbers of Latina/o, black

21

and Native American students were actually admitted to the most selective campuses.

22

126. The new affirmative action policies adopted the explicit consideration and the plus

23

factms that had been used to temper the other educational inequalities that the UC's

24

traditional criteria captured.

COMPLAINT FOR DEC AND INJ RELIEF

22

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page23 of 48

127. But because racial inequality was both different and far larger than inequality caused by

2

any other factor, explicit consideration was even more nccessmy and the plus factors had

3

to be larger in order to counteract inequality that far exceeded that caused by all other

4

factors.

5

128. The new affinnativc action programs resulted in a rapid and significant increase in the

6

number of black, Latina/a and Native American students at all of the UC campuses-

7

and ultimately to new minority attorneys, doctors, business and political officials, and

8

leaders in almost cve1y field.

9

129. From time to time, the Regents or its subordinate bodies or officials changed the

I 0

affirmative action plans due to educational experience, increasing knowledge about its

II

other admission criteria, changing legal requirements, the growing minority population

12

of the state, or other similar factors.

13

130. Until the passage of Proposition 209 in 1996, however, the Regents had full power over

14

all aspects of the admission policy-including full power to change any aspect of those

15

policies by majority vote of the Regents.

16

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

17

131. In 1995, Ward Conncrly, a Regent whom Governor Pete Wilson had just appointed,

18

began a campaign against affirmative action.

19

132. Conncrly and Wilson used the difference in GPAs and test scores between white

20

students and Latina/a, black and Native American students as the excuse to appeal to

21

prejudice by labeling affirmative action as "racial preferences."

22

133. Connerly and Wilson's attack was fundamentally dishonest because both of them knew

23

that the admission criteria both captured and magnified the inequality caused by the de

24

facto segregation and inequality in elementary and secondary education.

COMPLAINT FOR DEC AND INJ RELIEF

23

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page24 of 48

1 134. But the attack was politically effective because it appealed to many white residents who

2

felt they were being left behind in a state that was rapidly changing.

3

135. To their credit, all nine chancellors of the UC campuses opposed Connerly's efforts.

4

Both they and the admissions officers specifically warned the Regents that banning

5

affirmative action would result in sudden and severe drops in Latina/a, black, and Native

6

American student enrollment.

7

136. Connerly and Wilson pressed ahead, however, and, in July 1995, they secured the

8

Regents' approval of SP-1 which banned any constituent part of the University from

9

considering race in admitting students for any purpose, including attempts to ensure that

10

the entering classes were racially diverse and integrated.

11

137. As Conncrly wrote in his autobiography, he feared that the Regents would reverse their

12

vote if the normal democratic processes remained in place.2

13

138. Connerly therefore agreed to lead the drive to pass Proposition209.

14

139. Like the Southern segregationists who put the grandfather clauses, literacy tests, and

15

other similar laws into the Constitution where they could not be changed, Connerly and

16

Wilson decided to put the ban on affirmative action in California's Constitution where it

17

would be difficult, if not impossible, to change.

18

140. In November 1996, the white majority of California's electorate provided the votes to

19

pass Proposition 209 by a margin of 54 to 46 percent.

20

141. The immediate effects were devastating. In the first year in which it was effective,

21

Latina/a, black, and Native American student admissions at UC-Berkeley fell by 52.1

22

23

24 2 Connerly, Ward. Creating Equality, p. 165-166.

COMPLAINT FOR DEC AND INJ RELIEF

24

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page25 of 48

I

percent, admissions at UCLA fell by similarly large numbers, and the effect in some of

2

the UC's law, medical and other schools was even worse. 3

3

142. In the years since, minority students have been driven from the campuses at Berkeley

4

and UCLA onto the campuses of the less selective UC campuses.

5

143. Thus, in the freshman class that was admitted for Fall2009, Latina/o, black, and Native

6

American students comprised of 17.7 and 19.4 percent of the new admits at UC-

7

Berkeley and UCLA respectively, but 33.5 percent and 34.4 percent of the new admits at

8

UC-Riverside and UC-Merced respectively.• Proposition 209 resulted in a dramatic

9

redistribution ofLatina/o, black, and Native American students out ofUC-Berkeley and

10

UCLA and into less selective C campuses. (Ex 5-6)

II

I 44. Even with these increases in minority admissions at the newer and less selective

12

campuses, the percentage of Latina/o, black and Native American students in UC as a

13

whole has not kept pace with the rising percentage of those groups among high school

14

graduates of the state (Ex 1-3).

15

145. The number of underrepresented minority students at the UC's flagship campuses of

16

UC-Berkeley and UCLA has lagged far behind the rapid growth of California's minority

17

student population, including in particular its Latina/o population.5 (Ex 7)

18

146. The UC's most selective graduate schools are faring even worse. In 2005, the most

19

recent publicly available data, the Latina/o, black, and Native American students

20

21

22
23 3 Data from UC Office of the President. http://www.ucop.edu/news/studstaff.html 4 Ibid.
24 5 Ammal UC Office of the President diversity report to the UC Regents. http://www.universityofcalifornia.edu/regentslregmeet/nov09/j2f.pdf

COMPLAINT FOR DEC AND INJ RELIEF

25

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page26 of 48

comprised only 12 percent of new law students, 17 percent of new medical students, and

2

4.5 percent of new business students. 6 (Ex 8)

3

147. Indeed, in2008, underrepresented minority students comprised only 5 percent of all

4

graduate students in engineering and computer sciences.

5

148. The UC's various schools have attempted to mitigate the sharp drop in minority

6

admissions by adopting a "comprehensive review" of applications, by varying the

7

standardized tests, by admitting the top four percent of graduates from any high school,

8

by decreasing the weight of the tests, and by other policies.

9

149. None of these measures, however, have had more than a minor effect.

10

!50. Moreover, the effects of budget cutbacks are now ove1whelming some of these

II

measures.

12

151. Today, the UC and its most selective campuses in pmticular accept a far lower

13

percentage of the Latina/o, black and Native American students who apply than those

14

fro;n any other racial group.7 (Ex 9)

15

152. The Regents themselves have recognized that all of their efforts to prevent the decline in

16

Latina/o, black and Native American enrollment cannot be successful as long as

17

Proposition 209 remains in effect. Thus, in 2001, the Regents repealed SP-1 and have

18

issued report after report documenting the disastrous fall in minority enrollment.

19

153. But as the Regents have recognized, as long as Proposition 209 prohibits affirmative

20

action, they cannot fundamentally alter the increasing distance between the racial

21 6 "Report of the Work Team on Graduate and Professional School Diversity," p. 14 (Sept. 2007). http://www.universityofcalifornia.edu/regentslregmeet/nov09/j2f.pdf
22 7 At UC-Berkeley in the Fall2009 entering class, 17.8% of black freshman applicants and 21.8% ofLatina/o fi"eshman applicants received admission offers, compared to 31.1% of white
23 applicants and 31.9% of Asian American applicants. At UCLA, black and Latina/o freshman applicants were similarly admitted at two-thirds the rate white and Asian American applicants
24 were admitted. (Data obtained from University of California Office of the President: http://www.ucop.edu/news/studstaff.html)

COMPLAINT FOR DEC AND INJ RELIEF

26

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page27 of 48

I

composition of student bodies at the UC and the racial composition of the state as a

2

whole and of its high school graduates in particular.

3

D. The standards for determining UC eligibility and admission to the various schools of the

UC are not, and never have been, racially neutral.

4

154. From the beginning, the opponents of affirmative action claimed that it discriminated

5

against white people and men by departing from an allegedly neutral system and giving

6

"preferences" to minority students.

7

155. There is not now, and never has been, any truth to this claim.

8

156. Indeed, it is generally recognized that granting plus factors for lower socio-economic

9

status, rural backgrounds, and similar factors is not "discrimination" or "preferences,"

10

but rather recognition of that form of inequality and a legitimate means to achieve a

II

diverse and integrated class.

12

157. But racism is so strong that when the same policy is applied to race, it suddenly is called

13

a "preference."

14

158. The simple fact is, however, that California has for many decades maintained a system

15

of elementary and secondary education that is separate and unequal.

16

159. Due to pervasive residential segregation, almost all black students and the overwhelming

17

majority of Latina/o students attend urban schools that are almost totally segregated.

18

Similarly, most Native American students attend segregated schools on the rese1vations

19

or segregated schools in the urban centers where they now live.

20

160. As is undisputed by serious observers, segregated schools and, even more so, intensely

21

segregated schools, have fewer facilities, fewer certified teachers, fewer resources, fewer

22

AP and honors programs, smaller or non-existent libraries, fewer counselors, less

23

knowledge about university admission systems, more overcrowding, and a host of other

24

disadvantages.

COMPLAINT FOR DEC AND INJ RELIEF

27

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page28 of 48

161. Moreover, segregated schools almost always have concentrated poverty, unlike that

2

found in almost all schools that are majority white. That concentration means that poor

3

minority students, unlike poor white students, almost never have the educational

4

advantages that come from attending schools with those who are more economically and

5

educationally privileged.

6

162. Beyond these objective factors, segregated schools suffer from the overriding stigma of

7

inferiority, which leads white students and the minority students themselves to devalue

8

their schools and their achievements in ways that profoundly affect the minority

9

students' futures.

10

163. A few black and somewhat more Latina/a and Native American students arc able to

11

escape the world of segregated schools.

12

164. This almost always assures important educational advantages to those students when

13

compared to the educational opportunities available in a segregated school.

14

165. But even in those schools, tracking, racial isolation, racial hostility, the pervasive stigma

15

of inferiority, and a host of other factors mean that they do not receive an education

16

equal to that of their white peers.

17

166. Nor do they receive an education that is equal to students from many Asian

18

backgrounds, who suffer discrimination themselves, but are more integrated into society

19

and who come from economic and social backgrounds that now approximate those of

20

much of the white population.

21

167. The educational segregation and inequality described above necessarily mean that

22

Latina/o, black, and Native American students cannot display as many educational

23

accomplishments on their applications.

24

COMPLAINT FOR DEC AND INJ RELIEF

28

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page29 of 48

1

168. That is not because minority students are less smart or less diligent, as is so often stated,

2

but solely and simply because minority students have been subjected to cnonnous

3

educational disadvantages through absolutely no fault of their own.

4

169. The educational segregation and inequality described above has even greater

5

consequences on the scores on standardized tests that play a cmcial role in the UC's

6

admission standards.

7

170. As shown by numerous studies, differing average test results result from different home

8

income and wealth, different parental education levels, different language backgrounds,

9

and a host of similar factors.

I 0

171. But above and beyond the differences caused by all of these factors, race is the single

II

greatest cause of differing average test scores.

12

172. The causes of those differences is complex and multi-faceted, including the direct effects

13

of segregated and unequal education on the students, bias of various kinds in the tests,

14

serious anxiety among racial minorities taking tests that they fear will be used to brand

15

them inferior and a host of similar factors.

16

173. Even the testing companies have been forced to admit that these tests do not measure

17

intelligence, aptitude or any similar factor--or still less, ambition, courage, or any

18

similar factor.

19

174. As revealed in the fine print of the test manufacturer's claims, the test scores measure, at

20

best, a loose and sometimes non-existent correlation with first-year grades.

21

175. By all accounts, the standardized tests have an cnonnously disparate effect on Latina/o,

22

black and Native American students. In 2007, for example, the College Board revealed

23

that white students had an average combined score on the SAT verbal and math tests

24

COMPLAINT FOR DEC AND INJ RELIEF

29

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page30 of 48

1

that was that was, respectively, 125, 208, and 292 points higher than the average for

2

Native American, Chicano and African-American students.

3

176. This racial gap transcends all income categories. Indeed, as Connerly himself conceded

4

in a deposition, the UC's own statistics show that black students from the highest

5

income brackets score lower Oil average than white students from the lowest income

6

brackets8

7

177. Moreover, at the graduate level, there is evidence that the standardized tests exaggerate

8

the differences between students. Thus, for example, a study of students applying to

9

Boalt Hall showed that black and Latina/a applicants who achieved the same grades in

I 0

the same majors at the same undergraduate colleges scored dramatically lower on

II

average on the LSAT than white applicants whose educational qualifications were

12

essentially identical.9

13

178. Finally, the factors listed are compounded in applications for graduate school by the

14

comparatively small number of minority undergraduate students. This leads to increased

15

isolation-and increased acts of racial insensitivity and hostility from some white

16

students, which compound the challenges that minority students already face at those

17

universities.

18

179. By any standard except that assumed by the Wilson panel, the University's admission

19

criteria are not, and never have been, racially neutral.

20

180. By any standard except that assumed by the Wilson panel, the fight for relief from the

21

University's admission criteria is a fight against discrimination.

22 8 Journal ofBlacks in Higher Education, Summer 1998, p. 6. Accepted by former UC Regent
23 Ward Connerly, affilmative action opponent. (Dep ofConnerly, p. 101-102.) 9 "Docs the LSAT Mirror or Magnify Racial and Ethnic Differences in Educational Attainment?:
24 A Study of Equally Achieving 'Elite' College Students," California Law Review, Vol. 89, No.4.
(2001), pp. 1055-1124.

COMPLAINT FOR DEC AND INJ RELIEF

30

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page31 of 48

1

181. As educational officials have long recognized, in order to recognize talent among

2

Latina/o, black and Native American applicants, it is necessmy to consider their

3

educational credentials in light of all of the social characteristics of the applicant,

4

including, above all, in light of the applicant's race.

5

182. Proposition 209 has, however, outlawed that consideration.

6

183. Under the force oflaw, the university admissions officials are forced to ignore the

7

educational effects of the pervasive de facto segregation, biases in test results, and a

8

myriad of other factors that the officials know must be considered in order to assess a ..

9

minority student's promise-but which they must singularly ignore even as they

10

consider evety lesser form of social inequality.

11

12

E. The Booker T. Washington response.

13

184. In the Michigan litigation challenging a carbon-copy of Proposition 209-which is now

14

pending in the Sixth Circuit-Ward Connerly conceded virtually evety fact set forth in

15

this Complaint.

16

185. He, however, maintained his support for Proposition 209 because, he said, it would

17

administer the "tough love" necessmy to induce minority students to work harder.

18

186. Mr. Connerly's claim that minority students need to shocked into working harder is

19

nothing other than a slightly restrained version of the racist claim that minority students

20

have not succeeded because they are "lazy."

21

187. In fact, minority students already have to and do work far harder just to get to the same

22

place as students from a more privileged background.

23

24

COMPLAINT FOR DEC AND INJ RELIEF

31

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page32 of 48

1

188. Mr. Connerly and some of his supporters also assert that if minority students only secure

2

admission to schools that offer less opportunities, they will be happier there because

3

they are a "better match" for those students.

4

189. But this assertion ignores the fact that Proposition 209 forces the UC and each of its

5

campuses to tum down numerous Latina/a, black, and Native American applicants who

6

are fully qualified to attend those schools and who want to attend those schools because

7

they rightly believe that they are entitled to every educational oppmtunity that is

8

afforded to those who arc far more privileged than they are.

9

190. All of these arguments are simply reprises, in new conditions, of Booker T.

10

Washington's admonitions that black people shottld adjust to segregation by "casting

11

down their bucket where they were," by avoiding any open challenge to the system of

12

segregation, and by hoping that, in time, the "best" clements of the white population will

13

recognized what a loyal workforce they can be.

14

191. Washington's counsel paved the way for segregation, for inequality and for all of the

15

horrors that were used to support that system.

16

192. At the dawn of the 21 '' centmy, the Latina/a and black plaintiffs will not repeat that

17

error by accepting Connerly's advice to work harder and to avoid any confrontation with

18

the system of de facto segregation.

19

193. The plaintiffs will instead fight to strike down Proposition 209 because that law

20

enshrines and perpetuates the pervasive de facto segregation and inequality in the state

21

and because that law can only lead to a disaster for them and for the state as a whole.

