California Consequences: What If High Court Bans Race Preferences in College Admissions?

By Stacy Finz

Almost lost amid the recent flurry of marquee U.S. Supreme Court rulings—including one endorsing same-sex marriage and another upholding Obamacare—was a judicial move that could have a huge impact on who gets into top colleges. The justices, by opting to reconsider a case that challenges the University of Texas’s use of race and ethnicity to select students, signaled that they may be ready to effectively end affirmative action in college admissions nationwide.

To do so would be to follow California’s example: Nearly two decades ago, voter-approved Prop. 209 made it the first of a handful of states to explicitly bar public universities from considering any applicant’s race or ethnicity in admissions.

That clarifies how Texas wound up with a more “progressive” university admissions policy than California. It helps account for the fact that at UC Berkeley, proportional black and Latino enrollment dropped. And it explains why Cal students such as Miguel Mauricio and Cori McGowens—who say they unfortunately know what it’s like to attend a school where their ethnicity is underrepresented—are keeping a wary eye on the pending Texas case.

At first glance, it might seem that California, given its existing affirmative action ban, would be unaffected regardless of what the court decides in Fisher v. University of Texas-Austin. But not so fast.

California continues to wrestle with the fallout from Prop. 209, which prohibits preferential treatment to any applicant on the basis of race, sex, skin color, ethnicity or national origin. Given the toll 209 has taken on diversity, there are regular attempts to repeal it. Last year, a proposed constitutional amendment to do just that sailed through the state Senate. But foes swiftly mobilized to torpedo it in the Assembly, some even labeling it “the most racist bill in California history” for aiming to reintroduce race and ethnicity as factors in admissions. And although the traditional adversaries of affirmative action are white conservatives, the loudest opposition in this case came from Asian Americans, whose representation on UC campuses has flourished since Prop. 209.

If the Supreme Court uses the Texas case to abolish affirmative action nationwide, many experts say it would likely halt such efforts and set Prop. 209 in stone. But a ruling the other way could accelerate efforts to repeal it in favor of an approach similar to that used in Texas, where race and ethnicity are among a variety of factors considered in a holistic evaluation of each UT applicant.

Many who have watched the Fisher case wend its way through the courts over the past seven years are betting that the Supreme Court is poised to declare such affirmative action unconstitutional. Why else, they ask, would the justices have agreed to take up this case for a second time?

The case in question began in 2008, when Abigail Fisher unsuccessfully sued UT Austin, alleging that she’d been denied admission because she was white. After losing at various stages, she appealed her way up to the Supreme Court in 2013. In a 7-1 decision, the Supremes sent it back to the Fifth Circuit Court of Appeals for “more exacting scrutiny.” The Fifth Circuit judges held firm in favor of the university. Court observers conclude that the Supreme Court’s most conservative members voted to grant another review in the hope that Justice Anthony Kennedy would join their ranks and ban Texas from using race in its admissions policy. Kennedy has never voted to uphold an affirmative action program.

But legal scholars warn that predicting the court’s decision is a risky business.

“It is very difficult to read the tea leaves,” says William Powers Jr., who was president of the University of Texas at Austin when the suit was filed, and is now a law professor there. Powers, a UC Berkeley grad and the Cal Alumni Association’s 2014 Alumnus of the Year, suggests the court may simply want to clarify some of the language.

“My position has always been that it is important that we continue to diversify higher education,” he says.

The Supreme Court’s 2003 Grutter v. Bollinger gave state universities the right to take race into consideration in pursuing greater academic diversity—they just can’t use a point system to do it.

In Texas, public high school students in the top 10 percent of their class automatically get accepted to UT Austin, a program that Fisher’s lawyers contend ensures diversity. UT argues that the “Top Ten Percent” program is not sufficient to do so.

UT’s current president, Greg Fenves, a Cal alum who served as chair of Berkeley’s Department of Civil and Environmental Engineering from 2002 to 2007, declined to comment because the university is still working on its legal filings. “Under the Supreme Court’s existing precedent,” he recently wrote, “the university’s commitment to using race as one factor in an individualized, holistic admissions policy allows us to assemble a student body that brings with it the educational benefits of diversity for all students. Our admissions policy is narrowly-tailored, constitutional and has been upheld by the courts multiple times.”

