Coalition to Defend Affirmative Action v. Brown

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); DEFEND

AFFIRMATIVE ACTION PARTY,

(DAAP); ISSAMAR CAMACHO;

JEREMY BAMIDELE; MARIA BELMAN;

JONATHAN BROOKS; CHRISTIAN IVAN

BURGOS; MAYRA CASILLAS; BIANCA

CENTENO; CALVIN JEVON COCHRAN;

ADAN DE LA CRUZ, by his next

friend Luis De La Cruz; OMAR

SERAG ELDIN, by his next friend 

Gamil Serag Eldin; JOSE FLORES;

MICHELLE FLORES, by her next

friend Victoria Barranco; JENESIS

FONSECA, by her next friend

Angelica Ledezma; GABRIELA

GALICIA; ILIANA GALLAGA; JOSE

GARCIA; MIYUKI GOMEZ, by her

next friend Rosa Maria Gomez;

PATRICIA GONZALEZ; ANTHONY

KEOKI GRACIA; RABIAH HARRISON;

ROSE ANITA HERNANDEZ; ZAIRA

HERNANDEZ; DANIEL DE JESUS

HERRERA; BRENDA IGLESIAS;



3553

3554 COALITION TO DEFEND v. BROWN

JESSICA JIMENEZ; SARAH KIM; 

DOMINIQUE LOFGREN; ANTONIO

LOVE; NAYELI A. MARAVILLAS, by

her next friend Martin Maravillas;

GABRIELA MARTINEZ, by her next

friend Dora Martinez; JAVIER

MEZA; GLADYS MORALES, by her

next friend Rocio Morales; JALIMA

MORALES; AISLYN T. NAMANGA;

HAN KYUL NOH, by his next friend

Lucia Noh; NICHOLAS OGBUEHI;

AURIA PEREZ; MARIA ELENA

POLANCO, by her next friend Adela

Santibana; JAPHINMA POWER;

MERARI RAMIREZ; NANCY J.

RODRIGUEZ, by her next friend 

Lucia Castillo; AARON SAMPSON;

ANDREW SANCHEZ; DOMINIQUE

SHORT-THOMAS; ALEJANDRA SOLIS,

by her next friend Rosa

Desormaux; DESIREE TIENTURIER;

JASMINE TOVAR, by her next friend

Luz Tovar; BRENDA TRUJILLO; JOSE

ROBERTO VALENZUELA; RUBY

VILLARRUEL, by her next friend

Olivia Villarruel; JERRICA WEBB;

TANISHA WEST; AMBER WILLIAMS,

by her next friend Carlette King-

Williams; RICARDO ZAZUETA,

Plaintiffs-Appellants,



COALITION TO DEFEND v. BROWN 3555

v. 

EDMUND G. BROWN, Jr., in his

official capacity as Governor of

the State of California; MARK

YUDOF, in his official capacity as

President of the University of No. 11-15100

California,

Defendants-Appellees,

 D.C. No.

3:10-cv-00641-SC

and

WARD CONNERLY; AMERICAN CIVIL

RIGHTS FOUNDATION,

Defendants-Intervenors -

Appellees.



COALITION TO DEFEND AFFIRMATIVE 

ACTION; INTEGRATION AND

IMMIGRANT RIGHTS AND FIGHT FOR

EQUALITY BY ANY MEANS

NECESSARY, (BAMN); DEFEND

AFFIRMATIVE ACTION PARTY,

(DAAP); ISSAMAR CAMACHO;

JEREMY BAMIDELE; MARIA BELMAN; 

JONATHAN BROOKS; CHRISTIAN IVAN

BURGOS; MAYRA CASILLAS; BIANCA

CENTENO; CALVIN JEVON COCHRAN;

ADAN DE LA CRUZ, by his next

friend Luis De La Cruz; OMAR

SERAG ELDIN, by his next friend

Gamil Serag Eldin;



3556 COALITION TO DEFEND v. BROWN

JOSE FLORES; MICHELLE FLORES, by 

her next friend Victoria Barranco;

JENESIS FONSECA, by her next

friend Angelica Ledezma;

GABRIELA GALICIA; ILIANA

GALLAGA; JOSE GARCIA; MIYUKI

GOMEZ, by her next friend Rosa

Maria Gomez; PATRICIA GONZALEZ;

ANTHONY KEOKI GRACIA; RABIAH

HARRISON; ROSE ANITA HERNANDEZ;

ZAIRA HERNANDEZ; DANIEL DE

JESUS HERRERA; BRENDA IGLESIAS;

JESSICA JIMENEZ; SARAH KIM;

DOMINIQUE LOFGREN; ANTONIO

LOVE; NAYELI A. MARAVILLAS, by 

her next friend Martin Maravillas;

GABRIELA MARTINEZ, by her next

friend Dora Martinez; JAVIER

MEZA; GLADYS MORALES, by her

next friend Rocio Morales; JALIMA

MORALES; AISLYN T. NAMANGA;

HAN KYUL NOH, by his next friend

Lucia Noh; NICHOLAS OGBUEHI;

AURIA PEREZ; MARIA ELENA

POLANCO, by her next friend Adela

Santibana; JAPHINMA POWER;

MERARI RAMIREZ; NANCY J.

RODRIGUEZ, by her next friend

Lucia Castillo; AARON SAMPSON;



COALITION TO DEFEND v. BROWN 3557

ANDREW SANCHEZ; DOMINIQUE 

SHORT-THOMAS; ALEJANDRA SOLIS,

by her next friend Rosa

Desormaux; DESIREE TIENTURIER;

JASMINE TOVAR, by her next friend

Luz Tovar; BRENDA TRUJILLO; JOSE

ROBERTO VALENZUELA; RUBY

VILLARRUEL, by her next friend

Olivia Villarruel; JERRICA WEBB;

TANISHA WEST; AMBER WILLIAMS,

by her next friend Carlette King-

Williams; RICARDO ZAZUETA,

No. 11-15241

Plaintiffs-Appellees,

v.  D.C. No.