22

23

24

COMPLAINT FOR DEC AND INJ RELIEF

32

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page33 of 48

I

COUNTONE

2

RACIAL DISCRIMINATION IN THE STRUCTURE OF GOVERNMENT

3

194. The allegations of the preceding paragraphs are repeated as if fully set forth herein.

4

195.For !50 years, eve1y individual and group has been able to petition the Regents, and the

5

governing officials and faculties at each of the UC schools for the adoption of new

6

policies, changes in the policies, or exceptions in the existing policies in order to

7

facilitate a particular group's ability to secure admission to the UC or to one of its

8

schools.

9

I96. Proposition 209, however, has stripped the Regents of the power to consider or adopt

I 0

otherwise lawful pmposals advanced for one purpose and one purpose alone: facilitating

I I

the admission of black, Latina/o and Native American students.

12

197.By stripping the Regents and the faculties of that power, Proposition 209 has deprived

I 3

minority residents and their supporters of access to the normal pmcedures that all other

I 4

groups may continue to use to win or prese1ve policies that facilitate the admission of

15

their members.

16

I 98. In order to secure changes that are in their interest, Latinalo, black and Native American

17

residents-and they alone-must expend the considerable resources needed for the

I 8

almost certainly impossible task of persuading an electorate that is still majority white to

19

repeal or amend Proposition 209.

20

199. By decreeing that it will be more difficult for minorities to seek aid from the government

21

than it is for any other group, Proposition 209 has violated the Equal Protection Clause

22

in the most literal and fundamental sense.

23

24

COMPLAINT FOR DEC AND INJ RELIEF

33

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page34 of 48

I

200. In its 1997 decision, however, the Wilson panel declared that there was no violation of

2

the Equal Protection Clause because it asserted that minorities were supposedly seeking

3

a "preference" from an otherwise neutral system.

4

201. From the beginning, that decision was based on a false factual premise-in reality an

5

ideological assumption, devoid of any evidence to support it-because the existing

6

admission standards were not racially neutral and demands for relief from them were

7

obviously efforts to fight discrimination. "

8

202.As became clear with the Grutter decision in 2003, the Wilson panel decision was also

9

based on false, indeed non-existent, legal foundations, because, as the Court held, in

I 0

selective universities, affirmative action plans were the only practical means of

II

fut1hering the compelling interest of assuring that students from all racial backgrounds

12

could actually attend the universities that trained most of tomorrow's leaders.

13

203. In 2007, the Supreme Court majority knocked the final prop out from under the Wilson

14

panel decision by holding that its central legal premise-the theory of the color-blind

15

constitution-was inconsistent with the Fourteenth Amendment and could not be used

16

as the Wilson panel did as a guide to policy in all circumstances.

17

204.

Today, Proposition 209 therefore stands in naked violation of the Fourteenth

18

Amendment's ban on relegating minorities to more onerous procedures than other

19

citizens must use when they seek lawful changes in admission policies.

20

21

Wherefore, the plaintiffs ask this Com1 to grant preliminary and permanent injunctive

22

and declaratoty relief restraining the defendants from enforcing Proposition 209 insofar as it

23

applies to the admission, education and graduation of students at the University of California.

24

COMPLAINT FOR DEC AND INJ RELIEF

34

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page35 of 48

The plaintiffs also request such further relief as is just and equitable, including the attorneys'

2

fees and costs of this action.

3

4

COUNTTWO

5

RACIAL DISCRIMINATION

IN VIOLATION OF THE EQUAL PROTECTION CLAUSE OF THE

6

FOURTEENTH AMENDMENT

7

205. The allegations of the preceding paragraphs are repeated as if fully set forth herein.

8

206. Proposition 209 intentionally discriminates against Latina/o, black and Native American

9

applicants in three separate, but interrelated ways.

I 0

207. First, Proposition 209 prohibits the University from pursuing racial diversity and

II

integration even though the University may continue to pursue every other form of

12

diversity and integration.

13

208. Second, Proposition 209 has prohibited the University from considering racial inequality

14

in education in the same way that it considers other, lesser forms of inequality in

15

education.

16

209. Third, Proposition209 explicitly aimed at driving clown and holding clown the numbers

17

of racially-defined groups of students and applicants by forcing the University to apply

18

its normal admission criteria in ways that capture and magnifY the racial segregation and

19

inequality in elementary and secondary education.

20

210. The racial target of 209 is explicit: the only supposedly unclerqualifiecl applicants it

21

targets are those who arc Latina/o, black, or Native American.

22

211. Indeed, Connerly, the primary sponsor of Proposition 209, has explicitly and under oath

23

endorsed a racial goal by declaring that black, Latina/o, and Native American students

24

COMPLAINT FOR DEC AND INJ RELIEF

35

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page36 of 48

I

for some unstated reason will, unlike other students, only respond if they receive a dose

2

of what he calls "tough love."

3

212. In his historic dissent in Plessy, Justice Harlan rightly and strongly rebuked his

4

colleagues because they lacked the simple candor to state that the law requiring separate

5

accommodations on New Orleans' streetcars was obviously intended to exclude, demean

6

and degrade black citizens.

7

213. Simple candor today requires recognizing that Proposition 209 had no goal other than

8

making it nearly impossible for the University to overcome the continuing massive de

9

facto segregation in elementary and secondary education and thus to require it to

I 0

exclude those students from its colleges essentially forever.

II

214.Proposition 209 has achieved its known and intended effect: those students are no longer

12

in those universities in numbers that even remotely reflect their growing share of the

13

young population of the state.

14

215. The Fourteenth Amendment was proposed and ratified to prevent the states from

15

imposing separate legal requirements on persons because of their race-and, if candor is

16

to be prese1ved, a law that requires public officials to approach the admission of racial

17

categories of students in particular ways, that administers "tough love" to categories

18

defined by race, and that results in the exclusion of students because of their race is

19

nothing other than a violation of the letter and purpose of an Amendment that is

20

fundamental to American democracy in a period where the Nation is becoming, for the

21

first time, a Nation that is no longer majority white.

22

23

Wherefore, the plaintiffs ask this Court to grant preliminary and permanent injunctive

24

and declaratory relief restraining the defendants from enforcing Proposition 209 insofar as it

COMPLAINT FOR DEC AND INJ RELIEF

36

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page37 of 48

applies to admissions at the University of California. The plaintiffs further request that this

2

Court award such fu1ther relief as is just and equitable, including the attorneys' fees and costs

3

of this action.

4

5

By Plaintiffs' Attorneys,

SCHEFF, WASHINGTON & DRIVER, P.C.

6

7

BY: Is/Ronald Cruz

Ronald Cruz (State Bar No. 267038)

8

George B. Washington (Michigan P-26201)*

Shanta Driver (Michigan P-65007)*

9

645 Griswold, Suite 1817

Detroit, Michigan 48226

10

510-501-2435 (Ronald Cruz)

313-963-1921 (G. Washington)

11

313-407-4865 (S. Driver)

12

13

Dated: February 15,2010

14

*Applications for admission pro haec vice pending

15

16

17

18

19

20

21

22

23

24

COMPLAINT FOR DEC AND INJ RELIEF

37

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page38 of 48

I CERTIFICATION OF INTERESTED ENTITIES OR PERSONS
2 Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other than the named
3 parties, there is no such interest to report.
4

5

BY: Is/Ronald Cruz

6

Ronald Cruz (State Bar No. 267038)

Februaty 15,2010

7

8

9

10

II

12

13

14

15

16

17

18

19

20

21

22

23

24

COMPLAINT FOR DEC AND INJ RELIEF

38

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page39 of 48

FIGURE 29: The Gap Between California High School Graduates and New UC Freshmen for Underrepresented Minorities, Fall 1989 to 2009

C~.lfornia "~ ·-~ ·~ HPiegrhceSncthagoeoloGf .

Public

"'""".- Underrepres:~t ~ate.s that are

"·" "·" .... ·= •·"

' ' '

. .~ . ~:.. 45.5%

~6.9%

""" 43.9%

44 4'!. 45.1%

, I

I

21.

20.1% 18.2% 18.7% 18.7% 19.2%

16.8% 17.2%

Percentage of New UC Freshmen from

15.3% 15.8%

California Public Schools that are

Underrepresented Minorities

24.1% 24.4% 23,9% 23.7% 23.6% 24,1% 25.3"/i0 26.3% 24.3% 23.2% 22.8% 23.3% 20.8% 21.6%

17.0% 17.5% 17.8% 18.1% 14.2% 12.1%

The Gap (difference)

8.2%

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

May Accountability Report Indicator 3.2
Accountability Sub-Report on Diversity November 2009

~
.~.......
.t.:..d.... >--3
..........
33

FIGURE 30: The Gap Between California High School Graduates and New UC Freshmen African American Students, Fall1989 to 2009

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page40 of 48

Percentage of California Public High School Graduates that are African American

0

7.6Vo o

7.5%

7.4Vo

7.3%

7.2%

7.3

o' 10

7.7%
'

7.2%

7.1%

7.2

o' /0

7.6% 7.4%

7.4% o 7.3Vo 72o'
• /0

4.2% 4.1%

Percentage of New UC Freshmen from California Public Schools that
are African American

-3.0% 3.1% 2.8%

-2.9% 3.1% 3.1% 3.1% 3.4% 1.9%

3.4%

4.5% 4.5%

39.

0

1
10

.... uto

'"'

4.2%
4,:.:/o

42% • 0

41" • /0

4.1%

The Gap (difference)

3.4%

1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009
-~--------~------------------

Accountability Sub-Report on Diversity November 2009

~
co.~.......
...........,.
N
34

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page41 of 48

FIGURE 31: The Gap Between California High School Graduates and New UC Freshmen Chicana/Latino Students, Fall 1989 to 2009

Percentage of California Public High School Graduates that are Chicano/Latino

3 34.5%

32 0% 32.6% 32.9% J.G%

31.0% ·.....: 29.6% 30.0% 30.3% 30.5%

40.4%

~

0,...:.:..:.

,t..o.....

>-3

15.0% 15.4% 15.7% 16.5%

w

15.1% 15.1~o

14 6

14.6%14.0% 13.9% 13.2%

13.2% 13.7% · %

Percentage of New UC Freshmen

from California Public Schools that

are Chica_n.o,(/;Latinoz

>-

13.9% 14.3% 14,6%

6.6%

21.3%

19.3% 19.6% 19.4% 19.2% 19.1% 19.6% 20.3%

19.7%

14.9% 17.QD1I0 17,5%

The Gap (difference)

19,0%

19.0%

19.7%

1989 1990 1991 1992 1993 1994 1995 1996 1997 1996 1999 2000 2001 2002 2003 2004 2005 2006 2007 2006 2009

Accountability Sub-Report on Diversity

35

November 2009

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page42 of 48

FIGURE 18: MINORITY STUDENT ACCESS

11!111 Top Ouanile

. . Bottom Quartile

YeTiow Middle Quartiles I~'Gt$@ Omitted From D.uartiles

.~-;r~.",:.12?,' -"0:"W"}.'7'i\~_~,·cL~U""~i}•i;J11i\ilfiiji)):Y~'.~f.~l ~~--~

2

3

Spring '07 HS Grads,% URM

Fall '07 Freshmen, %URM

Minority Student Access Ratio '07

4
Spring '04 HS · grads,% URM
24.9% 33.3% 24.1% 41.0% 44.0% 21.9% 21.2% 31.3% 38.6%

5
Fall '04 Freshmen, % UAM
30.4% 11.1% 9.6% 21.3% 143% 9.3% 11.1% 11.1% 23.3% 6.8% 4.1%

6
Minorfty Student Access Ratio '04
1.22 0.33 0.40 0.52 0.33 0.42 0.52 0.35 0.60 0.19 064

7
Mmor;ty Student Access Ratio Change, '04-'07
•If
-0~02
.·,om
0.05 0.04 -0.03
•• n:.
0.05
•hi
0.05 ;;t§i$~~~OI:·:::'';c•<l"o;lB ;.y,1'':_'·';'.\1:-:>:<_,j
:=___::_o_o,_:_:_ _ .
-0.18 -017

~ ·· .. : _____Q.oL: __ . -

-0 22 -0.09

::r:

co........
............,.

.j::::.
>

-0.08

.•• _0.96- . -

21.7% 48.9% 8.0%

4.2% 11.9% 22.5% 6.6%

-0.10

-

14 .·. . . . i<.

0,55 :::::::::::-0.10

00..4863

.~W'C:~· .. ·.
. ~ ' ·, ;.:;._:_Jl;1.5..·~~=-s,:t.::J.

27.7%

15.9%

0.57

0.05

2.7%

3.6%

1.33

'l}:f;;

gTon-Seattle Camp

13.8%

9.7%

0.70

0.02.

U. ofW1sconsin-Madison (Wil West Virqinia U. (VWI

12.0%

8.1%

9.8%

7.0%

4.7%

5.9%

-- Ll!2i'l6 _

4.2%

4.7%

0.71

-0.03

1.12

. _-_ _014

~-

U. of W omm (\NV)

9.2%

4.6%

0.50

7.8%

6.0%

0 77

-0.27

Total (excluding lAand HI)

292%

13.4%

0.46

27.4%

12.1%

0.44

0.02

~Be~:~ use Hurricane Katrina created highly unusual circumstances for Louisiana's higher education system in 2005, the srate is omitted 1rom all quartile analyses. •• Hawaii has unique demographics, in which Filipinos and Native Hawaiians are the primary underrepresented populations. Becouse the available dat~ are not disaggregated to separate these groups, the state is omitted !rom the quartile analyses for race. Note: Minority stud ems include African-American, Latino, and American Indian student.s.

'"-·-·-···---·~

THE EDUCATION TRUST] OPPORTUNITY ADRIFT] JANUARY 2010

19

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page43 of 48
EXHIBIT 4B
Segregation Ratio at State Flagship Public Universities (% of Freshman Admits compared to %of State High School Graduates)
Fall 2007 Entering Class
Segregation Ratio
{Freshman Admits I State High School
Graduates)
1.20 - , - - - - - - - - - - - - - - - - - - - - - -
0.80 +--------
0.60 0.40 0.20 0.00
Data taken from The Education Trust. "Opportunity Adrift: Our Flagship Universities Are Straying from their Public Mission," p. 19, Fig. 18.

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page44 of 48
EXHIBIT 5
Percentage of Enrolled Freshmen Who Are Latina/o, Black, or Native American Comparison of UC Campuses Fall 2008

40.00%

% of Underrepresented Minorities

35.00%

30.00%

25.00%

20.00%

15.00%

10.00%

5.00%

0.00% UC Wide Berkeley Davis

Irvine Los Merced Riverside San Santa Santa

Angeles

Diego Barbara Cruz

Data from UC Office of the President, "Table 4 - New California Freshmen Admit Offers by Race/Ethnicity": http://www.ucop.edu/news/studstaff.html

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page45 of 48
EXHIBIT 6

Percent Change in Underrepresented Minority Admissions by Campus, 1995 to 2000

Los Angeles

Berkeley

San Diego

Irvine

Davis

Santa Barbara

UC TOTAL

Santa Cruz

Riverside

-60%

40%

-20%

0%

20%

40%

-60%

80%

100%

Saul Geiser, Carla Ferri, and Judy Kowarsky, UC Office of the President Academic Services, "Admissions Briefing Paper- Underrepresented Minority Admissions at UC after Sp-1 and Proposition 209: Trends, Issues and Options"), p. 11 )(November 2000): http://www. ucop. edu/sas/resea rchandpla nning/admbriefpaper. pdf

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page46 of 48
EXHIBIT 7
Trend Graph Comparing Percentage of California High School Graduates Who Are Latina/o, Black, or Native American to the Percentages of Admitted UC-
Berkeley and UCLA Freshmen Fall 2008 Entering Class

50.0%

45.0%
- 40.0%
35.0%

30.0%

25.0% ~·'-

~

20.0%

15.0%

' ~•/

-~--·

10.0%

........ %HSgrads ""'"~% UCB Admits
- % UCLA Admits

5.0%
0.0% +--~-~-~-~-~-~-~-~-~-~-~----., 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008

High School Graduate Data from Education Data Partnership and California Department of Education, "Graduates By Ethnicity in Public Schools": http://www.eddata.k12.ca.us/StudentTrendsNew.asp?reportNumber-128&fyr-2008&1evei-04&report-gradsbyethnici
!Y
Freshman Admissions Data from UC Office of the President, "Table 4- New California Freshmen Admit Offers by Race/Ethnicity": http://www.ucop.edu/news/studstaff.html

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page47 of 48

EXHIBIT 8
Trends Over Time Even prior to SP-1 and Proposition 209 (i.e., prior to fall 1997), enrollments ofURMs were low in UC professional schools. Following SP-1 and Proposition 209, URM applications to and enrollments in UC professional schools declined dramatically (figure 14).