The University of California filed an amicus brief in support of Texas, earlier in the case’s history. In the 2012 brief, the UC system acknowledged that Prop. 209’s affirmative action ban had produced “an immediate and dramatic adverse effect on the admission and enrollment of underrepresented minority students at the University of California.”

The UC system reported that it had tried several strategies to reverse the decline in underrepresented minority students: expanding outreach to high schools, incorporating a broader set of admissions criteria, decreasing the weight given to standardized tests, and admitting a specified percentage of the top graduates from each high school similar to UT’s “Top Ten Percent” Program.

“To date, however, those measures have enjoyed only limited success,” the brief states. “They have not enabled the University of California fully to reverse the precipitous decline in minority admission and enrollment that followed the enactment of Proposition 209, nor to keep pace with the growing population of underrepresented minorities in the applicant pool of qualified high school graduates.”

After 209 took effect in 1998, freshmen admissions at UC Berkeley for black, Latino and Native American students sank 50 percent. The university’s racial/ethnic breakdown of freshmen admits for 2015 indicates that 48.8 percent are Asian, 30.7 percent are white, 16.5 percent are Latino, 3.4 percent are African American, 0.8 percent are American Indian, and the remaining 4.8 percent are listed as “not given.” Among under-represented minorities, the percentage of admits who actually enroll is often smaller: Last year’s freshman class was only 2.9 percent African American and 13.6 percent Latino.

“We want UC to look somewhat like the state’s population,” says Nina Robinson, associate president and chief policy advisor for the University of California. “All of the credible research points to the idea that it is important to have a mix of other students to study with, live with and learn with.”

Although UC can’t consider race, it can look at broad criteria, such as whether an applicant has overcome being disadvantaged, is the first of his or her family to go to college, or learned English as a second language, says Berkeley Law professor David Oppenheimer. That, he says, would not change regardless of what the court ultimately rules in Fisher. “Some people believe the only thing a college should look at is grades and test scores. But the Supreme Court has never said that, and it would be shocking for it to interfere in that way.”

What Oppenheimer thinks is more likely, if the Supreme Court rules for Texas and sticks by Grutter v. Bollinger, is that the state might take another look at Prop. 209—and ultimately could amend its constitution to abolish it.

If the court strikes down affirmative action entirely? “It would be horrible,” says McGowens, chair of Cal’s Black Student Union and a senior majoring in political science. She wasn’t a Cal student when Proposition 209 was passed, but she says she’s seen its negative effects.

“If there were more blacks on campus we would feel less disenfranchised,” McGowens says. It’s not a coincidence, she notes, that a 2010 UC survey showed more than 40 percent of African Americans attending Berkeley reported feeling disrespected—a percentage that jumped to more than 68 percent at UC San Diego. But UC Riverside, which has the greatest proportional enrollment of black students, showed the opposite effect: 87 percent of its surveyed African American students said they felt respected.

Mauricio, a Cal senior and co-executive director of the Latino Pre-Law Society, says that as a Latino student, he brings a unique perspective to Berkeley. For example: He and his oldest brother are the first in their family to go to college, unlike many of the white students at Cal. Nor was going to a university a given: After high school, his trajectory was to become a steel worker through his junior college. “I was making decent money and was my family’s main bread winner at the time,” he says. When Cal accepted him, he had to make the decision whether he should leave the money behind and go.

“When I tell this story to my fellow students who grew up privileged, they’re appalled,” he says. “To them how could I even consider working at a steel mill when I’m smart enough to get into a school like Cal. Not all of us grew up in homes like Abigail Fisher. The only way the privileged students can know what life is like outside their world is to study alongside someone like me.”

Note: Chart data for UC Berkeley freshmen enrollment was derived from the National Center for Education Statistics and the University of California. Data on college-aged California residents was derived from the Centers for Disease Control until 2011, and then on population projections from the state of California.

Filed under: Law + Policy
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Re last two paragraphs: There are plenty of white steelworkers, and no doubt some Asian ones, too. And there are plenty of blacks and Latinos from “privileged” backgrounds. The point is that you can achieve diversity of personal backgrounds without using skin color and national origin as proxies — what would be called “stereotyping” in any other context, and what is clearly discrimination.

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