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UC, others file briefs in Supreme Court affirmative action case

Although the upcoming Supreme Court case on the University of Texas’ race-conscious admissions policy will be largely irrelevant in the Golden State, the University of California and others have filed briefs to emphasize that if the nation goes the way of California, then diversity – and the educational benefits that come with it – will suffer.

The UC president and chancellors, the state of California, the California Institute of Technology and a group of student organizations at UC campuses are among at least 69 organizations that have filed amicus – or friend of the court – briefs in support of the University of Texas at Austin.

At least 15 groups filed amicus briefs in support of Abigail Fisher, who filed the original lawsuit against University of Texas after she was denied undergraduate admission in 2008.

The University of Texas admits the bulk of its undergraduates through a state law that guarantees the top 10 percent of graduates at each Texas high school a spot in a state university. In 2008, when Fisher applied, 81 percent of in-state students enrolled were admitted under the 10 percent law. Fisher did not make that cut.

 

The university admits the remaining students through a review process that considers race as one of several factors that contribute to a student’s personal achievement score. Fisher was denied admission under that review.

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Despite state law, many school boards not budging on elections

Dozens of school boards in the Central Valley are changing their election systems in response to a state law aimed at increasing minority representation, but much of the rest of the state hasn't budged.

Some county boards of education have aggressively pushed for change, spurred on by expensive lawsuits targeting school districts. Other counties haven't made the issue a top priority, have faced resistance from local school boards or have given advice to school districts that some say could leave them vulnerable to lawsuits.

Under the California Voting Rights Act, local governments can't hold at-large elections – in which the entire community votes for all elected positions – if that system weakens the ability of minorities to elect candidates of their choice. Lawyers can prove a violation under the 2002 law by showing that voting is polarized along racial lines. School boards can avoid liability by changing to trustee-area elections, in which each trustee is elected by a different region of the school district.

 

The civil rights lawyers who crafted the law started off suing governments in the Central Valley, sparking a domino effect in the region. Since 2009, 70 school boards have applied with the state Board of Education to switch to trustee-area elections, most of them just this year and most of them in counties like Fresno, Kings, Madera and Tulare. School boards can either put the change to a vote or ask for a waiver from the state Board of Education.

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White-dominated boards face legal threats over racial makeup

A burgeoning onslaught of legal threats under the California Voting Rights Act could upend the racial makeup of elected bodies throughout the state.

Courtesy comptoncity.orgJanna Zurita

Compton City Councilwoman Janna Zurita owes her Hispanic last name to a grandmother from Spain, whom she never met. Zurita considers her mother black and said her father “wants to be black” even though he “looks Latino.” 

Zurita, the mayor pro tem of Compton, sometimes jokes with her sister about their racial roots.

“She always tells me I look just like a Mexican: flat booty, straight hair. You know, just all kind of – how Mexicans used to look. You know, now they have big booties,” Zurita said in a legal deposition in November. “You know, little jokes about it.”

While Zurita takes a sometimes-playful approach to her racial identity, it became the serious subject of a recent lawsuit under the California Voting Rights Act. In January, a judge ruled that a trial would be necessary to figure out whether Zurita could be considered Latina and whether that means Latinos have a voice on the council. The city settled the suit late last month.

 

The legal gymnastics in Compton illustrate California’s far-reaching law, which bars local governments from diluting the voting strength of minorities. The law has become the foundation of a burgeoning onslaught of legal threats that could upend the racial makeup of elected bodies throughout the state.

Armed with 2010 census data, a network of attorneys is increasingly targeting local governments – from cities and school boards to hospital and community college districts – for not reflecting the demographics of their constituents. 

While the dispute in Compton, where Zurita’s race was under question, pitted Latino residents against the city’s traditionally black leadership, other cases seek to increase minority representation on elected boards that are dominated by whites.

“We’re seeing the fastest change in how California organizes local government since the Progressives of the early 20th century,” said Douglas Johnson of the Rose Institute of State and Local Government at Claremont McKenna College, who has been critical of the law. “The law is extremely expansive. Every local government in California should be looking into this.”

Particularly striking against this backdrop are the 13 cities in California where all-white councils preside over communities where either Latinos or Asians make up the majority of residents. Several are clustered in the Los Angeles area, like Whittier and Arcadia, but they range from Tulelake, on the Oregon border, to Holtville, near the Mexican border.**

Another 21 cities have Latino majorities and only one minority on city council.

Such cities can make especially attractive targets for civil rights lawyers, who see the stark disparities as evidence of a systemic problem.

“These are the cities that should recognize that they are low-hanging fruit for groups who might want to bring lawsuits,” said Paul Mitchell of Redistricting Partners, a Sacramento-based consulting firm that works with local governments to determine their vulnerability under the law.

Carlos Puma/California WatchPhotos of Montclair City Council members line the wall of the board chambers.

California Watch was able to identify the 34 cities with data from Redistricting Partners and another consulting group, GrassrootsLab. But the cities represent one end of a spectrum. Numerous other communities, with smaller minority populations or more diversity on the city council, also could be subject to a suit under the California Voting Rights Act, which was passed in 2002 and signed by Gov. Gray Davis.