Figure 14- URMs as a Percentage of New Enrollments in UC's Three Largest Professional Programs*
(U.S. Citizens and Permanent Residents Only)
25%

20%
..
iii 15%
0 (J)
:0ol!
"'I() 10%
5%

~ M.D . J.D. MBA

0% +-----.----,-----.----.-----,----,,----.-----.----.----,,----,----~ 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005
'M.D. ma\rics do no! Include partnership programs (e.g. UCLA-Drew University), which would rmse figures 1-2%. J.D. melrics include UC Hasl!ngs. If Hastings Is not included, lhe% URMs increases (between 1-4% over 15 years). MBAmelrics do not include- Executive MBA and Fully-Employed MBA programs II included, the% URMs decreases by less than 1%. MBA data not available for 1994.

Reproduced from "Report of the Work Team on Graduate and Professional School Diversity," p. 14 (Sept. 2007). http://www.universityofcalifornia.edu/regents/regmeet/nov09/j2f.pdf

Case3:10-cv-00641-SC Document1 Filed02/16/10 Page48 of 48
EXHIBIT 9
Percentage of Freshman Applicants to UC-Berkeley Who Received Admission Offers Fall 2009 Entering Class

•% of Freshman Applicants Admitted for Fall 2009

Latina/a

Black Asian American White

Freshman Admissions Data from UC Office of the President: http://www.ucop.edu/news/studstaff.html

 
 1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

United States District Court
For the Northern District of California

7 COALITITION TO DEFEND AFFIRMATIVE ) Case No. 10-641 SC

ACTION, INTEGRATION AND IMMIGRANT )

8

RIGHTS AND FIGHT FOR EQUITY BY

) ORDER RE: MOTION TO

9 ANY MEANS NECESSARY, et al.,

) INTERVENE AND DEFENDANTS' ) MOTIONS TO DISMISS

10

Plaintiffs,

)

)

11

v.

)

12

ARNOLD SCHWARZENNEGER, in his

) )

13 official capacity as Governor of ) the State of California, REGENTS )

14 OF THE UNIVERSITY OF CALIFORNIA, )

and MARK YUDOF, in his official )

15 capacity as President of the

)

16 University of California,

)

)

17

Defendants.

)

)

18

_________________________________ )

19 WARD CONNERLY, AMERICAN CIVIL

) )

20 RIGHTS FOUNDATION, and CALIFORNIA )

ASSOCIATION OF SCHOLARS,

)

21

)

Proposed

)

22

Intervenor-Defendants. )

23

24

Plaintiffs Coalition to Defend Affirmative Action, et al.

25 (collectively, "Plaintiffs") bring this action challenging the

26 constitutionality of Section 31 of Article I of California's

27 constitution ("Section 31"), as it applies to the student admission

28 policies of the University of California. ECF No. 1 ("Compl.").

United States District Court
For the Northern District of California

1 Section 31 prohibits California from granting preferential

2 treatment to "any individual or group on the basis of race, sex,

3 color, ethnicity, or national origin in the operation of public

4 employment, public education, or public contracting." Cal. Const.

5 art. I, § 31. It was added as an amendment to California's

6 constitution in 1996 by Proposition 209, a voter initiative. See

7 Compl. Named as Defendants are University of California President

8 Mark Yudof ("Yudof") and the Regents of the University of

9 California ("UC Regents") (collectively, "UC Defendants"), as well

10 as California Governor Arnold Schwarzenegger ("the Governor"). Id.

11

This is not the first challenge to the constitutionality of

12 Section 31 as it applies to the student admission policies of

13 California's state-run schools. In a pre-enforcement action

14 brought in 1996, the Ninth Circuit found Section 31 to be

15 constitutional. Coal. for Econ. Equity v. Wilson, 122 F.3d 692

16 (9th Cir. 1997). The Governor and UC Defendants have not brought a

17 motion to dismiss Plaintiffs' action under Coalition for Economic

18 Equity, however. Rather, the Governor and UC Defendants have filed

19 separate motions arguing that under the Eleventh Amendment, they

20 are immune from the suit and are not the proper defendants in this

21 action. ECF Nos. 8 ("Gov.'s Mot."), 9 ("Gov.'s Mem. of P. & A."),

22 30 ("Opp'n to Gov.'s Mot."), 33 ("Gov.'s Reply"), ("UC Defs.'

23 Mot."), 28 ("Opp'n to UC Defs.' Mot."), 34 ("UC Defs.' Reply").

24 The Governor argues that UC Defendants are the proper defendants,

25 Gov.'s Mem. of P. & A. at 5, 8-9, while UC Defendants argue that

26 the Governor is the proper defendant, UC Defs.' Mot. at 1-2.

27

Upon consideration of the parties' papers, and without

28 expressing an opinion on the ultimate issue in the case, the Court

2

United States District Court
For the Northern District of California

1 finds that both the Governor and UC President Yudof are proper

2 defendants in this action. Neither the Governor nor Yudof are

3 shielded by the Eleventh Amendment from defending this suit because

4 they are both state officers sufficiently connected to the

5 enforcement of Section 31 and because Plaintiffs seek only

6 injunctive relief that does not implicate the state treasury. Ex

7 parte Young, 209 U.S. 123, 156-57 (1908), Agua Caliente Band of

8 Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000).

9 Yudof is sufficiently connected through his role as UC President.

10 The Governor is sufficiently connected because under California's

11 constitution, the Governor serves as an ex officio UC regent, Cal.

12 Const. art. IX, § 9(a), and per the UC Regents' Bylaws, the

13 Governor serves as President of the UC Regents -- a position

14 distinct from Yudof's position as UC President. Bylaw 21.2,

15 Regents of Univ. of Cal. Bylaws. However, because the UC Regents

16 is a state entity, see Cal. Const. art. IX, § 9(a), it is immune

17 under the Eleventh Amendment from defending this suit and is

18 dismissed as a Defendant. Pennhurst State Sch. & Hospital v.

19 Halderman, 465 U.S. 89, 100 (1984). The Court DENIES the

20 Governor's motion to dismiss Plaintiffs' Complaint under Rule

21 12(b)(6) of the Federal Rules of Civil Procedure, finding that the

22 Complaint sets forth sufficient facts to state a claim against the

23 Governor and provides notice of this claim.

24

Also before the Court is a fully briefed Motion to Intervene

25 as defendants, filed by Ward Connerly ("Connerly"), former UC

26 Regent and original sponsor of Proposition 209; American Civil

27 Rights Foundation ("ACRF"); and California Association of Scholars

28 ("CAS") (collectively, "Proposed Intervenors"). ECF Nos. 18

3

United States District Court
For the Northern District of California

1 ("Prop. Intervenors' Mot."), 29 ("Opp'n to Prop. Intervenors'

2 Mot."), 35 ("Prop. Intervenors' Reply & Mot. to Strike"). Proposed

3 Intervenors make this motion under Rules 24(a) and (b) of the

4 Federal Rules of Civil Procedure. Proposed Intervenors attach to

5 this motion a draft of a motion they intend to file if they are

6 permitted to intervene, in which they argue that Plaintiffs' case

7 should be dismissed in light of Coalition for Economic Equity, 122

8 F.3d 692. Prop. Intervenors' Mot. Ex. A ("Prop. Intervenors' Draft 9 MTD").1

10

The Court finds that Connerly and ACRF may intervene as

11 Defendant-Intervenors pursuant to Rule 24(a); Connerly and ACRF

12 have filed a timely motion to intervene in which they assert an

13 interest in this suit that may not be adequately represented by the

14 Governor and the UC Defendants. Sagebrush Rebellion, Inc. v. Watt,

15 713 F.2d 535, 527 (9th Cir. 1983). For these reasons, Connerly's

16 and ACRF's motion to intervene is GRANTED. The Court DENIES CAS's

17 motion to intervene under Rule 24(a) and (b), having found that CAS

18 has failed to identify a substantial interest in the action.

19

For these reasons, the Court GRANTS IN PART and DENIES IN PART

20 UC Defendants' Motion, DENIES the Governor's Motion, and GRANTS IN

21 PART and DENIES IN PART Proposed Intervenors' Motion.

22 ///

23 ///

24 1 Proposed Intervenors have also moved to strike Plaintiffs' 25 Opposition as untimely. Prop. Intervenors' Reply and Mot. to
Strike at 1. Plaintiffs' deadline to file their Opposition was 26 Friday, July 2, 2010, and Plaintiffs filed it the following day.
See Opp'n to Prop. Intervenors' Mot. Plaintiffs have apologized 27 for this late filing and have made assurances that no other
deadlines will be missed. ECF No. 38. Although the Court does not 28 condone untimely filings and will not tolerate future missed
deadlines by the Plaintiffs, the Court finds this error to be harmless and DENIES Proposed Intervenors' Motion to Strike.

4

United States District Court
For the Northern District of California

1

The Defendants in this action shall be:

2

o ARNOLD SCHWARZENNEGER, in his official capacity as

3

Governor of the State of California, and

4

o MARK YUDOF, in his official capacity as President of the

5

University of California.

6

The Defendant-Intervenors in this action shall be:

7

o WARD CONNERLY, and

8

o AMERICAN CIVIL RIGHTS FOUNDATION.

9

The Court finds that the most pressing issue in this action is

10 whether Plaintiffs' Complaint should be dismissed under Rule

11 12(b)(6), given the Ninth Circuit's opinion in Coalition for

12 Economic Equity, 122 F.3d 692. Accordingly, the Court ORDERS

13 Defendant-Intervenors to notice and file a motion to dismiss

14 addressing this issue. This motion shall be heard by the Court on

15 November 15, 2010, at 10 a.m., in Courtroom 1, 450 Golden Gate

16 Avenue, San Francisco. The Status Conference scheduled for

17 Thursday, September 16, 2010, is VACATED.

18

19

IT IS SO ORDERED.

20

21

Dated: August 25, 2010

22

UNITED STATES DISTRICT JUDGE

23

24

25

26

27

28

5

 
 1

2

3

4

IN THE UNITED STATES DISTRICT COURT

5

FOR THE NORTHERN DISTRICT OF CALIFORNIA

6

United States District Court
For the Northern District of California

7 COALITITION TO DEFEND AFFIRMATIVE ) Case No. 10-641 SC

ACTION, INTEGRATION AND IMMIGRANT ) 8 RIGHTS AND FIGHT FOR EQUITY BY ANY ) ORDER GRANTING

9 MEANS NECESSARY, et al.,

) MOTION TO DISMISS )

10

Plaintiffs,

)

)

11

v.

)

12

ARNOLD SCHWARZENNEGER, in his

) )

13 official capacity as Governor of ) the State of California, and MARK )

14 YUDOF, in his official capacity as )

President of the University of

)

15 California,

)

16

)

Defendants,

)

17 _________________________________ )

)

18 WARD CONNERLY, and AMERICAN CIVIL )

RIGHTS FOUNDATION, 19

)

)

20

Defendant-Intervenors. )

21 I. INTRODUCTION

22

This action was initiated by Plaintiffs Coalition to Defend

23 Affirmative Action ("CDAA"), Integration and Immigrant Rights and

24 Fight for Equality by Any Means Necessary ("BAMN"), and fifty-six

25 individually named California high-school and college students

26 (collectively, "Plaintiffs"). ECF No. 1 ("Compl."). Plaintiffs

27 challenge the constitutionality of Section 31 of Article I of

28 California's constitution ("Section 31"), which bans race-based

United States District Court
For the Northern District of California

1 discrimination and preferential treatment by the state. Id.

2 Specifically, Plaintiffs argue that Section 31, as applied by the

3 University of California in formulating its student admission

4 policies, violates the Fourteenth Amendment's Equal Protection

5 Clause. Id. Now before the Court is a Motion by Defendant-

6 Intervenors Ward Connerly ("Connerly") and the American Civil

7 Rights Foundation ("ACRF") (collectively, "Intervenors") to dismiss

8 this action with prejudice. ECF No. 49 ("Mot."). Plaintiffs

9 filed an Opposition, ECF No. 50 ("Opp'n"), and Intervenors filed a

10 Reply, ECF No. 51 ("Reply"). For the following reasons, the Court

11 GRANTS Intervenors' Motion.

12

13 II. BACKGROUND

14

The following facts are taken primarily from Plaintiffs'

15 Complaint; for the purposes of this Motion under Rule 12(b)(6) of

16 the Federal Rules of Civil Procedure, the Court assumes them to be

17 true. The University of California ("UC") is a public university

18 system chartered in 1868 by the state of California. Compl. ¶ 110.

19 The UC's fundamental governing structure is provided by

20 California's constitution, which establishes the UC Regents as its

21 governing body. Cal. Const. art. IX, § 9(a). California's

22 constitution provides the UC Regents with "full powers of

23 organization and government, subject only to such legislative

24 control as may be necessary to ensure the security of its funds and

25 compliance with the terms of the endowments of the university . . .

26 ." Cal. Const. art. IX, § 9(a). The UC Regents' power extends to

27 determining student admission policies for the UC's ten university

28 campuses. Compl. ¶ 112.

2

United States District Court
For the Northern District of California

1

In the 1970s, the UC Regents implemented student admission

2 policies to increase the number of enrolled underrepresented

3 minority students. Id. ¶ 125. These policies considered the race

4 of the student as an admission factor. Id. While these policies

5 boosted the number of enrolled minority students, they were

6 unpopular with many California citizens, and in 1995, newly

7 appointed UC Regent Connerly launched a campaign against so-called 8 "affirmative-action" admission policies in California.1 Id. ¶ 131.

9 That year, the UC Regents adopted a policy that "banned any

10 constituent part of the University from considering race in

11 admitting students for any purpose, including attempts to ensure

12 that the entering classes were racially diverse and integrated."

13 Id. ¶ 136.

14

Connerly then led a drive to amend California's constitution

15 through voter initiative to prohibit the state from engaging in

16 affirmative-action programs. Id. ¶ 138. In November 1996,

17 Proposition 209 -- the Connerly-supported voter initiative -- was

18 approved by California's voters and written into the California 19 constitution as Section 31 of Article I.2 Id. ¶ 140.

20

Section 31 now provides:

21

(a) The state shall not discriminate against,

or grant preferential treatment to, any

22

individual or group on the basis of race, sex,

color, ethnicity, or national origin in the

23

operation of public employment, public

education, or public contracting.

24

25 1 The Court adopts the definition of "affirmative action" used by the Ninth Circuit in an earlier challenge to Section 31: "state
26 programs that use race or gender classifications." Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 700 n.7 (9th Cir. 1997).
27 2 While this Court refers to the proposition and subsequent 28 constitutional amendment exclusively as "Section 31," papers
submitted by the parties and previous court rulings use "Section 31" and "Proposition 209" interchangeably.

3

United States District Court
For the Northern District of California

1

. . . .

2

(f) For the purposes of this section, "state"

3

shall include, but not necessarily be limited

to, the state itself, any city, county, city

4

and county, public university system, including

the University of California, community college

5

district, school district, special district, or

any other political subdivision or governmental

6

instrumentality of or within the state.

7 Cal. Const. art. I, § 31.

8

The UC Regents have not considered race as a factor in student

9 admissions decisions since 1995. Compl. ¶¶ 141-44. Consequently,

10 while black, Latino, and Native American students comprise more

11 than thirty percent of the newly admitted students at UC's

12 Riverside and Merced campuses, the number of minority students

13 enrolled at the most selective campuses in Berkeley ("UC Berkeley")

14 and Los Angeles ("UCLA") has decreased significantly. Id. ¶ 142.