3:10-cv-00641-SC

EDMUND G. BROWN, Jr., in his

OPINION

official capacity as Governor of

the State of California,

Defendant,

MARK YUDOF, in his official

capacity as President of the

University of California,

Defendant-Appellant,

and

WARD CONNERLY; AMERICAN CIVIL

RIGHTS FOUNDATION,

Defendants-Intervenors.



Appeal from the United States District Court

for the Northern District of California

Samuel Conti, Senior District Judge, Presiding

Argued and Submitted

February 13, 2012—San Francisco, California

3558 COALITION TO DEFEND v. BROWN

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. BROWN

COUNSEL

George B. Washington (argued), Shanta Driver (argued),

Detroit, Michigan, and Ronald Cruz, Oakland, California,

Scheff, Washington & Driver, P.C., for the plaintiffs-

appellants.

Antonette B. Cordero (argued), Office of the California Attor-

ney General, Los Angeles, California, and Andrew W. Stroud

and Margaret C. Toledo, Mennemeier, Glassman & Stroud

LLP, Sacramento, California, for defendant-appellee Gover-

nor 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 Jurispru-

dence and California Association of Scholars.

James S. Detamore, Mountain States Legal Foundation, Lake-

wood, Colorado, for amici curiae Mountain States Legal

Foundation and Center for Equal Opportunity.

COALITION TO DEFEND v. BROWN 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, Phoe-

nix, 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 Com-

mittee of Law Professors and Historians.

Winifred V. Kao, Asian Law Caucus, San Francisco, Califor-

nia, 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 Consti-

tution violates the Equal Protection Clause of the Fourteenth

Amendment and causes the unfair exclusion of African Amer-

ican, Latino, and Native American students from higher edu-

cation. 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 Proce-

dure 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 pre-

cluded 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. BROWN

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 Universi-

ty’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 increas-

ing 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 uni-

versity system, including the University of Califor-

nia, 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. BROWN 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 like-

lihood 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 indi-

viduals 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 individ-

uals as equals . . . [but] place[s] special burdens on the ability

of minority groups to achieve beneficial legislation.” Wash-

ington v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 467 (1982)

(citation and quotation marks omitted). Applying this analy-

sis, 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 prohib-

ited 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 consid-

ering race or sex in student admissions. The year after section

3564 COALITION TO DEFEND v. BROWN

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 con-

ventional and political-structure equal protection analyses.

Defendants U.C. Regents, then-Governor Arnold Schwar-

zenegger, and Yudof moved to dismiss the complaint, assert-

ing (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 Associ-

ation 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 suffi-

ciently 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 constitu-

tionality 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. BROWN 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 “re-

view de novo a district court’s order granting a motion to dis-

miss 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 dis-

trict 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 viola-

tions 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. BROWN

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 improp-

erly 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 commission-

ers 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 Consti-

tution, the Nevada Supreme Court adopted judicial rules that

required confidentiality, and that allowed it to hold in con-

tempt those who breached confidentiality. Id. We held that the

commissioners were immune from suit because the commis-

sion had no power of contempt and could not amend the judi-

cial 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 commis-

sioners 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 sub-

sequent elections for those positions. Id. The statute was

COALITION TO DEFEND v. BROWN 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 analy-

sis” 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 cre-

ated 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. BROWN

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 constitution-

al.” 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 recon-

sider 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 find-

ings 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 find-

ings regarding the effects section 31 would have on higher

education and expressly found that the number of African

COALITION TO DEFEND v. BROWN 3569

American and Native American students across the University

would fall by as much as 50%. 946 F. Supp. at 1497. This fac-

tual 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 Grut-

ter 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 admis-

sion policies. Wilson II and Grutter, however, are easily rec-

onciled.

Grutter upheld as permissible certain race-based affirma-

tive 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 “race-

neutral alternatives” to racial preferences used by

“Universities in California, Florida, and Washington

State, where racial preferences are prohibited by

1

The Supreme Court appears poised to reconsider whether race-based

affirmative action programs are even permissible at all. On February 21,

2012, the Court granted certiorari in Fisher v. University of Texas, No. 11-

345, 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. BROWN

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 race-

neutral alternatives as they develop.” Id. This discus-

sion 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 cir-

cuit, 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 Plain-

tiffs’ 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, how-

ever, 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 majori-

ty’s conclusion that the district court correctly denied Elev-

COALITION TO DEFEND v. BROWN 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 provi-

sions of the California Constitution expressly charge the Gov-

ernor 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 responsi-

ble 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 collat-

eral, and of no consequence” that Commission members

applied the rules and engaged in “ministerial, administrative

1

Proposition 209, upon its approval by the California electorate, became

Cal. Const. art I, § 31 (hereinafter “§ 31”).

2

In certain circumstances, private litigants may also bring suit to enforce

§ 31. See Cal. Const. art. I, § 31(g) (“The remedies available for violations

of this section shall be the same . . . as are otherwise available for viola-

tions of then-existing California antidiscrimination law.”).

3572 COALITION TO DEFEND v. BROWN

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 dis-

agree 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 conclu-

sory 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) (not-

ing that the Regents “as a constitutionally created arm of the

state have virtual autonomy in self-governance” (internal quo-

tation marks and citation omitted). Recognizing this, the dis-

trict 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 Amend-

ment 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. BROWN 3573

denial of Eleventh Amendment immunity to defendant Yudof.

I therefore respectfully dissent from Part III.A of the majority

opinion.