The law prohibits local governments from holding at-large elections – in which the entire community votes for a slate of candidates – if that system weakens the ability of minorities to elect candidates of their choice. 

An elected board can be found in violation if voting statistics show the community polarized along racial lines. That happens, for example, when Latinos vote more than their white neighbors for Latino candidates. 

Cities, school districts and other elected boards that violate the act can be forced to divide their communities with district elections, in which different areas elect their own representatives. That way, districts with a high concentration of minorities could more easily elect one of their own.

A law so rooted in race inevitably leads to thorny questions about racial politics and the murky, subjective cauldron of ethnic identity. Should the race of a city councilmember even matter? And, in a state where the lines are increasingly blurred, who can determine a councilmember’s race other than the council member?

In Compton, lawyers representing two Latina residents argued that Zurita is not Latina. Zurita, on the other hand, pointed to her election as evidence that Latinos are represented. But even she seemed conflicted during her deposition, at one point saying that she is Latina, at another point that she isn’t.

Asked point-blank by an opposing lawyer, Zurita replied, “I don’t think there is any pure races.”

The brouhaha over Zurita’s race “raises an issue that I believe is silent in the legislation, which is, how are you calculating ethnicity?” said Compton City Attorney Craig J. Cornwell. “Is it people who have Latino ancestry? Is it how a person self-identifies themselves?"

The U.S. Census doesn’t provide clear answers, because it considers being Hispanic or Latino separate from race. On government forms, Zurita sometimes marks black, sometimes “other” and couldn’t remember if she ever marked Latino.

Adding to the confusion, Zurita later referred to her Spanish grandmother as Mexican. The attorney sought to clarify: “So she was from Spain, but her heritage was Mexican?” 

“Well,” Zurita replied, “you know, I don't know. All this Mexican, third generation, fourth generation, Latina, Latino – I just kind of refer to the group as Mexican.”

Regardless, Zurita maintained that she represents all residents of Compton, where 65 percent of the population is Hispanic.

“I don't even think race, you know,” she said. “I don't look at race.”

In a settlement last month, Compton agreed to let voters decide whether to change to district elections. If voters shoot it down on the June ballot, the city will put it to another vote in November. Compton also agreed to pay the opposing attorneys’ fees. 

At-large elections challenged

California’s law is grounded in the idea that minorities sometimes vote differently from the rest of the population and that at-large elections, where the majority rules, can unfairly dilute their influence. The U.S. Supreme Court has upheld that underlying notion in cases interpreting the federal Voting Rights Act.

Indeed, in many parts of the state, including throughout Los Angeles County, Californians do tend to vote for candidates of their same race, according to research by Matt Barreto, who served as an independent expert to the state redistricting commission. Barreto also consults for lawyers suing under the law.

The California law makes it much easier to challenge at-large elections than under the federal Voting Rights Act. Plus, the state law puts local governments at a disadvantage: If they lose a lawsuit, they have to pay the other side’s attorney’s fees, but not the other way around. 

The act was drafted by Joaquin Avila, a Seattle-based voting rights attorney, and Robert Rubin, who until recently was legal director of the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. The duo has gone on to sue school districts and cities, racking up millions of dollars and sparking accusations that they are in it for the money. 

Rubin, now in private practice, said the money from his share of legal settlements went to the nonprofit civil rights organization where he worked. He said governments saddled with huge legal costs have only themselves to blame for not following the law. 

“We’re going to continue to be aggressive,” Rubin said. “We intend to enforce this until it doesn’t need enforcement anymore.”

Legal threats quicken

A series of court victories and settlements has created a ripple effect in which many school districts are switching to district elections voluntarily rather than face expensive lawsuits. Since 2009, nearly 70 school boards applied with the state Board of Education to make the switch, the majority of them just this year.

At the same time, lawyers have ratcheted up their legal threats in the last two years, shooting off letters to cities such as Visalia, Santa Clara, West Covina and Whittier.

In 2010, law co-authors Rubin and Avila sued the Central Valley city of Tulare. 

The suit argued that even though Tulare then had a Latino councilman, he wasn’t the “candidate of choice of Latino voters.” Another councilman, David Macedo, said in an interview that he identifies as Hispanic because of his Portuguese ancestry, but doesn’t consider himself Latino.

Tulare settled for $225,000, which went to the plaintiff’s lawyers, and will hold a vote this year on switching to district elections. Macedo said he would encourage residents to approve the switch because, given the law, “one way or another, that’s the way it’s headed.” 

Rubin, Avila and affiliated attorneys have directed the legal offensive so far. But labor unions and other groups also could use the law as a weapon in disputes with cities and school boards.

The first such case came in December, when the State Building & Construction Trades Council of California sued the city of Escondido, in San Diego County, alleging that at-large elections leave Latinos without fair representation. The union targeted Escondido because officials there have been trying to lower wages on public construction projects. 