15

Section 31 was immediately challenged in federal court. Coal.

16 for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997)

17 ("Wilson"). The district court found that Section 31 violated the

18 Equal Protection Clause of the Fourteenth Amendment of the U.S.

19 Constitution, and ordered a preliminary injunction barring the

20 state from enforcing it; a Ninth Circuit panel reversed. Id. The

21 panel held that the Wilson plaintiffs had "no likelihood of success

22 on the merits" of their claims, holding that Section 31 was

23 constitutional under the Equal Protection Clause's "conventional"

24 and "political structure" analyses, and holding that Section 31 was

25 not preempted by Title VII of the Civil Rights Act of 1964. Id. at

26 701-11. The Ninth Circuit denied a petition for an en banc

27 hearing. Id. Section 31 has also withstood several equal

28 protection challenges to its application in government contracting.

4

United States District Court
For the Northern District of California

1 E.g., Hi-Voltage Wire Works, Inc. v. City of San Jose, 12 P.3d 1068

2 (Cal. 2000), Coral Const., Inc. v. City and County of San

3 Francisco, 235 P.3d 947 (Cal. 2010).

4

Now, Plaintiffs bring the current action, claiming that

5 Section 31, as applied by the UC Regents in formulating student

6 admission policies, violates the Equal Protection Clause. Compl.

7 ¶¶ 195-215. Plaintiffs argue that the current factors the UC

8 considers in its student admission policies -- standardized test

9 scores and a weighted grade point average that favors students who

10 have taken honors or advanced placement classes -- reflect "the

11 separate and distinctly unequal elementary and secondary education"

12 provided to California's minority students. Id. ¶¶ 20-22.

13 Plaintiffs argue that because the UC cannot directly consider race

14 as an admission factor, it cannot effectively counteract the

15 allegedly prejudicial effects of these other factors. Id. ¶ 201.

16 Plaintiffs seek both a preliminary and permanent injunction

17 restraining the enforcement of Section 31 "as it applies to the

18 admission, education and graduation of students at the University

19 of California." Id. ¶ 204.

20

After the Court granted Intervenors' motion to intervene as

21 Defendants, see ECF No. 42, Intervenors filed the present Motion.

22 Intervenors argue that the Ninth Circuit's opinion in Wilson

23 precludes Plaintiffs' constitutional challenge to Section 31. Mot.

24 at 1-7. In response, Plaintiffs argue that Wilson was wrongly

25 decided, that Wilson's logic is inconsistent with later Supreme

26 Court opinions, and that Wilson is not controlling because it was a

27 facial, rather than as-applied, constitutional challenge to Section

28 31. See Opp'n.

5

United States District Court
For the Northern District of California

1 III. LEGAL STANDARD

2

A motion to dismiss under Federal Rule of Civil Procedure

3 12(b)(6) "tests the legal sufficiency of a claim." Navarro v.

4 Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal can be based

5 on the lack of a cognizable legal theory or the absence of

6 sufficient facts alleged under a cognizable legal theory.

7 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

8 1990). Allegations of material fact are taken as true and

9 construed in the light most favorable to the nonmoving party.

10 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir.

11 1996). "[T]he tenet that a court must accept as true all of the

12 allegations contained in a complaint is inapplicable to legal

13 conclusions. Threadbare recitals of the elements of a cause of

14 action, supported by mere conclusory statements, do not suffice."

15 Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl.

16 Corp. v. Twombly, 550 U.S. 544, 555 (2007). A motion to dismiss

17 should be granted if the plaintiff fails to proffer "enough facts

18 to . . . nudge[] their claims across the line from conceivable to

19 plausible." Twombly, 550 U.S. at 570. While the court should

20 generally give plaintiff leave to amend a deficient complaint, it

21 may dismiss an action with prejudice if the complaint is predicated

22 on a misrepresentation of law such that amendment would be futile.

23 Eminence Capital LCC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir.

24 2003).

25

26 IV. DISCUSSION

27

Plaintiffs' Complaint asserts two causes of action: "Count

28 One" is "Racial Discrimination in the Structure of Government," and

6

United States District Court
For the Northern District of California

1 "Count Two" is "Racial Discrimination in Violation of the Equal

2 Protection Clause of the Fourteenth Amendment." See Compl.

3 Plaintiffs clarify in their Opposition that these two causes of

4 action are both equal protection challenges to Section 31. See

5 Opp'n at 11-20. The second is a challenge under the "conventional"

6 equal protection analysis, which applies to government-sponsored

7 racial preferences; the first is a challenge under the "political

8 structure" equal protection analysis, which recognizes "a right to

9 fairness in the political process, as opposed to entitlement to a

10 particular outcome." Coal. to Defend Affirmative Action,

11 Integration and Immigration Rights v. Regents of the Univ. of

12 Michigan, 592 F. Supp. 2d 948, 950 (E.D. Mich. 2008) (emphasis in

13 original).

14

A. Plaintiffs' Conventional Equal Protection Challenge

15

The Equal Protection Clause of the Fourteenth provides: "No

16 State shall . . . deny to any person within its jurisdiction the

17 equal protection of the laws." U.S. Const. amend. XIV, § 1. Under

18 the conventional equal protection analysis, a reviewing court must

19 analyze all racial classifications imposed by state action under

20 "strict scrutiny." Grutter v. Bollinger, 539 U.S. 306, 326 (2003).

21 The first step is identifying the racial classification that the

22 state draws; the second is identifying whether this classification

23 is justified by a compelling state interest; the third is to

24 determine if the classification is narrowly tailored to further

25 that interest. Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 285

26 (1986)

27

The Ninth Circuit panel applied this standard in Wilson. 122

28 F.3d at 702. The panel held that the challenge to Section 31

7

United States District Court
For the Northern District of California

1 failed the first step, holding that Section 31 does not make racial

2 classifications, but rather prohibits them. Id. The court wrote:

3 "A law that prohibits the State from classifying individuals by

4 race or gender a fortiori does not classify individuals by race or

5 gender." Id.

6

Intervenors argue that this Court's analysis should stop here:

7 because Wilson has ruled that Section 31 does not make a

8 classification on the basis of race, and because this Court is

9 bound by the precedent set by the Ninth Circuit, any conventional

10 equal protection challenge to Section 31 must fail. Mot. at 1-2.

11

Plaintiffs argue that because Wilson was a facial challenge to

12 Section 31, it should not preclude Plaintiffs' as-applied

13 challenge. Opp'n at 14. Plaintiffs argue that Wilson was premised

14 on the idea that affirmative action constituted "preferential

15 treatment," and argue that "affirmative action in higher education

16 authorizes not 'preferences,' but measures to overcome preferences

17 that favor white and Asian American students." Id. at 4.

18 Plaintiffs argue, essentially, that the other factors the UC

19 considers -- such as standardized testing scores and grade-point

20 averages -- discriminate against black, Latino, and Native American

21 students, and thus affirmative action is necessary to counteract

22 their discriminating effects. See Opp'n at 5-9, 20-22.

23

Plaintiffs essentially argue that Wilson involved a broad

24 facial challenge to Section 31, and the specific scenario

25 Plaintiffs allege above -- a need to use race as an admission

26 factor to counteract other forms of discrimination -- was not

27 before the court. The record, however, proves otherwise. As the

28 lower court in Wilson clearly stated:

8

United States District Court
For the Northern District of California

1

It is thus essential to keep in mind that

plaintiffs' constitutional challenge to

2

Proposition 209 is not, in fact, a facial

challenge to the entire initiative. Rather, it

3

is much narrower in scope: it is a challenge

only to that slice of the initiative that now

4

prohibits governmental entities at every level

from taking voluntary action to remediate past

5

and present discrimination through the use of

constitutionally permissible race- and gender-

6

conscious affirmative action programs.

7 946 F. Supp. 1480, 1488 (N.D. Cal. 1996) (emphasis added).

8

As such, the Ninth Circuit considered the very scenario

9 Plaintiffs now allege. The court found that in barring the use of

10 constitutionally permissible racial preferences to remediate past

11 and present discrimination, Section 31 did not violate the Equal

12 Protection Clause. Id. As such, Wilson's facial challenge to

13 Section 31 covers the specific application of Section 31 Plaintiffs

14 allege is unconstitutional.

15

Additionally, Plaintiffs devote a great deal of space in their

16 Opposition to criticizing the logic of Wilson. They make these

17 arguments to the wrong court, as this Court is bound by stare

18 decisis. "A district judge may not respectfully (or

19 disrespectfully) disagree with his learned colleagues on his own

20 court of appeals who have ruled on a controlling legal issue, or

21 with Supreme Court Justices writing for a majority of the Court."

22 Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001).

23

Because the Ninth Circuit has already determined that a

24 conventional equal protection challenge to Section 31, as it

25 applies to all state-sponsored affirmative action programs, must

26 fail, the Court finds that Plaintiffs' traditional equal protection

27 challenge fails. Furthermore, the Court finds Plaintiffs'

28 challenge to Section 31 is so clearly precluded by Wilson as to

9

United States District Court
For the Northern District of California

1 render amendment of the claim to be futile. Eminence Capital, 316

2 F.3d at 1052. For these reasons, the Court DISMISSES WITH

3 PREJUDICE Count Two of Plaintiffs' Complaint.

4

B. Political Structure Equal Protection Analysis

5

The political structure doctrine of equal protection was

6 developed by the Supreme Court in Hunter v. Erickson, 393 U.S. 385

7 (1969), and Washington v. Seattle School District No. 1, 458 U.S.

8 457 (1982) ("Seattle"). Under this analysis, the Equal Protection

9 Clause reaches "a political structure that treats all individuals

10 as equals . . . yet more subtly distorts governmental processes in

11 such a way as to place special burdens on the ability of minority

12 groups to achieve beneficial legislation." Seattle, 458 U.S. at

13 467.

14

The Ninth Circuit found in Wilson that Section 31 did not

15 violate the Equal Protection Clause under this political structure

16 analysis. 122 F.3d. at 705-07. The Court found that this doctrine

17 was not applicable to Section 31 because it was not a state action

18 that discriminated on the basis of race. Id. The court also noted

19 that the burden placed by Section 31 was not "an impediment to

20 protection against unequal treatment" but "an impediment to

21 preferential treatment," holding: "Impediments to preferential

22 treatment do not deny equal protection." Id. at 708. Intervenors

23 argue that, in light of Wilson, Plaintiffs' political structure

24 argument should fail as a matter of law.

25

Plaintiffs' main argument in response is that Wilson's logic

26 is inconsistent with Grutter v. Bollinger, 539 U.S. 306 (2003).

27 Opp'n at 16. Grutter does not discuss the political structure

28 doctrine. Rather, it involved a conventional equal protection

10

United States District Court
For the Northern District of California

1 challenge to the University of Michigan's School of Law's practice

2 of considering race as one factor in student admission. Id. at

3 311-16. The Supreme Court upheld the practice, finding that the

4 state had a compelling interest in attaining a diverse student body

5 and that the school's admissions policies were narrowly tailored to

6 serve this interest. Id. at 342-44.

7

The Court is not convinced that Grutter overrules Wilson.

8 Grutter does not hold that the Constitution requires the use of

9 race in student admission decision; rather, it holds that the

10 Constitution tolerates the use of race as one of many admission

11 factors. Id. As such, Grutter says nothing to refute Supreme

12 Court precedent, cited in Wilson, that "the Equal Protection Clause

13 is not violated by the mere repeal of race-related legislation or

14 policies that were not required by the Federal Constitution in the

15 first place." Crawford v. Bd. of Educ. of the City of Los Angeles,

16 458 U.S. 527, 538 (1982). Because use of race as a factor in

17 student admission decisions is permitted but not required by the

18 Equal Protection Clause, Wilson is not inconsistent with Grutter.

19

Furthermore, as Intervenors point out, Grutter even indirectly

20 refers to Section 31. 539 U.S. at 342. Grutter held that racial

21 preferences, while not presumptively unconstitutional, must be

22 limited in time. Id. In so holding, the Supreme Court cited the

23 "race-neutral alternatives" to racial preferences used by

24 "Universities in California, Florida, and Washington State, where

25 racial preferences are prohibited by state law." Id. The Court

26 suggested that California and other states were "laboratories"

27 experimenting with alternatives to racial preferences, writing:

28 "Universities in other States can and should draw on the most

11

United States District Court
For the Northern District of California

1 promising aspects of these race-neutral alternatives as they

2 develop." Id. This discussion refutes Plaintiffs' contention that

3 the Supreme Court intended Grutter to overrule Wilson.

4

Plaintiffs make other arguments that Wilson has been

5 superseded. Plaintiffs state that "the substantive standards of

6 Proposition 209 are, as applied in the area of higher education, in

7 violation of the Fourteenth Amendment because their sole aim and

8 effect is to exclude minority students," and argue that Wilson

9 ignored this "for reasons that have been superseded by later

10 decisions by the state and federal courts." Opp'n at 4-5.

11 Plaintiffs do not clarify which later decisions supersede Wilson

12 with respect to this issue. However, it has been the law since

13 Crawford that "a law neutral on its face still may be

14 unconstitutional if motivated by a discriminatory purpose." 458

15 U.S. at 544. Crawford predates Wilson by fifteen years, and was

16 discussed at length by the court in Wilson. 122 F.3d at 705-09.

17 Thus if Wilson failed to analyze the motivation behind the adoption

18 of Section 31, this inconsistency would have been apparent in 1997,

19 and was not created by later Supreme Court case law.

20

Finally, Plaintiffs attempt to identify other inconsistencies

21 between Wilson and subsequent Supreme Court cases. Plaintiffs take

22 issue with the following statement in Wilson: "The alleged 'equal

23 protection' burden that Proposition 209 imposes on those who would

24 seek race and gender preferences is a burden that the Constitution

25 itself imposes." Id. at 708. Plaintiffs write: "The Wilson

26 panel's claim that a law banning all 'preferences' was simply a

27 restatement of the Fourteenth Amendment was never true." Opp'n at

28 22. Plaintiffs claim: "Grutter and subsequent decisions have made

12

United States District Court
For the Northern District of California

1 clear that the theory that the Constitution bars all consideration

2 of race is 'inconsistent in both its approach and its implications

3 with the history, meaning and reach of the Equal Protection

4 Clause.'" Id. (citing Parents Involved in Cmty. Schs. v. Seattle

5 Sch. Dist. No. 1, 551 U.S. 701 (2007).

6

Plaintiffs do not explain, however, how these alleged

7 inconsistencies destroy the fundamental logic of Wilson.

8 Plaintiffs cite to no political structure cases decided after

9 Wilson. Rather, they try to wrench inconsistencies out of Wilson's

10 dicta. Such inconsistencies do not so poison Wilson's logic as to

11 free this Court from its duty to apply the precedent set by its

12 reviewing court.

13

For these reasons, the Court finds that Plaintiffs' political

14 structure equal protection challenge to Section 31 fails as a

15 matter of law. Because amendment would be futile, the Court

16 DISMISSES WITH PREJUDICE Count One of Plaintiffs' Complaint.

17

18 V. CONCLUSION

19

For the foregoing reasons, the Court GRANTS the Motion to

20 Dismiss by Defendant-Intervenors Ward Connerly and the American

21 Civil Rights Foundation. This Complaint filed by Plaintiffs

22 Coalition to Defend Affirmative Action, et al. is DISMISSED WITH

23 PREJUDICE.

24

25

IT IS SO ORDERED.

26

27

Dated: December 8, 2010

28

UNITED STATES DISTRICT JUDGE

13

 
 Case:C1a1s-e135:11000-cv-0056/1411/-2S0C12 DoIcDu:m8e1n7t566592FileDdk0t5E/1n6tr/y1:212P5ageP1aogfe3: 1 of 3
FILED

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MAY 11 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

COALITION TO DEFEND AFFIRMATIVE ACTION; et al.,
Plaintiffs - Appellants,
v.
EDMUND G. BROWN, Jr., in his official capacity as Governor of the State of California; et al.,
Defendants - Appellees,
and
WARD CONNERLY; et al.,
Defendant - Intervenors Appellees.

