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A divided Florida Supreme Court ruled Thursday that the NAACP has legal standing to challenge rules established by Gov. Jeb Bush eliminating affirmative action admission policies at state universities. The 4-3 ruling sends the case back to the state’s 1st District Court of Appeal, which had said the NAACP lacked standing. The NAACP had contested Bush’s proposed Talented 20 admissions program, which was part of his One Florida initiative in 2000 to eliminate affirmative action admissions policies. Under the Talented 20 program, state universities were required to admit the top 20 percent of each year’s applicants to each state school, as an alternative to race- and ethnicity-conscious admissions policies. An administrative law judge rejected most of the NAACP case, which then went up to the appellate court. In 2002, the 1st DCA ruled 2-1 that the NAACP lacked standing to challenge the rule. The appellate panel said the group failed to show how the individual plaintiffs or any NAACP members would suffer “a real and sufficiently immediate injury in fact” because of the rules. The court, however, certified the case as a matter of great public importance, paving the way for the Supreme Court to hear it. But on Thursday, the Supreme Court, which heard oral arguments in June, ruled that the appellate court misinterpreted the case law on standing. “We find � a substantial number of the association’s members were both prospective applicants to the State University System and were minorities that would obviously be affected by any change in policy concerning minority admissions,” Chief Justice Harry Lee Anstead wrote for the majority in NAACP v. Florida Board of Regents. An NAACP attorney said the decision re-establishes the rights of nonprofit groups to challenge proposed state administrative rules without having to wait for the harmful consequences of the rules to be manifested. Many nonprofits filed friend of the court briefs supporting the NAACP. “I had not seen a case like this where essentially the NAACP was essentially kicked out of court where it was challenging educational policy,” said Daniel Thompson, a shareholder at Berger Singerman in Tallahassee. “It would have set a very bad precedent for the ability of the NAACP to be a part of the dialog on consideration of race in educational policy decision-making.” Thompson argued the case with his firm’s chairman, Mitchell W. Berger. Gov. Bush’s press secretary, Alia Faraj, said the governor’s legal office was still reviewing the opinion. But Faraj contended that the governor’s One Florida education initiative has succeeded in increasing university enrollment, especially among minority students. “We have worked hard over the last four years to reach out to and open the door for underserved students in our state, and we are seeing solid results in our universities,” Faraj said. “This year more than 37 percent of college freshmen enrolled in Florida universities are minorities. This is a higher percentage than at any time since we began tracking this figure.” In the initial challenge in 2000, the NAACP and two of its members, Mattie Garvin and her son Keith, contested the proposed program rules when Keith was in 10th grade. They claimed that the Florida Board of Regents, which oversees the state universities, exceeded its legal authority in adopting the rules. The NAACP argued that the board didn’t have authority to tell individual universities that they had to eliminate their affirmative action programs. But the Board of Regents and Board of Education convinced the 1st DCA to dismiss the NAACP’s and Garvins’ lawsuit on the basis of lack of standing. On Thursday, however, Chief Justice Anstead, with the concurrence of Justices Barbara J. Pariente, R. Fred Lewis and Peggy A. Quince, found the appellate decision to be too narrow a reading of the case law that governs association standing. The dissenting justices, Charles T. Wells, Raoul G. Cantero III and Kenneth B. Bell, found fault with the majority view on the grounds that the NAACP’s challenge was made moot by a constitutional amendment approved by Florida voters last November. That amendment established a Statewide Board of Governors with authority over the entire state university system, replacing the Board of Regents. But the majority argued that the key issue of law in the case remained a matter of public importance that could affect future cases — whether or not the underlying cause of action had been rendered moot. Therefore, the majority said, it was appropriate for the court to rule on the issue of standing. Thompson applauded the ruling. “For people who want to fight government for any reason, whether a nonprofit or big business or anything in between, this ruling helps give citizens a better opportunity to be heard,” he said. Now the NAACP still must convince the 1st DCA that the case is not moot, as well as argue on the merits of the administrative law judge’s original opinion. Still, the NAACP saw the Supreme Court ruling as an important victory. “It certainly vindicates the NAACP’s position as a civil rights organization that it does have standing to challenge Florida education policy on behalf of its members,” said Dennis Courtland Hayes, the NAACP’s Baltimore-based general counsel. “It’s important not just for the NAACP, but for any advocacy group, from parents-teachers groups to community activist groups to tenant organizations to environmental groups. It is fundamental that they be able to challenge government actions and conduct.” Among the nonprofit groups that backed the NAACP were AARP, the AFL-CIO, the Sierra Club, the Florida Wildlife Federation and the National Organization for Women. Elliott B. Kula, a shareholder at Greenberg Traurig in Miami, was among the attorneys representing those groups. “We urged the court to reaffirm the opportunities for public participation in the rulemaking process of state agencies,” Kula said. “That was the Legislature’s intent.”

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