# Coalition to Defend Affirmative Action v. Brown

> Court of Appeals for the Ninth Circuit · April 2, 2012 · 674 F.3d 1128

URL: https://www.frixlaw.com/law-library/cases/9843115

## Case

- **Full name:** COALITION TO DEFEND AFFIRMATIVE ACTION; Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, (BAMN); Defend Affirmative Action Party, (DAAP); Issamar Camacho; Jeremy Bamidele; Maria Belman; Jonathan Brooks; Christian Ivan Burgos; Mayra Casillas; Bianca Centeno; Calvin Jevon Cochran; Adan De La Cruz, by His Next Friend Luis De La Cruz; Omar Serag Eldin, by His Next Friend Gamil Serag Eldin; Jose Flores; Michelle Flores, by Her Next Friend Victoria Barranco; Jenesis Fonseca, by Her Next Friend Angelica Ledezma; Gabriela Galicia; Iliana Gallaga; Jose Garcia; Miyuki Gomez, by Her Next Friend Rosa Maria Gomez; Patricia Gonzalez; Anthony Keoki Gracia; Rabiah Harrison; Rose Anita Hernandez; Zaira Hernandez; Daniel De Jesus Herrera; Brenda Iglesias; Jessica Jimenez; Sarah Kim; Dominique Lofgren; Antonio Love; Nayeli A. Maravillas, by Her Next Friend Martin Maravillas; Gabriela Martinez, by Her Next Friend Dora Martinez; Javier Meza; Gladys Morales, by Her Next Friend Rocio Morales; Jalima Morales; Aislyn T. Namanga; Han Kyul Noh, by His Next Friend Lucia Noh; Nicholas Ogbuehi; Auria Perez; Maria Elena Polanco, by Her Next Friend Adela Santibana; Japhinma Power; Merari Ramirez; Nancy J. Rodriguez, by Her Next Friend Lucia Castillo; Aaron Sampson; Andrew Sanchez; Dominique Short-Thomas; Alejandra Solis, by Her Next Friend Rosa Desormaux; Desiree Tienturier; Jasmine Tovar, by Her Next Friend Luz Tovar; Brenda Trujillo; Jose Roberto Valenzuela; Ruby Villarruel, by Her Next Friend Olivia Villarruel; Jerrica Webb; Tanisha West; Amber Williams, by Her Next Friend Carlette King-Williams; Ricardo Zazueta, Plaintiffs-Appellants, v. Edmund G. BROWN, Jr., in His Official Capacity as Governor of the State of California; Mark Yudof, in His Official Capacity as President of the University of California, Defendants-Appellees, and Ward Connerly; American Civil Rights Foundation, Defendants-Intervenors-Appellees; Coalition to Defend Affirmative Action; Integration and Immigrant Rights and Fight for Equality by Any Means Necessary, (BAMN); Defend Affirmative Action Party, (DAAP); Issamar Camacho; Jeremy Bamidele; Maria Belman; Jonathan Brooks; Christian Ivan Burgos; Mayra Casillas; Bianca Centeno; Calvin Jevon Cochran; Adan De La Cruz, by His Next Friend Luis De La Cruz; Omar Serag Eldin, by His Next Friend Gamil Serag Eldin; Jose Flores; Michelle Flores, by Her Next Friend Victoria Barranco; Jenesis Fonseca, by Her Next Friend Angelica Ledezma; Gabriela Galicia; Iliana Gallaga; Jose Garcia; Miyuki Gomez, by Her Next Friend Rosa Maria Gomez; Patricia Gonzalez; Anthony Keoki Gracia; Rabiah Harrison; Rose Anita Hernandez; Zaira Hernandez; Daniel De Jesus Herrera; Brenda Iglesias; Jessica Jimenez; Sarah Kim; Dominique Lofgren; Antonio Love; Nayeli A. Maravillas, by Her Next Friend Martin Maravillas; Gabriela Martinez, by Her Next Friend Dora Martinez; Javier Meza; Gladys Morales, by Her Next Friend Rocio Morales; Jalima Morales; Aislyn T. Namanga; Han Kyul Noh, by His Next Friend Lucia Noh; Nicholas Ogbuehi; Auria Perez; Maria Elena Polanco, by Her Next Friend Adela Santibana; Japhinma Power; Merari Ramirez; Nancy J. Rodriguez, by Her Next Friend Lucia Castillo; Aaron Sampson; Andrew Sanchez; Dominique Short-Thomas; Alejandra Solis, by Her Next Friend Rosa Desormaux; Desiree Tienturier; Jasmine Tovar, by Her Next Friend Luz Tovar; Brenda Trujillo; Jose Roberto Valenzuela; Ruby Villarruel, by Her Next Friend Olivia Villarruel; Jerrica Webb; Tanisha West; Amber Williams, by Her Next Friend Carlette King-Williams; Ricardo Zazueta, Plaintiffs-Appellees, v. Edmund G. Brown, Jr., in His Official Capacity as Governor of the State of California, Defendant, Mark Yudof, in His Official Capacity as President of the University of California, Defendant-Appellant, and Ward Connerly; American Civil Rights Foundation, Defendants-Intervenors
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** April 2, 2012
- **Citations:** 674 F.3d 1128; 279 Educ. L. Rep. 66
- **Precedential status:** Published
- **Opinion:** Concurring in part by Tashima
- **Judges:** Tashima, Silverman, Garbis
- **Cited by:** 93 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9843115

## How later opinions describe it (automated extraction)

- holding that the head of the University 19 of California had an adequate connection to an allegedly unconstitutional university admissions 20 rule
- holding that university official had a “fairly direct” connection to enforcing university policies
- affirming the denial of Eleventh Amendment to the President of the University of California because he was “duty-bound” to enforce the challenged statute, which precluded “using race as a criterion in admission decisions”

## Opinion text

TASHIMA, Circuit Judge,
specially concurring in part and dissenting in pari:
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 Eleventh Amendment immunity to defendant Mark Yudof, as President of the University of California. Maj. Op. at 1134-35. 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, *1137 157 , 28 S.Ct. 441 , 52 L.Ed. 714 (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 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 1135. 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., 35 Cal.4th 311 , 25 Cal.Rptr.3d 320 , 106 P.3d 976 (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 denial *1138 of Eleventh Amendment immunity to defendant Yudof. I therefore respectfully dissent from Part III.A of the majority opinion.
Proposition 209, upon its approval by the California electorate, became Cal. Const. art. I, § 31 (hereinafter "§ 31”).
. In certain circumstances, private litigants may also bring suit to enforce § 31. See Cal. Const. art. I, § 31(g) (“The remedies available for violations of this section shall be the same ... as are otherwise available for violations of then-existing California antidiscrimination law.”).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9843115. Public record. Not legal advice.