No. 11-15100 D.C. No. 3:10-cv-00641-SC Northern District of California, San Francisco
ORDER

COALITION TO DEFEND AFFIRMATIVE ACTION; et al.,
Plaintiffs - Appellees,
v.
EDMUND G. BROWN, Jr., in his official capacity as Governor of the State of California,
Defendant,

No. 11-15241
D.C. No. 3:10-cv-00641-SC Northern District of California, San Francisco

Case:C1a1s-e135:11000-cv-0056/1411/-2S0C12 DoIcDu:m8e1n7t566592FileDdk0t5E/1n6tr/y1:212P5ageP2aogfe3: 2 of 3
MARK YUDOF, in his official capacity as President of the University of California,
Defendant - Appellant, and WARD CONNERLY; et al.,
Defendant - Intervenors.
Before: TASHIMA and SILVERMAN, Circuit Judges, and GARBIS, Senior District Judge.*
The panel has voted to deny Mark Yudof’s petition for rehearing. Judge Tashima would grant the petition for rehearing. Judge Silverman has voted to deny Yudof’s petition for rehearing en banc. Judges Tashima and Garbis have recommended that the petition for rehearing en banc be granted.
The panel has voted to deny Plaintiffs’ petition for rehearing. Judge Silverman has voted to deny Plaintiffs’ petition for rehearing en banc, and Judge Garbis so recommended. Judge Tashima recommended that the petition for rehearing en banc be granted.
The full court has been advised of both Yudof’s and Plaintiffs’ petitions for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
* The Honorable Marvin J. Garbis, Senior District Judge for the District of Maryland, sitting by designation.

Case:C1a1s-e135:11000-cv-0056/1411/-2S0C12 DoIcDu:m8e1n7t566592FileDdk0t5E/1n6tr/y1:212P5ageP3aogfe3: 3 of 3
Yudof’s and Plaintiffs’ petitions for rehearing and petitions for rehearing en banc are DENIED.

 
 FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 COALITION TO DEFEND AFFIRMATIVE

ACTION; INTEGRATION AND

IMMIGRANT RIGHTS AND FIGHT FOR

EQUALITY BY ANY MEANS

NECESSARY, (BAMN); D EFEND

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; O MAR SERAG ELDIN, by his next friend



Gamil Serag Eldin; J OSE FLORES;

MICHELLE FLORES, by her next

friend Victoria Barranco; J ENESIS

FONSECA, by her next friend

Angelica Ledezma; G ABRIELA

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

3554

COALITION TO DEFEND v. B ROWN

JESSICA JIMENEZ; SARAH KIM;



DOMINIQUE LOFGREN; ANTONIO

LOVE; NAYELI A. M ARAVILLAS, by

her next friend Martin Maravillas;

GABRIELA MARTINEZ, by her next

friend Dora Martinez; J AVIER

MEZA; GLADYS MORALES, by her

next friend Rocio Morales; J ALIMA

MORALES; AISLYN T. N AMANGA;

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; A ARON SAMPSON;

ANDREW SANCHEZ; DOMINIQUE

SHORT-THOMAS; ALEJANDRA SOLIS,

by her next friend Rosa

Desormaux; DESIREE TIENTURIER;

JASMINE TOVAR, by her next friend

Luz Tovar; B RENDA TRUJILLO; JOSE

ROBERTO VALENZUELA; RUBY

VILLARRUEL, by her next friend

Olivia Villarruel; J ERRICA WEBB;

TANISHA WEST; AMBER WILLIAMS,

by her next friend Carlette King-

Williams; RICARDO ZAZUETA,

 Plaintiffs-Appellants,

COALITION TO DEFEND v. B ROWN

3555

v.



EDMUND G. B ROWN, Jr., in his

official capacity as Governor of

the State of California; M ARK

YUDOF, in his official capacity as

President of the University of

California,



Defendants-Appellees,

and

WARD CONNERLY; AMERICAN CIVIL RIGHTS FOUNDATION,
Defendants-Intervenors -
 Appellees.

No. 11-15100
D.C. No. 3:10-cv-00641-SC

 COALITION TO DEFEND AFFIRMATIVE

ACTION; INTEGRATION AND

IMMIGRANT RIGHTS AND FIGHT FOR

EQUALITY BY ANY MEANS

NECESSARY, (BAMN); D EFEND

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; O MAR

SERAG ELDIN, by his next friend

Gamil Serag Eldin;



3556

COALITION TO DEFEND v. B ROWN

 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; P ATRICIA 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. M ARAVILLAS, by



her next friend Martin Maravillas;

GABRIELA MARTINEZ, by her next

friend Dora Martinez; J AVIER

MEZA; GLADYS MORALES, by her

next friend Rocio Morales; J ALIMA

MORALES; AISLYN T. N AMANGA;

HAN KYUL NOH, by his next friend

Lucia Noh; N ICHOLAS 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; A ARON SAMPSON;

COALITION TO DEFEND v. B ROWN

3557

ANDREW SANCHEZ; DOMINIQUE



SHORT-THOMAS; ALEJANDRA SOLIS,

by her next friend Rosa

Desormaux; DESIREE TIENTURIER;

JASMINE TOVAR, by her next friend

Luz Tovar; B RENDA TRUJILLO; JOSE

ROBERTO VALENZUELA; RUBY

VILLARRUEL, by her next friend

Olivia Villarruel; J ERRICA WEBB;

TANISHA WEST; AMBER WILLIAMS,

by her next friend Carlette King-

Williams; RICARDO ZAZUETA,

Plaintiffs-Appellees,

v.



EDMUND G. B ROWN, 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.

No. 11-15241
D.C. No. 3:10-cv-00641-SC
OPINION

Appeal from the United States District Court for the Northern District of California
Samuel Conti, Senior District Judge, Presiding
Argued and Submitted February 13, 2012—San Francisco, California

3558

COALITION TO DEFEND v. B ROWN Filed April 2, 2012

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

*The Honorable Marvin J. Garbis, Senior District Judge for the U.S. District Court for the District of Maryland, sitting by designation.

3560

COALITION TO DEFEND v. B ROWN

COUNSEL
George B. Washington (argued), Shanta Driver (argued), Detroit, Michigan, and Ronald Cruz, Oakland, California, Scheff, Washington & Driver, P.C., for the plaintiffsappellants.
Antonette B. Cordero (argued), Office of the California Attorney General, Los Angeles, California, and Andrew W. Stroud and Margaret C. Toledo, Mennemeier, Glassman & Stroud LLP, Sacramento, California, for defendant-appellee Governor Edmund G. Brown, Jr.
Bradley S. Phillips (argued), Michelle T. Friedland, and Soraya C. Kelly, Munger, Tolles & Olson LLP, Los Angeles, California, for defendant-cross-appellant Mark Yudof.
Ralph W. Kasarda (argued) and Daniel A. Himebaugh, Pacific Legal Foundation, Sacramento, California, for intervenors-defendants Ward Connerly and American Civil Rights Foundation.
Anthony T. Caso, Law Office of Anthony T. Caso, Orange, California, for amici curiae Center for Constitutional Jurisprudence and California Association of Scholars.
James S. Detamore, Mountain States Legal Foundation, Lakewood, Colorado, for amici curiae Mountain States Legal Foundation and Center for Equal Opportunity.

COALITION TO DEFEND v. B ROWN

3561

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, Arizona, for amicus curiae State of Arizona.

Kenneth C. Yeager, Drociak, Yeager & Associates, Los Angeles, California, for amici curiae Los Angeles NAACP and California Branches.

Wilson R. Huhn, Pepper Pike, Ohio, for amicus curiae Committee of Law Professors and Historians.

Winifred V. Kao, Asian Law Caucus, San Francisco, California, for amicus curiae California Social Science Researchers and Admissions Experts.

OPINION
SILVERMAN, 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

3562

COALITION TO DEFEND v. B ROWN

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 political subdivision or governmental instrumentality of or within the state.

Cal. Const. art. I, § 31.

COALITION TO DEFEND v. B ROWN

3563

Several individuals and groups immediately brought suit under 42 U.S.C. § 1983 against state officials and political subdivisions of the state, alleging, inter alia, that section 31 violated the Equal Protection Clause. See Coal. for Econ. Equity v. Wilson (Wilson I) , 946 F. Supp. 1480, 1488-90 (N.D. Cal. 1996). The district court in Wilson I granted the requested relief by the plaintiffs, holding that section 31 was likely unconstitutional and granting a preliminary injunction enjoining its enforcement. Id. at 1520.

On appeal, we vacated the preliminary injunction and remanded the matter because the plaintiffs had shown no likelihood of success on the merits of their claims. Wilson II, 122 F.3d at 710-11. In so doing, we rejected the plaintiffs’ equal protection claim under both a conventional equal protection analysis and a political-structure equal protection analysis. Id. at 701-09. Under a conventional analysis, the court “focuses on whether the government has classified individuals on the basis of impermissible criteria. ” Valeria v. Davis , 307 F.3d 1036, 1039 (9th Cir. 2002). We held in Wilson II that section 31 is constitutional under a conventional equal protection analysis because it “prohibits the State from classifying individuals by race or gender ” and, therefore, it “a fortiori does not classify individuals ” impermissibly. 122 F.3d at 702. Under a political-structure analysis, the question is whether a state action creates “a political structure that treats all individuals as equals . . . [but] place[s] special burdens on the ability of minority groups to achieve beneficial legislation. ” Washington v. Seattle Sch. Dist. No. 1 , 458 U.S. 457, 467 (1982) (citation and quotation marks omitted). Applying this analysis, we determined that section 31 was constitutional because the law “addresse[d] in neutral-fashion race-related and gender-related matters.” 122 F.3d at 707. Section 31 prohibited preferential treatment, we held, not “equal protection rights against political obstructions to equal treatment. ” Id. at 708.

After section 31 became law, the University ceased considering race or sex in student admissions. The year after section

3564

COALITION TO DEFEND v. B ROWN

31 passed, the number of African American, Latino, and Native American freshmen at UCLA and U.C. Berkeley dropped by over 50%. The U.C. Regents have attempted to mitigate the drop in underrepresented minorities by adopting a “comprehensive review” of applicants, utilizing different standardized tests, admitting the top 4% of graduates from any high school, and decreasing the weight of standardized tests. It is alleged that these measures have had only a minor impact on the number of underrepresented minority students.

Plaintiffs initiated the instant putative class action to once again challenge the constitutionality of section 31 under conventional and political-structure equal protection analyses. Defendants U.C. Regents, then-Governor Arnold Schwarzenegger, and Yudof moved to dismiss the complaint, asserting (along with other defenses) that they were immune from suit under the Eleventh Amendment and that they were not proper defendants. Former U.C. Regent Ward Connerly, the American Civil Rights Foundation, and the California Association of Scholars then moved to intervene as defendants and filed a motion to dismiss the complaint under Rule 12(b)(6).

The district court allowed Connerly and the American Civil Rights Foundation to intervene. The court dismissed the U.C. Regents on sovereign immunity grounds, which Plaintiffs have not appealed. The district court then denied the motions to dismiss by former Governor Schwarzenegger and Yudof. The court ruled that the governor and Yudof were not immune from suit and were proper defendants because they were sufficiently connected to the enforcement of section 31 through their respective roles as President of the U.C. Regents and President of the University. In a separate order, the district court dismissed with prejudice both of Plaintiffs’ claims, holding that it was bound by Wilson II to uphold the constitutionality of section 31.

Plaintiffs appeal the dismissal of their claims, and Yudof cross-appeals the district court’s decision to deny him state

COALITION TO DEFEND v. B ROWN

3565

immunity and to keep him in the suit. Governor Brown was then substituted as a defendant.

II. JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We “review de novo a district court’s order granting a motion to dismiss under Rule 12(b)(6), ” Cook v. Brewer , 637 F.3d 1002, 1004 (9th Cir. 2011). A denial of Eleventh Amendment immunity is also reviewed de novo. Eason v. Clark Cnty. Sch. Dist., 303 F.3d 1137, 1140 (9th Cir. 2002). We review a district court’s decision to dismiss with prejudice for abuse of discretion. Stearns v. Ticketmaster Corp. , 655 F.3d 1013, 1018 (9th Cir. 2011).

III. DISCUSSION

A.

Because our precedent dictates that we resolve an Eleventh Amendment immunity claim before reaching the merits, we first address Yudof’s cross-appeal. See In re Jackson , 184 F.3d 1046, 1048 (9th Cir. 1999). Yudof argues that the district court erred in denying him Eleventh Amendment immunity. We disagree.

[1] “The Eleventh Amendment erects a general bar against federal lawsuits brought against a state. ” Porter v. Jones, 319 F.3d 483, 491 (9th Cir. 2003). It does not, however, bar actions for prospective declaratory or injunctive relief against state officers in their official capacities for their alleged violations of federal law. See Ex parte Young , 209 U.S. 123, 155-56 (1908); Alden v. Maine , 527 U.S. 706, 747 (1999). The individual state official sued “must have some connection with the enforcement of the act. ” Ex parte Young , 209 U.S. at 157. In addition, that connection “must be fairly direct; a generalized duty to enforce state law or general supervisory power over the persons responsible for enforcing the chal-

3566

COALITION TO DEFEND v. B ROWN

lenged provision will not subject an official to suit. ” L.A. Cnty. Bar Ass’n v. Eu , 979 F.2d 697, 704 (9th Cir. 1992).

[2] Relying primarily on Snoeck v. Brussa , 153 F.3d 984 (9th Cir. 1998), Yudof contends that the district court improperly denied him Eleventh Amendment immunity. Snoeck held that members of a judicial discipline commission were immune from suit under the Eleventh Amendment because they had no enforcement power over the challenged rule. Id. at 987. The plaintiffs in Snoeck alleged that the commissioners violated their First Amendment rights by prohibiting them from disclosing the facts contained in their complaints against two Nevada judges. Id. at 985. Pursuant to the Nevada Constitution, the Nevada Supreme Court adopted judicial rules that required confidentiality, and that allowed it to hold in contempt those who breached confidentiality. Id. We held that the commissioners were immune from suit because the commission had no power of contempt and could not amend the judicial rules. Id. at 987.

Analogizing the instant case to Snoeck, Yudof argues that he lacks authority to amend, repeal, deviate from, or enforce section 31. He asserts that he can only comply with section 31, but cannot punish those who do not, just like the commissioners in Snoeck. Without a connection to the enforcement of section 31, he claims he cannot be sued.

The district court correctly denied Eleventh Amendment immunity pursuant to Eu, 979 F.2d at 704. In Eu, the plaintiff alleged that a statute limiting the number of superior court judges caused delays in civil litigation and deprived litigants of access to the courts. Id. at 699. The governor and secretary of state contended that they lacked a connection with the enforcement of the statute. Id. at 704. This court rejected that argument and held that the officials had a “fairly direct” and “specific connection” to enforcement of the law because they appointed judges to newly created positions and certified subsequent elections for those positions. Id. The statute was

COALITION TO DEFEND v. B ROWN

3567

“being given effect ” by the officials, and therefore the state officials were not immune from suit. Id.

[3] Applying Ex parte Young and Eu, we hold that Yudof

is not immune from Plaintiff ’s suit seeking prospective

declaratory and injunctive relief relating to the admission

criteria of the university of which he is president. Yudof has

a “fairly direct” connection, to say the least, to the enforce-

ment of section 31. See Eu, 979 F.2d at 704. As the head of

the University of California, he does more than just “live

with” section 31. He enforces it. He is duty-bound to ensure

that his employees follow it and refrain from using race as a

criterion in admission decisions. Yudof’s argument that he is

merely “implementing,” not “enforcing” section 31, mini-

mizes his role as President of the University and is inconsis-

tent with Eu. Lastly, Yudof’s reliance on

Snoeck is

unavailing. Unlike Snoeck, where the Nevada Supreme Court

was expressly charged with enforcement, 153 F.3d at 987,

section 31 does not designate any entity to commence

enforcement proceedings. At the University of California, the

buck stops with Yudof.

B.