Cities push back

Some cities aren’t giving in easily. 

An attorney for the city of Whittier fired back with a letter to Avila saying it was not violating minorities’ rights. She noted that many “prominent” Latinos had endorsed white council members.

Victor Lopez, who died in 2002, was the only Latino elected to the Whittier City Council and has a school auditorium named for him. His son, Doug, was later appointed to serve out another term. Others have run and lost, but Doug Lopez isn’t troubled.

“If a Hispanic ran who was very competent and qualified, they’d run away with it,” said Lopez, now a real estate developer in San Luis Obispo. “Do you need minority representation? I don’t think so. You just need good representation.”

Carlos Puma/California WatchRetired engineer Jose Maldonado ran for the Montclair City Council in 2010 but lost to two white incumbents.

In nearby Montclair, an Inland Empire city known for its shopping plaza, the Latino population grew from 60 percent to 70 percent over the last decade. Retired engineer Jose Maldonado ran for city council in 2010 because he was upset with how the police treated Latinos. He thought there should be a Latino voice on the council. 

“We Latinos,” he said in an interview, “we think different.”

Maldonado came within a few hundred votes, but lost to two white incumbents. One of them has served on the council since 1978. Maldonado likes the idea of district elections. He attributes his loss to a lack of resources in challenging an entrenched power structure. 

“You can’t go against the establishment,” he said.

Before that, in 2004, conservative activist Ben Lopez tried to win a seat in the small suburb. Lopez said council incumbents recruited another Latino candidate in order to “split the Latin vote.” 

But the other Latino candidate, Manny Martinez, said he was recruited by council members who simply wanted another alternative to Lopez on the ballot. In the end, Lopez and Martinez both lost. Martinez said it wasn’t about race.

“It’s just a matter of the right candidate at the right time,” said Martinez, who was appointed to a city council advisory committee. “There doesn’t seem to be any old boys network preventing Latinos from getting elected.”

Martinez said current Councilman J. John Dutrey has a Spanish background. Dutrey goes by John, but his name is listed on ballots as Javier “John” Dutrey. 

Political participation

Carlos Puma/California WatchThe Montclair City Council does not include a minority representative, though Latinos make up about 70 percent of the population.

Some residents in Latino or Asian communities are immigrants who can’t legally vote. Others lack a strong culture of voting, say some aspiring candidates.

Cities have tried to blame low turnout among minorities for their lack of representation. 

“I think you will agree with me that if people do not vote, that speaks volumes about their desire to elect a particular candidate,” an attorney for the city of Visalia wrote to Rubin, the civil rights attorney.

Rubin dismissed the argument, blaming a history of discrimination for discouraging political participation. Visalia recently decided to put a change to district elections on the November ballot.

Mayor Jerry Brittsan of Holtville, where 82 percent of the 5,939 residents are Hispanic, said Latinos “just refuse to participate.” The city, in Imperial County, sits 10 miles north of Mexico.

“The Mexicans in this area – this is a border town – they just don’t trust whites,” Brittsan said. “They don’t trust authority. The only people they do trust are the firemen.”

Bianca Padilla Legaspi, who won a seat on the Holtville council in 2006, disagreed. Young and campaigning in two languages, she was an unusual candidate for Holtville, but “people really responded to it,” she said. Latinos don’t tend to run for office there, she said, because many have low income and education levels and don’t feel qualified.

In some cities with all-white councils, minority candidates have won in past elections – but not recently.

In Arcadia, for example, Asians served on the city council since 1994. Arcadia and neighboring cities in the San Gabriel Valley have an especially strong concentration of Asian, and particularly Chinese American, residents. 

 

In the 2010 council election, three Asians and three whites competed for three council seats. The campaign seemed to inflame racial tensions. 

Attorney Jason Lee announced he was running in part “because the Asian Americans are underrepresented in the City Council of Arcadia.” 

In the end, all three Asians lost, leaving the council all white. 

Asians have to work harder to get elected in Arcadia, but it’s not impossible, said John Wuo, who served two terms and is running again. Wuo said he would oppose a change to district elections.

“I think that’s a bad way to do it, because you basically try to segregate,” Wuo said. “If you divide into districts, then you have fighting among the districts.”

Boosting minority representation isn’t a guaranteed outcome of district elections.

After civil rights lawyers sued Modesto in 2004, the city ended up paying a $3 million settlement and changing to district elections. But the racial makeup of the council is the same as it was before the switch. 

David Geer, who is white, thought he had no chance to win in Modesto’s District 2, which he said was designed to elect a Latino. But Geer beat the Latino candidate and now believes the system worked to give a neglected neighborhood a voice.

“It’s nice to have someone who represents an area that has been historically unrepresented,” Geer said. “For decades, no one who served on the city council lived in District 2 because it’s on the wrong side of the tracks.”

**A previous version of this story listed 14 cities with all-white city councils and 20 with a single Latino member in Latino-majority communities.

This story was edited by Robert Salladay and copy edited by Nikki Frick.

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