From the racial makeup of University of California classrooms to the number of minority contractors working on BART projects, California's 17-year ban on affirmative action programs has indelibly marked the nation's largest state.

But now the debate over whether that experiment has caused more harm than good will take a back seat to a larger national question: Are laws such as California's affirmative-action ban, Proposition 209, unconstitutional, and should be overturned?

On Tuesday, the U.S. Supreme Court will hear arguments in a challenge to Michigan's Proposal 2, a 2006 voter-approved law that mirrored Proposition 209 by barring the use of racial and gender preferences in public programs such as university admissions.

Proposition 209 opponents take a break from a 1996 rally in San Jose.
Proposition 209 opponents take a break from a 1996 rally in San Jose. (Judith Calson, Mercury News archives)

Although the justices specifically are reviewing a federal appeals court ruling invalidating Michigan's law, California's 1996 version is front and center in the case. The 9th U.S. Circuit Court of Appeals in 1997 upheld Proposition 209, as has the California Supreme Court.

All sides in the explosive issue have made it clear that the outcome will decide the fate of Proposition 209. If the high court lets Michigan's law die, it would likely doom California's as well. However, most legal experts predict the conservative Supreme Court is likely to leave the laws intact.

"This obviously is it," said George Washington, a civil rights lawyer who has worked to overturn the California and Michigan laws. "I think we have an uphill battle, but I definitely think we can win."

Ward Connerly, a former UC regent and architect of Proposal 2 and Proposition 209, agrees that the Supreme Court could provide the final word. He says he "shudders to think" what would happen if affirmative action is returned to California.

"You're going to see a reinstitution of racial preferences the likes of which we've never seen," he said.

For Proposition 209's critics, that would not be bad news. California, joined by five other states and the District of Columbia, has urged the Supreme Court to declare Michigan's law unconstitutional, arguing that such laws particularly damage states with diverse populations.

The University of California, which has been perhaps the state agency most affected by Proposition 209, likewise has sided with civil rights organizations.

UC officials note that the year Proposition 209 took effect, the admissions rates for Latino, black and Native American students at UC Berkeley fell by more than 50 percent. Those numbers remain low at UC campuses, particularly at highly selective schools such as Cal and UCLA.

Destiny Iwuma, a student government senator at UC Berkeley, said he was struck as a freshman by how few other black students were on campus. He is hopeful the Michigan case kills Proposition 209, adding that it "is giving students a chance to organize around something."

Other California interests have sided against the Michigan law in the Supreme Court, including a number of high school districts in urban areas such as Berkeley, Oakland and San Francisco, where school officials say Proposition 209 dashes the college hopes of minority students. BART also has jumped in, arguing that Proposition 209 has hampered the agency's ability to hire minority contractors.

 Ward Connerly, who led the fight for Proposition 209, at a 1997 news conference in Sacramento where he introduced the American Civil Rights Institute, to
Ward Connerly, who led the fight for Proposition 209, at a 1997 news conference in Sacramento where he introduced the American Civil Rights Institute, to campaign against race- and gender-based preference (RICH PEDRONCELLI / AP)

But backers of the anti-affirmative action laws say voters approved neutral limits on race and gender preferences in government programs.

"It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the equal protection clause by discriminating on the basis of race and sex," Michigan Attorney General Bill Schuette wrote in court papers defending the law.

California's courts have agreed. The 9th Circuit, a federal appeals court for California and eight other states, has twice rejected challenges to Proposition 209, as has the California Supreme Court, most recently in 2010.

Legal experts say the U.S. Supreme Court's general reluctance to embrace affirmative action could spell trouble for the attack on Michigan's law -- an outcome that would preserve Proposition 209.

In the Michigan case, a federal appeals court found that Proposal 2 effectively thwarted minorities because of the ban on considering race or gender in university admissions when other nonacademic factors, such as alumni connections or community work, could be weighed. The Supreme Court is unlikely to back that conclusion, said Eugene Volokh, a UCLA law professor who considers Proposition 209 constitutional.

"I don't really see the (appeals court's) decision going far with the court," he added.

Vikram Amar, a UC Davis law professor, likewise expects the Supreme Court to side with the Michigan law, although he thinks the arguments for striking it down "are pretty strong."

And if those arguments prevail?

"If the court strikes down Proposal 2, it's almost a sure thing Proposition 209 would go the same way," Amar said.

Staff writer Katy Murphy contributed to this report. Howard Mintz covers legal affairs. Contact him at 408-286-0236. Follow him at Twitter.com/hmintz.