Turning to the merits, Plaintiffs argue that section 31 is unconstitutional under a “conventional equal protection analysis” because it allows admission officials to depart from the University’s baseline admission criteria for any purpose— veteran status, income, geographical background, athleticism, or legacy—but not for “racial diversity” or to address “de facto racial segregation and inequality.” This, Plaintiffs argue, “driv[es] down minority admissions ” and treats African American, Latino, and Native American students unequally from their Asian American and white counterparts. Plaintiffs also allege that section 31 is unconstitutional because it created an “unequal political structure ” that prevents racial minorities from “using the normal democratic process to seek votes by the [U.C.] Regents to reverse . . . [the] ban on affir-

3568

COALITION TO DEFEND v. B ROWN

mative action in admissions. ” While other individuals and groups may petition the U.C. Regents to change the admission policy, African Americans, Latinos, and Native Americans must persuade the electorate to repeal or amend section 31.

[4] Our prior decision in Wilson II dealt with and rejected both of these arguments. In Wilson II, this court held that, “[a]s a matter of ‘conventional’ equal protection analysis, there is simply no doubt that Proposition 209 is constitutional.” 122 F.3d at 701. Wilson II further held that section 31, under a political-structure equal protection analysis, did not violate the Fourteenth Amendment. 122 F.3d at 704-09.

[5] We are bound by Wilson II. See Santamaria v. Horsley, 110 F.3d 1352, 1355 (9th Cir. 1997) ( “It is settled law that one three-judge panel of this court cannot ordinarily reconsider or overrule the decision of a prior panel. ”). Pursuant to Wilson II, we affirm the district court’s dismissal of Plaintiffs’ claims with prejudice. See Polich v. Burlington N., Inc. , 942 F.2d 1467, 1472 (9th Cir. 1991) (holding that dismissal with prejudice is proper when “it is clear, upon de novo review, that the complaint could not be saved by any amendment ”).

Plaintiffs argue that Wilson II is inapposite because it was a facial challenge of section 31, whereas Plaintiffs here bring an as-applied constitutional challenge. They assert that the Wilson II court did not contemplate section 31’s effects on higher education.

[6] As the district court noted, however, the Wilson II court considered the very scenario Plaintiffs now allege. In Wilson II, we “accept[ed] without question[ ] the district court’s findings that [section 31] burdens members of insular minorities . . . who otherwise would seek to obtain race-based and gender-based preferential treatment from local entities. ” 122 F.3d at 705. The district court in Wilson I made specific findings regarding the effects section 31 would have on higher education and expressly found that the number of African

COALITION TO DEFEND v. B ROWN

3569

American and Native American students across the University would fall by as much as 50%. 946 F. Supp. at 1497. This factual finding by the district court is in line with the facts alleged in the complaint. The Wilson II court clearly relied on the district court’s findings. See Wilson II , 122 F.3d at 698 (“It further would cause enrollment of African-American, Latino, and American Indian students in public colleges to fall . . . . ”). Thus, Plaintiffs’ contention that Wilson II did not address and therefore does not foreclose their as-applied equal protection challenge fails.

To try to get out from under Wilson II’s binding precedent, Plaintiffs also argue that Wilson II is irreconcilable with Grutter v. Bollinger , 539 U.S. 306, 325 (2003), which held that student body diversity is a compelling state interest and that the Constitution permits narrowly tailored race-based admission policies. Wilson II and Grutter, however, are easily reconciled.

Grutter upheld as permissible certain race-based affirmative action programs. Id. It did not hold that such programs are constitutionally required. See Coal. to Defend Affirmative Action v. Granholm , 473 F.3d 237, 249 (6th Cir. 2006) (“Grutter never said, or even hinted, that state universities must do what they narrowly may do.”).1 Furthermore, as the district court pointed out,

[In Grutter,] the Supreme Court cited the “raceneutral alternatives” to racial preferences used by “Universities in California, Florida, and Washington State, where racial preferences are prohibited by

1The 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. 11345, 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. ”

3570

COALITION TO DEFEND v. B ROWN

state law.” [539 U.S. at 342.] The Court suggested that California and other states were “laboratories” experimenting with alternatives to racial preferences, writing: “Universities in other States can and should draw on the most promising aspects of these raceneutral alternatives as they develop.” Id. This discussion refutes Plaintiffs’ contention that the Supreme Court intended Grutter to overrule Wilson [II].

Because Grutter spoke only to whether race-based affirmative action programs are permitted, and not to whether they can be prohibited as was the case in Wilson II, it is impossible to hold that Grutter overrules Wilson II.

The bottom line is that Wilson II remains the law of the circuit, and the district court faithfully applied it.

The district court’s order dismissing the complaint is AFFIRMED.

TASHIMA, Circuit Judge, specially concurring in part and dissenting in part:
Judge Silverman is, of course, entirely correct that Plaintiffs’ challenge to Proposition 209 is foreclosed by Coalition for Economic Equity v. Wilson , 122 F.3d 692 (9th Cir. 1997) (“Wilson II”). I continue to believe now, as I did when the case was decided, that Wilson II was wrongly decided. See Wilson II, 122 F.3d at 711-12 (Schroeder, J., dissenting from the denial of rehearing en banc); id. at 712-18 (Norris, J., respecting the denial of rehearing en banc). Because, however, Wilson II remains the law of the circuit and, as Judge Silverman states, “[w]e are bound by Wilson II,” I concur in Part III.B. of the majority opinion.
Part III.A is a different matter. I disagree with the majority’s conclusion that the district court correctly denied Elev-

COALITION TO DEFEND v. B ROWN

3571

enth Amendment immunity to defendant Mark Yudof, as President of the University of California. Maj. Op. at 3567. I therefore dissent from Part III.A.

The majority relies on L.A. Cnty. Bar Ass’n v. Eu, 979 F.2d 697 (9th Cir. 1992), to hold that because Yudof has a “fairly direct connection” with enforcement of § 31,1 he therefore is not immune from suit pursuant to Ex parte Young. Id. at 704 (citing Ex parte Young, 209 U.S. 123, 157 (1908)). But with regard to Yudof’s claim of Eleventh Amendment immunity, this case is more like Snoeck v. Brussa, 153 F.3d 984 (9th Cir. 1998), than Eu. In Eu, we addressed a statute that was “simply not the type that gives rise to enforcement proceedings. ” Id. In contrast, and contrary to the majority’s assertion, the law does provide for § 31 enforcement proceedings. Cf. Snoeck, 153 F.3d at 987. Although § 31 itself does not designate a specific state entity to commence proceedings, other provisions of the California Constitution expressly charge the Governor and the Attorney General with the duty and authority to enforce the law. 2 Cal. Const. art. V, §§ 1, 13. Those State executive officers, not Yudof, are the state officials responsible for enforcement of § 31. See Coal. for Econ. Equity v. Wilson, 946 F. Supp. 1480, 1492 (N.D. Cal. 1996).

In Snoeck, we held that the Eleventh Amendment barred suit against members of the Nevada Commission on Judicial Discipline who lacked authority to enforce the challenged rules through the exercise of contempt power or disciplinary authority. 153 F.3d at 987. We held that it was “only collateral, and of no consequence ” that Commission members applied the rules and engaged in “ministerial, administrative

1Proposition 209, upon its approval by the California electorate, became Cal. Const. art I, § 31 (hereinafter “§ 31”).
2In 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. ”).

3572

COALITION TO DEFEND v. B ROWN

practices designed to remind citizens of their duties under the rules.” Id. Like the Commission members in Snoeck, Yudof lacks the authority to execute enforcement proceedings; his statutory duty is not to punish violations of the law, but to “accept and apply [the law] . . . however much [he] might disagree with [it].” Id. Although Yudof must implement § 31 like any other state law applicable to the University in the course of carrying out his duties as President, Snoeck holds that such “general administrative responsibilities ” do not establish the direct connection with enforcement of the statute required by Ex parte Young. Id.

Because Snoeck is binding, I would hold that the district court erred in denying Yudof immunity. Unable to distinguish Snoeck, in the end the majority simply relies on the conclusory statement that “[a]t the University, the buck stops with Yudof.” Maj. Op. at 3567. But that assertion is mistaken as a matter of California law, under which The Regents of the University of California administer the University and are granted the “full powers of organization and government ” to do so. See Cal. Const. art. IX, § 9. See also, e.g., Campbell v. Regents of the Univ. of Calif. , 106 P.3d 976 (Cal. 2005) (noting that the Regents “as a constitutionally created arm of the state have virtual autonomy in self-governance” (internal quotation marks and citation omitted). Recognizing this, the district court granted the Regents’ motion to dismiss on Eleventh Amendment immunity grounds, which dismissal has not been appealed. It is a mystery to me then, why the Regents — where the buck does stop — are entitled to Eleventh Amendment immunity, but its subordinate officer, the President of the University, is not.

As should be evident, I have never agreed with Snoeck’s holding or the rationale on which it is based. See Snoeck, 153 F.3d at 988-91 (Tashima, J., dissenting). Still, it remains the law of the circuit and this three-judge panel should give it the respect it is due. Because I conclude that Snoeck, rather than Eu, controls this case, I would reverse the district court’s

COALITION TO DEFEND v. B ROWN

3573

denial of Eleventh Amendment immunity to defendant Yudof. I therefore respectfully dissent from Part III.A of the majority opinion.

 
 Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 1 of 28
ADRMOP,E−Filing
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:10−cv−00641−SC

Coalition to Defend Affirmative Action et al v. Schwarzenegger et al Assigned to: Hon. Samuel Conti Case in other court: 11−15100
11−15241 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 02/16/2010 Date Terminated: 12/08/2010 Jury Demand: None Nature of Suit: 950 Constitutional − State Statute Jurisdiction: Federal Question

Coalition to Defend Affirmative Action

represented by Ronald T Cruz Scheff, Washington &Driver 2015 Filbert St. Oakland, CA 94607 510−501−2435 Email: ronald@bamn.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington 645 Griswold Street Suite 1817 Detroit, MI 48226 313−963−1921 PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver Scheff &Washington, P.C. 645 Griswold St. Suite 1817 Detroit, MI 48226 313−963−1921 Email: shantadriver@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington Scheff &Washington, P.C. 65 Cadillac Square Suite 3800 Detroit, MI 48226 313−963−1921 Fax: 313−963−7587 Email: scheff@ameritech.net ATTORNEY TO BE NOTICED

Plaintiff
Integration and Immigrant Rights and Fight for Equality by Any Means Necessary (BAMN)

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 2 of 28

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Defend Affirmative Action Party (DAAP)

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Issamar Camacho

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jeremy Bamidele

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 3 of 28

Plaintiff Maria Belman
Plaintiff Jonathan Brooks
Plaintiff Christian Ivan Burgos

George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address)

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 4 of 28

ATTORNEY TO BE NOTICED

Plaintiff Mayra Casillas

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Bianca Centeno

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Calvin Jevon Cochran

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 5 of 28

Adan De La Cruz by his next friend Luis De La Cruz

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Veronica Donerson

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Omar Serag Eldin by his next friend Gamil Serag Eldin

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose Flores

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 6 of 28

ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Michelle Flores by her next friend Victoria Barranco

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jenesis Fonseca by her next friend Angelica Ledezma

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gabriela Galicia

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 7 of 28

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Iliana Gallaga

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose Garcia

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Miyuki Gomez by her next friend Rosa Maria Gomez

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 8 of 28

Plaintiff Patricia Gonzalez
Plaintiff Anthony Keoki Gracia
Plaintiff Rabiah Harrison

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address)

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 9 of 28

PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Rose Anita Hernandez

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Zaira Hernandez

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Daniel De Jesus Herrera

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 10 of 28

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brenda Iglesias

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jessica Jimenez

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sarah Kim

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 11 of 28

Plaintiff Dominique Lofgren
Plaintiff Antonio Love
Plaintiff Nayeli A. Maravillas by her next friend Martin Maravillas
Plaintiff

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 12 of 28

Gabriela Martinez by her next friend Dora Martinez

Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Javier Meza

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Gladys Morales by her next friend Rocio Morales

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jalima Morales

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 13 of 28

ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Aislyn T. Namanga

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Han Kyul Noh by his next friend Lucia Noh

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Nicholas Ogbuehi

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 14 of 28

(See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Auria Perez

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Maria Elena Polanco by her next friend Adela Santibana

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Japhinma Power

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 15 of 28

Plaintiff Merari Ramirez
Plaintiff Nancy J. Rodriguez by her next friend Lucia Castillo
Plaintiff Aaron Sampson

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address)

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 16 of 28

PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Andrew Sanchez

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Dominque Short−Thomas

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Alejandra Solis by her next friend Rosa Desormaux

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 17 of 28

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Desiree Tienturier

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Jasmine Tovar by her next friend Luz Tovar

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Brenda Trujillo

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 18 of 28

Plaintiff Jose Roberto Valenzuela
Plaintiff Ruby Villarruel by her next friend Olivia Villarruel
Plaintiff Jerrica Webb
Plaintiff Tanisha West

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
George B. Washington (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 19 of 28

Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Amber Williams by her next friend Carlette King−Williams

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Ricardo Zazueta

represented by Ronald T Cruz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

George B. Washington (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Shanta Driver (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

George B. Washington (See above for address) ATTORNEY TO BE NOTICED

V. Defendant

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 20 of 28

Arnold Schwarzenegger in his official capacity as Governor of the State of California

represented by Andrew Walter Stroud Mennemeier,Glassman &Stroud 980 9th Street, Suite 1700 Sacramento, CA 95814−2736 (916)553−4000 Fax: (916)553−4011 Email: stroud@mgslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Regents of the University of California

represented by Bradley S. Phillips Munger Tolles &Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071−1560 213−683−9100 Fax: 213−683−3702 Email: phillipsbs@mto.com ATTORNEY TO BE NOTICED

Charles Furlonge Robinson University of California 1111 Franklin Street Oakland, Ca 94607 (510) 987−9800 Fax: 510 987−9757 ATTORNEY TO BE NOTICED

Margaret Louisa Wu UC Office of the General Counsel 1111 Franklin Street, 8th Floor Oakland, CA 94607 (510) 987−9747 Fax: (510) 987−9757 Email: margaret.wu@ucop.edu ATTORNEY TO BE NOTICED

Michelle Friedland Munger, Tolles &Olson LLP 560 Mission Street Twenty−Seventh Floor San Francisco, CA 94105 415−512−4042 Email: Michelle.Friedland@mto.com ATTORNEY TO BE NOTICED

Soraya Coronado Kelly Munger, Tolles &Olson LLP 355 South Grand Avenue, 35th Floor Los Angeles, CA 90071−1560 213−683−9100 x9502 Fax: 213−687−3702 Email: soraya.kelly@mto.com ATTORNEY TO BE NOTICED

Defendant
Mark Yudof in his official capacity as President of the University of California

represented by Bradley S. Phillips (See above for address) ATTORNEY TO BE NOTICED

Charles Furlonge Robinson (See above for address) ATTORNEY TO BE NOTICED

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 21 of 28
Margaret Louisa Wu (See above for address) ATTORNEY TO BE NOTICED
Michelle Friedland (See above for address) ATTORNEY TO BE NOTICED
Soraya Coronado Kelly (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor Dft Ward Connerly
Intervenor Dft American Civil Rights Foundation
Intervenor Dft California Association of Scholars

represented by Joshua Paul Thompson Pacific Legal Foundation 930 G Street Sacramento, CA 95814 916−491−7111 Fax: 916−419−7747 Email: jpt@pacificlegal.org ATTORNEY TO BE NOTICED
Ralph William Kasarda , Jr. Pacific Legal Foundation 930 G Street Sacramento, CA 95814 916−419−7111 Fax: 916−419−7747 Email: rwk@pacificlegal.org ATTORNEY TO BE NOTICED
Sharon Louise Browne Pacific Legal Foundation 930 G Street Sacramento, CA 95814 916−419−7111 Fax: 916−419−7747 Email: slb@pacificlegal.org ATTORNEY TO BE NOTICED
represented by Joshua Paul Thompson (See above for address) ATTORNEY TO BE NOTICED
Ralph William Kasarda , Jr. (See above for address) ATTORNEY TO BE NOTICED
Sharon Louise Browne (See above for address) ATTORNEY TO BE NOTICED
represented by Joshua Paul Thompson (See above for address) ATTORNEY TO BE NOTICED
Ralph William Kasarda , Jr. (See above for address)

