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.