Brown

George B. Washington (argued), Shanta Driver (argued), Detroit, MI, and Ronald Cruz, Oakland, CA, Scheff, Washington & Driver, P.C., for the plaintiffs-appellants.

Antonette B. Cordero (argued), Office of the California Attorney General, Los Angeles, CA, and Andrew W. Stroud and Margaret C. Toledo, Mennemeier, Glassman & Stroud LLP, Sacramento, CA, 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, CA, for defendant-cross-appellant Mark Yudof.

Ralph W. Kasarda (argued) and Daniel A. Himebaugh, Pacific Legal Foundation, Sacramento, CA, for intervenors-defendants Ward Connerly and American Civil Rights Foundation.

Anthony T. Caso, Law Office of Anthony T. Caso, Orange, CA, for amici curiae Center for Constitutional Jurisprudence and California Association of Scholars.

James S. Detamore, Mountain States Legal Foundation, Lakewood, CO, for amici curiae Mountain States Legal Foundation and Center for Equal Opportunity.

Michael Rosman, Center for Individual Rights, Washington, D.C., for amicus curaie Center for Individual Rights.

David R. Cole, the Arizona Attorney…

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…

Opinion by Judge SILVERMAN; Partial Concurrence and Partial Dissent by Judge TASHIMA.

OPINION

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 the *1132 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…