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 22 of 28
ATTORNEY TO BE NOTICED
Sharon Louise Browne (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/16/2010
02/16/2010 02/16/2010 02/16/2010 02/18/2010 05/03/2010

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF (CLASS ACTION);(NO PROCESS) against Regents of the University of California, Arnold Schwarzenegger, Mark Yudof ( Filing fee $ 350.00, receipt number 44611004808.). Filed byGabriela Martinez, Jenesis Fonseca, Antonio Love, Calvin Jevon Cochran, Regents of the University of California, Gladys Morales, Issamar Camacho, Mayra Casillas, Desiree Tienturier, Coalition to Defend Affirmative Action, Brenda Iglesias, Veronica Donerson, Omar Serag Eldin, Dominque Short−Thomas, Maria Elena Polanco, Aislyn T. Namanga, Jessica Jimenez, Dominique Lofgren, Ricardo Zazueta, Jerrica Webb, Javier Meza, Sarah Kim, Brenda Trujillo, Rose Anita Hernandez, Nancy J. Rodriguez, Michelle Flores, Amber Williams, Gabriela Galicia, Maria Belman, Daniel De Jesus Herrera, Aaron Sampson, Ruby Villarruel, Nicholas Ogbuehi, Merari Ramirez, Andrew Sanchez, Han Kyul Noh, Jonathan Brooks, Adan De La Cruz, Jose Roberto Valenzuela, Nayeli A. Maravillas, Jose Flores, Japhinma Power, Jose Garcia, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Alejandra Solis, Tanisha West, Jeremy Bamidele, Zaira Hernandez, Miyuki Gomez, Christian Ivan Burgos, Rabiah Harrison, Auria Perez, Jasmine Tovar, Jalima Morales, Iliana Gallaga, Anthony Keoki Gracia, Bianca Centeno, Patricia Gonzalez, Defend Affirmative Action Party (DAAP). (aaa, COURT STAFF) (Filed on 2/16/2010) (aaa, COURT STAFF). (Additional attachment(s) added on 3/16/2010: # 1 Civil Cover Sheet) (aaa, COURT STAFF). (Entered: 02/17/2010)
2 ADR SCHEDULING ORDER: Case Management Statement due by 6/9/2010. Case Management Conference set for 6/16/2010 10:00 AM. Signed by Senior Judge Samuel Conti on 2/16/10. (Attachments: # 1 SC Standing Order, # 2 Standing Order)(aaa, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/17/2010)
3 MOTION for leave for admission of Attorney George B. Washington to appear in Pro Hac Vice ( Filing fee $ 210.00, receipt number 44611004808.) filed by Jeremy Bamidele. (Attachments: # 1 Proposed Order)(aaa, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/17/2010)
CASE DESIGNATED for Electronic Filing. (aaa, COURT STAFF) (Filed on 2/16/2010) (Entered: 02/17/2010)
4 ORDER by Judge Samuel Conti granting 3 MOTION for leave for admission of Attorney George B. Washington to appear in Pro Hac Vice (tdm, COURT STAFF) (Filed on 2/18/2010) (Entered: 02/18/2010)
5 WAIVER OF SERVICE Returned Executed filed by Gabriela Martinez, Jenesis Fonseca, Antonio Love, Calvin Jevon Cochran, Gladys Morales, Issamar Camacho, Mayra Casillas, Desiree Tienturier, Coalition to Defend Affirmative Action, Brenda Iglesias, Veronica Donerson, Omar Serag Eldin, Dominque Short−Thomas, Maria Elena Polanco, Aislyn T. Namanga, Jessica Jimenez, Dominique Lofgren, Ricardo Zazueta, Jerrica Webb, Javier Meza, Sarah Kim, Brenda Trujillo, Rose Anita Hernandez, Nancy J. Rodriguez, Michelle Flores, Amber Williams, Gabriela Galicia, Maria Belman, Daniel De Jesus Herrera, Aaron Sampson, Ruby Villarruel, Nicholas Ogbuehi, Merari Ramirez, Andrew Sanchez, Han Kyul Noh, Jonathan Brooks, Adan De La Cruz, Jose Roberto Valenzuela, Nayeli A. Maravillas, Jose Flores, Japhinma Power, Jose Garcia, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Alejandra Solis, Tanisha West, Jeremy Bamidele, Zaira Hernandez, Miyuki Gomez, Christian Ivan Burgos, Rabiah Harrison, Auria Perez, Jasmine Tovar, Jalima Morales, Iliana Gallaga, Anthony Keoki Gracia, Bianca Centeno, Patricia Gonzalez, Defend Affirmative Action Party (DAAP). Service waived by Arnold Schwarzenegger waiver sent on 3/30/2010, answer due 6/1/2010. (Washington, George) (Filed on 5/3/2010) (Entered: 05/03/2010)

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 23 of 28

05/03/2010
05/03/2010
05/28/2010 05/28/2010 06/03/2010 06/04/2010 06/14/2010 06/14/2010 06/15/2010

6 WAIVER OF SERVICE Returned Executed filed by Gabriela Martinez, Jenesis Fonseca, Antonio Love, Calvin Jevon Cochran, Gladys Morales, Issamar Camacho, Mayra Casillas, Desiree Tienturier, Coalition to Defend Affirmative Action, Brenda Iglesias, Veronica Donerson, Omar Serag Eldin, Dominque Short−Thomas, Maria Elena Polanco, Aislyn T. Namanga, Jessica Jimenez, Dominique Lofgren, Ricardo Zazueta, Jerrica Webb, Javier Meza, Sarah Kim, Brenda Trujillo, Rose Anita Hernandez, Nancy J. Rodriguez, Michelle Flores, Amber Williams, Gabriela Galicia, Maria Belman, Daniel De Jesus Herrera, Aaron Sampson, Ruby Villarruel, Nicholas Ogbuehi, Merari Ramirez, Andrew Sanchez, Han Kyul Noh, Jonathan Brooks, Adan De La Cruz, Jose Roberto Valenzuela, Nayeli A. Maravillas, Jose Flores, Japhinma Power, Jose Garcia, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Alejandra Solis, Tanisha West, Jeremy Bamidele, Zaira Hernandez, Miyuki Gomez, Christian Ivan Burgos, Rabiah Harrison, Auria Perez, Jasmine Tovar, Jalima Morales, Iliana Gallaga, Anthony Keoki Gracia, Bianca Centeno, Patricia Gonzalez, Defend Affirmative Action Party (DAAP). Service waived by Mark Yudof waiver sent on 4/15/2010, answer due 6/14/2010. (Washington, George) (Filed on 5/3/2010) (Entered: 05/03/2010)
7 WAIVER OF SERVICE Returned Executed filed by Gabriela Martinez, Jenesis Fonseca, Antonio Love, Calvin Jevon Cochran, Gladys Morales, Issamar Camacho, Mayra Casillas, Desiree Tienturier, Coalition to Defend Affirmative Action, Brenda Iglesias, Veronica Donerson, Omar Serag Eldin, Dominque Short−Thomas, Maria Elena Polanco, Aislyn T. Namanga, Jessica Jimenez, Dominique Lofgren, Ricardo Zazueta, Jerrica Webb, Javier Meza, Sarah Kim, Brenda Trujillo, Rose Anita Hernandez, Nancy J. Rodriguez, Michelle Flores, Amber Williams, Gabriela Galicia, Maria Belman, Daniel De Jesus Herrera, Aaron Sampson, Ruby Villarruel, Nicholas Ogbuehi, Merari Ramirez, Andrew Sanchez, Han Kyul Noh, Jonathan Brooks, Adan De La Cruz, Jose Roberto Valenzuela, Nayeli A. Maravillas, Jose Flores, Japhinma Power, Jose Garcia, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Alejandra Solis, Tanisha West, Jeremy Bamidele, Zaira Hernandez, Miyuki Gomez, Christian Ivan Burgos, Rabiah Harrison, Auria Perez, Jasmine Tovar, Jalima Morales, Iliana Gallaga, Anthony Keoki Gracia, Bianca Centeno, Patricia Gonzalez, Defend Affirmative Action Party (DAAP). Service waived by Regents of the University of California waiver sent on 4/15/2010, answer due 6/14/2010. (Washington, George) (Filed on 5/3/2010) (Entered: 05/03/2010)
8 MOTION to Dismiss filed by Arnold Schwarzenegger. Motion Hearing set for 7/9/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Stroud, Andrew) (Filed on 5/28/2010) (Entered: 05/28/2010)
9 Memorandum of Points and Authorities in Support of 8 MOTION TO DISMISS filed by Arnold Schwarzenegger. Motion Hearing set for 7/9/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Stroud, Andrew) (Filed on 5/28/2010) Modified on 6/1/2010 (aaa, COURT STAFF). (Entered: 05/28/2010)
10 ADR Clerks Notice re: Non−Compliance with Court Order. (tjs, COURT STAFF) (Filed on 6/3/2010) (Entered: 06/03/2010)
11 CLERKS NOTICE Case Management Conference set for 6/16/10 is continued to 8/13/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (tdm, COURT STAFF) (Filed on 6/4/2010) (Entered: 06/04/2010)
12 MOTION to Dismiss Pursuant To Fed.R.Civ.P. 12(B)(1) &21; Memorandum of Points and Authorities In Support Thereof filed by Regents of the University of California, Mark Yudof. Motion Hearing set for 7/23/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Kelly, Soraya) (Filed on 6/14/2010) (Entered: 06/14/2010)
13 CERTIFICATE OF SERVICE by Regents of the University of California, Mark Yudof re 12 MOTION to Dismiss Pursuant To Fed.R.Civ.P. 12(B)(1) &21; Memorandum of Points and Authorities In Support Thereof MOTION to Dismiss Pursuant To Fed.R.Civ.P. 12(B)(1) &21; Memorandum of Points and Authorities In Support Thereof (Kelly, Soraya) (Filed on 6/14/2010) (Entered: 06/14/2010)
14 NOTICE of Appearance by Michelle Friedland for Regents of the University of California and Mark Yudof (Friedland, Michelle) (Filed on 6/15/2010) (Entered:

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 24 of 28

06/15/2010 06/15/2010 06/15/2010 06/15/2010
06/15/2010
06/15/2010
06/15/2010
06/15/2010
06/15/2010 06/15/2010 06/16/2010 06/17/2010
06/21/2010 06/21/2010 07/03/2010 07/03/2010

06/15/2010)
15 NOTICE of Appearance by Sharon Louise Browne for Sharon L. Browne (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
16 NOTICE of Appearance by Sharon Louise Browne for Ralph W. Kasarda (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
17 NOTICE of Appearance by Sharon Louise Browne for Joshua P. Thompson (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
18 MOTION to Intervene filed by American Civil Rights Foundation, California Association of Scholars, Ward Connerly. Motion Hearing set for 7/23/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Attachments: # 1 Exhibit A − Motion to Dismiss)(Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
19 Declaration of Diana Schachterle on Behalf of American Civil Rights Foundation in Support of 18 MOTION to Intervene filed byAmerican Civil Rights Foundation, California Association of Scholars, Ward Connerly. (Related document(s) 18 ) (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
20 Declaration of Ward Connerly in Support of 18 MOTION to Intervene filed byAmerican Civil Rights Foundation, California Association of Scholars, Ward Connerly. (Related document(s) 18 ) (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
21 Declaration of Sharon L. Browne in Support of 18 MOTION to Intervene filed byAmerican Civil Rights Foundation, California Association of Scholars, Ward Connerly. (Attachments: # 1 Exhibit A − UC Website Article)(Related document(s) 18 ) (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
22 Declaration of John M. Ellis on Behalf of California Association of Scholars in Support of 18 MOTION to Intervene filed byAmerican Civil Rights Foundation, California Association of Scholars, Ward Connerly. (Attachments: # 1 Exhibit A − Letter to California State Assembly)(Related document(s) 18 ) (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
23 Proposed Order re 18 MOTION to Intervene Granting Motion to Intervene by American Civil Rights Foundation, California Association of Scholars, Ward Connerly. (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
24 CERTIFICATE OF SERVICE by American Civil Rights Foundation, California Association of Scholars, Ward Connerly re 18 MOTION to Intervene (Browne, Sharon) (Filed on 6/15/2010) (Entered: 06/15/2010)
25 NOTICE of Appearance by Margaret Louisa Wu (Wu, Margaret) (Filed on 6/16/2010) (Entered: 06/16/2010)
26 STIPULATION TO CONTINUE HEARING DATE OF DEFENDANT ARNOLD SCHWARZENEGGER'S MOTION TO DISMISS; [PROPOSED] ORDER THEREON by Arnold Schwarzenegger. (Stroud, Andrew) (Filed on 6/17/2010) Modified on 6/18/2010 (aaa, COURT STAFF). (Entered: 06/17/2010)
27 ORDER Continuing Hearing on Def. Schwarzenegger's Motion to Dismiss to July 23, 2010. Signed by Judge Samuel Conti on 6/21/2010. (sclc2, COURT STAFF) (Filed on 6/21/2010) (Entered: 06/21/2010)
Set/Reset Deadlines as to 8 MOTION to Dismiss. Motion Hearing Continued for 7/23/2010 10:00 AM. Re 27 Order (aaa, COURT STAFF) (Filed on 6/21/2010) (Entered: 06/22/2010)
28 Memorandum in Opposition to University Defendants' 12 Motion to Dismiss filed byCoalition to Defend Affirmative Action. (Cruz, Ronald) (Filed on 7/3/2010) Modified on 7/7/2010 (aaa, COURT STAFF). (Entered: 07/03/2010)
29 Memorandum in Opposition to 18 Motion to Intervene of Connerly, et al. filed byCoalition to Defend Affirmative Action. (Cruz, Ronald) (Filed on 7/3/2010) Modified on 7/7/2010 (aaa, COURT STAFF). (Entered: 07/03/2010)

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 25 of 28

07/05/2010 07/06/2010 07/09/2010 07/09/2010 07/09/2010 07/09/2010 07/09/2010
07/09/2010
07/16/2010

