California Judge asks Governor to defend affirmative action policy

The California State Constitution at Article 1 Section 31 reads:

SEC. 31. (a) The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis ofrace, sex, color, ethnicity, or national origin in the operation ofpublic employment, public education, or public contracting.

Basically, there is no affirmative action in California. The Coalition (oddly misspelled "Coalitition" in the order) would like this section declared unconstitutional. They seek an injunction allowing the state to engage in affirmative action if it so desires. This case is interesting since the Ninth Circuit found Section 31 constitutional in Coalition for Economic Equity v. Wilson (9th Cir. 1997).

At this stage the governor and president of the Regents of the University of California move to dismiss the case claiming they are immune from suit under the 11th Amendment to the U.S. Constitution. The 11th Amendment prohibits individuals from suing a state for money damages unless the state consents to be sued. However, the Coalition is suing for an injunction, not money damages so this argument fails.

Judge Samuel Conti denied the motion to dismiss on Eleventh Amendment grounds and required the parties to brief whether Coalition for Economic Equity is dispositive of this case.

The case is Coalition to Defend Affirmative Action v. Schwarzenneger and Yudof, Case No. 10-641 and the opinion is below the jump.

Coalition to Defend Affirmative Action v. Schwarzenneger and Yudof