30 Memorandum in Opposition to Defendant Schwarzenegger's 8 Motion to Dismiss filed byCoalition to Defend Affirmative Action. (Cruz, Ronald) (Filed on 7/5/2010) Modified on 7/7/2010 (aaa, COURT STAFF). (Entered: 07/05/2010)
31 MOTION for leave for admission of Attorney Shanta Driver to appear in Pro Hac Vice ( Filing fee $ 210.00, receipt number 34611047725.) filed by Plaintiff(s). (Attachments: # 1 Proposed Order)(aaa, COURT STAFF) (Filed on 7/6/2010) (Entered: 07/07/2010)
32 ORDER by Judge Samuel Conti granting 31 Motion for admission of Attorney Shanta Driver to appear in Pro Hac Vice (tdm, COURT STAFF) (Filed on 7/9/2010) (Entered: 07/09/2010)
33 Reply to Opposition of Plaintiff filed byArnold Schwarzenegger. (Stroud, Andrew) (Filed on 7/9/2010) (Entered: 07/09/2010)
34 Reply Memorandum in Support of University Defendants' 12 Motion to Dismiss filed byRegents of the University of California, Mark Yudof. (Phillips, Bradley) (Filed on 7/9/2010) Modified on 7/13/2010 (aaa, COURT STAFF). (Entered: 07/09/2010)
35 MOTION to Strike 29 Memorandum in Opposition or, Reply in Support of Proposed Defendant−Intervenors' Motion to Intervene filed by American Civil Rights Foundation, California Association of Scholars, Ward Connerly. Motion Hearing set for 7/23/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Kasarda, Ralph) (Filed on 7/9/2010) (Entered: 07/09/2010)
36 Declaration of Ralph W. Kasarda in Support of 35 MOTION to Strike 29 Memorandum in Opposition or, Reply in Support of Proposed Defendant−Intervenors' Motion to Intervene MOTION to Strike 29 Memorandum in Opposition or, Reply in Support of Proposed Defendant−Intervenors' Motion to Intervene filed byAmerican Civil Rights Foundation, California Association of Scholars, Ward Connerly. (Attachments: # 1 Exhibit A − Electronic notice of filing)(Related document(s) 35 ) (Kasarda, Ralph) (Filed on 7/9/2010) (Entered: 07/09/2010)
37 Declaration of Joshua P. Thompson in Support of 35 MOTION to Strike 29 Memorandum in Opposition or, Reply in Support of Proposed Defendant−Intervenors' Motion to Intervene MOTION to Strike 29 Memorandum in Opposition or, Reply in Support of Proposed Defendant−Intervenors' Motion to Intervene filed byAmerican Civil Rights Foundation, California Association of Scholars, Ward Connerly. (Attachments: # 1 Exhibit A − Minute Order)(Related document(s) 35 ) (Kasarda, Ralph) (Filed on 7/9/2010) (Entered: 07/09/2010)
38 Memorandum in Opposition re 35 MOTION to Strike 29 Memorandum in Opposition or, Reply in Support of Proposed Defendant−Intervenors' Motion to Intervene MOTION to Strike 29 Memorandum in Opposition or, Reply in Support of Proposed Defendant−Intervenors' Motion to Intervene filed byJeremy Bamidele, Maria Belman, Jonathan Brooks, Christian Ivan Burgos, Issamar Camacho, Mayra Casillas, Bianca Centeno, Coalition to Defend Affirmative Action, Calvin Jevon Cochran, Adan De La Cruz, Defend Affirmative Action Party (DAAP), Veronica Donerson, Omar Serag Eldin, Jose Flores, Michelle Flores, Jenesis Fonseca, Gabriela Galicia, Iliana Gallaga, Jose Garcia, Miyuki Gomez, Patricia Gonzalez, Anthony Keoki Gracia, Rabiah Harrison, Rose Anita Hernandez, Zaira Hernandez, Daniel De Jesus Herrera, Brenda Iglesias, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Jessica Jimenez, Sarah Kim, Dominique Lofgren, Antonio Love, Nayeli A. Maravillas, Gabriela Martinez, Javier Meza, Gladys Morales, Jalima Morales, Aislyn T. Namanga, Han Kyul Noh, Nicholas Ogbuehi, Auria Perez, Maria Elena Polanco, Japhinma Power, Merari Ramirez, Nancy J. Rodriguez, Aaron Sampson, Andrew Sanchez, Dominque Short−Thomas, Alejandra Solis, Desiree Tienturier, Jasmine Tovar, Brenda Trujillo, Jose Roberto Valenzuela, Ruby Villarruel, Jerrica Webb, Tanisha West, Amber Williams, Ricardo Zazueta. (Attachments: # 1 Proposed Order Proposed Order Denying Motion to Strike and Accepting Plaintiffs' Briefs as Timely Filed)(Washington, George) (Filed on 7/16/2010) (Entered: 07/16/2010)

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 26 of 28

07/16/2010
07/30/2010 07/30/2010 08/25/2010 09/07/2010 09/07/2010 09/08/2010 09/10/2010 09/14/2010 09/22/2010 10/05/2010 10/25/2010

39 AFFIDAVIT in Support of Plaintiff's Response to the 35 Motion to Strike and in Support of Motion to Accept Memos as Timely Filed filed byJeremy Bamidele, Maria Belman, Jonathan Brooks, Christian Ivan Burgos, Issamar Camacho, Mayra Casillas, Bianca Centeno, Coalition to Defend Affirmative Action, Calvin Jevon Cochran, Adan De La Cruz, Defend Affirmative Action Party (DAAP), Veronica Donerson, Omar Serag Eldin, Jose Flores, Michelle Flores, Jenesis Fonseca, Gabriela Galicia, Iliana Gallaga, Jose Garcia, Miyuki Gomez, Patricia Gonzalez, Anthony Keoki Gracia, Rabiah Harrison, Rose Anita Hernandez, Zaira Hernandez, Daniel De Jesus Herrera, Brenda Iglesias, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Jessica Jimenez, Sarah Kim, Dominique Lofgren, Antonio Love, Nayeli A. Maravillas, Gabriela Martinez, Javier Meza, Gladys Morales, Jalima Morales, Aislyn T. Namanga, Han Kyul Noh, Nicholas Ogbuehi, Auria Perez, Maria Elena Polanco, Japhinma Power, Merari Ramirez, Nancy J. Rodriguez, Aaron Sampson, Andrew Sanchez, Dominque Short−Thomas, Alejandra Solis, Desiree Tienturier, Jasmine Tovar, Brenda Trujillo, Jose Roberto Valenzuela, Ruby Villarruel, Jerrica Webb, Tanisha West, Amber Williams, Ricardo Zazueta. (Washington, George) (Filed on 7/16/2010) Modified on 7/19/2010 (aaa, COURT STAFF). (Entered: 07/16/2010)
40 STIPULATION Request and [Proposed] Order To Continue Case Management Conference by Regents of the University of California, Mark Yudof. (Kelly, Soraya) (Filed on 7/30/2010) (Entered: 07/30/2010)
41 STIPULATION AND ORDER Case Management Conference set for 8/13/10 is continued to Thursday 9/16/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco.. Signed by Judge Samuel Conti on 7/30/10. (tdm, COURT STAFF) (Filed on 7/30/2010) Modified on 7/30/2010 (tdm, COURT STAFF). (Entered: 07/30/2010)
42 ORDER denying 8 Motion to Dismiss; granting in part and denying in part 12 Motion to Dismiss; granting in part and denying in part 18 Motion to Intervene; denying 35 Motion to Strike (sclc1, COURT STAFF) (Filed on 8/25/2010) (Entered: 08/25/2010)
43 *** FILED IN ERROR. REFER TO DOCUMENT 44 . *** STIPULATION re 1 Complaint,,,,,, by Mark Yudof. (Kelly, Soraya) (Filed on 9/7/2010) Modified on 9/8/2010 (feriab, COURT STAFF). (Entered: 09/07/2010)
44 STIPULATION AND [PROPOSED] ORDER CORRECTION OF DOCKET # 43 by Mark Yudof. (Kelly, Soraya) (Filed on 9/7/2010) Modified on 9/8/2010 (aaa, COURT STAFF). (Entered: 09/07/2010)
45 STIPULATION AND ORDER re 44 Stipulation filed by Mark Yudof (sclc1, COURT STAFF) (Filed on 9/8/2010) (Entered: 09/08/2010)
46 STIPULATION and [Proposed] Order re Defendant Arnold Scwarzenegger's Time to Respond to Complaint by Arnold Schwarzenegger. (Stroud, Andrew) (Filed on 9/10/2010) (Entered: 09/10/2010)
47 STIPULATION AND ORDER extending Defendant Arnold Schwarzenegger's time to respond to Plaintiff's complaint to thirty (30) days after the Court rules on the motion to dismiss to be filed by Defendant−Intervenors. Signed by Judge Samuel Conti on 9/14/10. (tdm, COURT STAFF) (Filed on 9/14/2010) (Entered: 09/14/2010)
48 ***PLEASE DISREGARD − FILED IN WRONG CASE*** Minute Entry: Status Conference (Date Filed: 9/22/2010). Case continued to 10/20/10 @ 2:15 pm for change of plea. (Court Reporter Margo Gurule.) (sis, COURT STAFF) (Date Filed: 9/22/2010) Modified on 9/23/2010 (sis, COURT STAFF). (Entered: 09/23/2010)
49 MOTION to Dismiss Plaintiffs' Complaint and Memorandum of Points and Authorities in Support of Motion to Dismiss filed by American Civil Rights Foundation, Ward Connerly. Motion Hearing set for 11/15/2010 10:00 AM in Courtroom 1, 17th Floor, San Francisco. (Browne, Sharon) (Filed on 10/5/2010) (Entered: 10/05/2010)
50 Memorandum in Opposition re 49 MOTION to Dismiss Plaintiffs' Complaint and Memorandum of Points and Authorities in Support of Motion to Dismiss filed

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 27 of 28

10/29/2010 11/10/2010
12/08/2010 01/07/2011
01/11/2011 01/11/2011 01/21/2011 01/21/2011 01/21/2011
01/25/2011

byJeremy Bamidele, Maria Belman, Jonathan Brooks, Christian Ivan Burgos, Issamar Camacho, Mayra Casillas, Bianca Centeno, Coalition to Defend Affirmative Action, Calvin Jevon Cochran, Adan De La Cruz, Defend Affirmative Action Party (DAAP), Veronica Donerson, Omar Serag Eldin, Jose Flores, Michelle Flores, Jenesis Fonseca, Gabriela Galicia, Iliana Gallaga, Jose Garcia, Miyuki Gomez, Patricia Gonzalez, Anthony Keoki Gracia, Rabiah Harrison, Rose Anita Hernandez, Zaira Hernandez, Daniel De Jesus Herrera, Brenda Iglesias, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Jessica Jimenez, Sarah Kim, Dominique Lofgren, Antonio Love, Nayeli A. Maravillas, Gabriela Martinez, Javier Meza, Gladys Morales, Jalima Morales, Aislyn T. Namanga, Han Kyul Noh, Nicholas Ogbuehi, Auria Perez, Maria Elena Polanco, Japhinma Power, Merari Ramirez, Nancy J. Rodriguez, Aaron Sampson, Andrew Sanchez, Dominque Short−Thomas, Alejandra Solis, Desiree Tienturier, Jasmine Tovar, Brenda Trujillo, Jose Roberto Valenzuela, Ruby Villarruel, Jerrica Webb, Tanisha West, Amber Williams, Ricardo Zazueta. (Cruz, Ronald) (Filed on 10/25/2010) (Entered: 10/25/2010)
51 Reply to Opposition re 49 MOTION to Dismiss Plaintiffs' Complaint and Memorandum of Points and Authorities in Support of Motion to Dismiss filed byAmerican Civil Rights Foundation, Ward Connerly. (Attachments: # 1 Proposed Order)(Browne, Sharon) (Filed on 10/29/2010) (Entered: 10/29/2010)
52 CLERKS NOTICE: Defendant−Intervenors Motion to Dismiss Plaintiffs Complaint set for hearing on Monday, November 15, 2010, at 10:00 a.m. before the Honorable Samuel Conti is submitted for a decision on the pleadings. Parties are hereby informed that there will be no appearances and no oral arguments on this matter pursuant to Civil LR 7−1(b). (tdm, COURT STAFF) (Filed on 11/10/2010) (Entered: 11/10/2010)
53 ORDER by Judge Samuel Conti granting 49 Motion to Dismiss (sclc1, COURT STAFF) (Filed on 12/8/2010) (Entered: 12/08/2010)
54 NOTICE OF APPEAL as to 53 Order on Motion to Dismiss by Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality by Any Means Necessary. Filing fee $ 455, Receipt Number 34611054753.(far, COURT STAFF) (Filed on 1/7/2011) (Additional attachment(s) added on 1/25/2011: # 1 USCA NUMBER: 11−15100) (aaa, COURT STAFF). (Entered: 01/11/2011)
55 Copy of Notice of Appeal and Docket sheet mailed to all counsel (Attachments: # 1 docket sheet)(far, COURT STAFF) (Filed on 1/11/2011) (Entered: 01/11/2011)
56 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 54 Notice of Appeal, (Attachments: # 1 docket sheet, # 2 cover letter, # 3 USCA Appeal Notification Form)(far, COURT STAFF) (Filed on 1/11/2011) (Entered: 01/11/2011)
Filing fee: $ 455.00, receipt number 34611055276. By Coalition to Defend Affirmative Action, et al., (aaa, COURT STAFF) (Filed on 1/21/2011) (Entered: 01/21/2011)
57 ERRONEOUSLY E−FILED: COUNSEL TO PHYSICALLY FILE THE CROSS APPEAL NOTICE by Mark Yudof re 54 Notice of Appeal, Notice of Cross−Appeal (Phillips, Bradley) (Filed on 1/21/2011) Modified on 1/24/2011 (aaa, COURT STAFF). (Entered: 01/21/2011)
59 NOTICE OF CROSS APPEAL as to 42 Order on Motion to Dismiss, Order on Motion to Intervene, Order on Motion to Strike by Regents of the University of California, Mark Yudof. Filing fee $ 455.00., Receipt Number 34611055276: E−filed on 01/21/11 as per Chambers (aaa, COURT STAFF) (Filed on 1/21/2011) (Additional attachment(s) added on 2/3/2011: # 1 USCA NUMBER: 11−15241) (aaa, COURT STAFF). (Entered: 01/25/2011)
58 USCA Case Number 11−15100 for 54 Notice of Appeal, filed by Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Coalition to Defend Affirmative Action. (aaa, COURT STAFF) (Filed on 1/25/2011) (Entered: 01/25/2011)

Case: 3:10-cv-641 As of: 05/10/2013 08:41 PM PDT 28 of 28

01/25/2011 01/25/2011 02/03/2011 02/09/2012
04/03/2012 05/16/2012
05/31/2012
05/31/2012 08/02/2012

60 Electronic Transmission of Notice of Cross Appeal and Docket Sheet to US Court of Appeals re 59 Notice of Cross Appeal, (aaa, COURT STAFF) (Filed on 1/25/2011) (Additional attachment(s) added on 1/25/2011: # 1 Civil Docket) (aaa, COURT STAFF). (Entered: 01/25/2011)
61 Copy of 59 Notice of Cross Appeal and Docket sheet mailed to all counsel and to all parties without an e−mail address (aaa, COURT STAFF) (Filed on 1/25/2011) (Additional attachment(s) added on 1/25/2011: # 1 Civil Docket) (aaa, COURT STAFF). (Entered: 01/25/2011)
62 USCA Case Number 11−15241 for 59 Notice of Cross Appeal, filed by Mark Yudof, Regents of the University of California. (aaa, COURT STAFF) (Filed on 2/3/2011) (Entered: 02/03/2011)
63 ORDER of USCA: The parties' Stipulation Regarding Oral Argument is GRANTED; as to 59 Notice of Cross Appeal, filed by Mark Yudof, Regents of the University of California, 54 Notice of Appeal, filed by Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Coalition to Defend Affirmative Action (aaa, COURT STAFF) (Filed on 2/9/2012) (Entered: 02/09/2012)
64 USCA Memorandum: FOR PUBLICATION; as to 54 Notice of Appeal, filed by Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Coalition to Defend Affirmative Action (aaa, COURT STAFF) (Filed on 4/3/2012) (Entered: 04/03/2012)
65 ORDER of USCA: Yudof's and Plaintiffs' petitions for rehearing and petitions for rehearing en banc are DENIED; as to 59 Notice of Cross Appeal, filed by Mark Yudof, Regents of the University of California, 54 Notice of Appeal, filed by Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Coalition to Defend Affirmative Action (Attachments: # 1 USCA Order)(aaa, COURT STAFF) (Filed on 5/16/2012) (Entered: 05/16/2012)
66 MANDATE of USCA: The judgment of this Court, entered April 02, 2012, takes effect this date. This constitutes the formal mandate of this Court; as to 59 Notice of Cross Appeal, filed by Mark Yudof, Regents of the University of California, 54 Notice of Appeal, filed by Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Coalition to Defend Affirmative Action (aaa, COURT STAFF) (Filed on 5/31/2012) (Entered: 05/31/2012)
67 CLERKS Letter Spreading Mandate to Counsel re 66 USCA Mandate (aaa, COURT STAFF) (Filed on 5/31/2012) (Entered: 05/31/2012)
68 Letter from the Supreme Court of the United States: The application for an extension of time within which to file a petition for a writ of certiorari has been presented to Justice Kennedy, who on July 11, 2012 extended the time to and including September 10, 2012; as to 59 Notice of Cross Appeal, filed by Mark Yudof, Regents of the University of California, 54 Notice of Appeal, filed by Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, Coalition to Defend Affirmative Action (aaa, COURT STAFF) (Filed on 8/2/2012) (Entered: 08/02/2012)