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Finally, A Way to Diversify Cal Universities? Or “The Most Racist Bill” in State History?

March 10, 2014
by Ben Christopher
Students taking a test

Shien Biau Woo is a self-professed liberal. As a Democrat, he was lieutenant governor of Delaware and was once the party’s nominee for the U.S.  Senate. The organization he co-founded, the 80-20 Initiative, advocates for equal rights and opportunity for Asian Americans and twice endorsed Barack Obama.

And yet, says Woo: “Some liberals—and I classify myself as a liberal—they’re crazy. They have crazy theories.”

He is referring specifically to liberals like California state Sen.Ed Hernandez, the author a proposed measure that would repeal the statewide ban on affirmative action programs within public college admissions offices. In late January, Hernandez’s Senate Constitutional Amendment 5 was passed by that chamber in a party-line vote (with three abstentions). If it passes the Assembly, it will be placed on this year’s November ballot.

As might be expected of any law pertaining to affirmative action, the political response to SCA 5 has been vociferous. But so far, the most vocal opposition to the proposal has not come from the traditional foes of race-preference laws—that is, white conservatives—but from organizations like the 80-20 Initiative.

“Politicians think that Asian Americans can always be stepped on,” says Woo. “If SCA 5 fails, it’s lucky for (those politicians). If it passes—and I don’t think it will—the Asian Americans will be coming out and voting like crazy.”

Such resistance already is coming fast and furious from certain sectors of the Asian American community. While traditional Democratic allies such as the nurses union, the teachers union, Equality California and the UC Students Association have lined up in support of Hernandez’s bill, the bulk of the opposition has come from organizations such as Chinese Americans for Progress and Equality, the Chinese Alliance for Equality, and the Chinese-American Oceanic and Atmospheric Association. The outrage isn’t just local. Aside from the East Coast-based 80-20 Initiative, heated opinion pieces have been published in China Daily (“California’s new racial discrimination”) and the Bangalore-based business and tech new site SiliconIndia (“SCA 5 – The Most Racist Bill in the History of California”).

A 2013 National Asian American Survey found that affirmative action is still supported within that community by a 3 to 1 margin. Yet the fact that opposition to such programs might itself be much more diverse than it was in 1996 (when Prop 209 blocked the state from “granting preferential treatment to individuals or groups on the basis of race”) should not surprise anyone, says Laura Stoker, a UC Berkeley political science professor who has studied opposition to affirmative action.

“The more highly educated a person is, the more liberal they tend to be with regard to racial equality issue—with the exception of affirmative action,” says Stoker. “With affirmative action, the pattern reverses. It flips.”

The explanation for this is fairly straightforward, she says. Since the passage of Prop 209, the percentage of Asian applicants to campuses within the University of California system has edged up from under 83 to 85 percent, according to a report published by The Campaign for College Opportunity late last year.

But the post-209 admission rates have fallen for Latino applicants (from 82 to 76 percent) and black applicants (from 75 to 58 percent).

Of course, the aggregate “Asian” category conceals a great variability. One recent report found that 74 percent of Taiwanese Americans, 71 percent of Indian Americans and 52 percent of mainland Chinese Americans have attained a bachelor’s degree or higher. It may not be surprising that the organizations rallying against SCA 5 have been Chinese American and Indian American rather than, say, Cambodian American.

“Those who are most highly achieving with respect to higher ed tend not to be supportive of anything that they might worry would undermine their place,” Stoker says. “It might have nothing to do with ethnicity itself, per se, but educational attainment.”

Now that affirmative action has been tossed back into the Californian political fray, the 80-20 Initiative’s Woo predicts it will help mobilize large swaths of the Asian American community. He points to a town hall meeting in Cupertino on March 2, which reportedly drew hundreds of Asian Americans, most strongly opposed to SCA 5—or as some protesters put it, “Skin Color Act 5.”

Like the Tea Party, this wave of grass­roots fury could play in­to the hands of the Re­pub­lic­an Party. Asi­an Amer­ic­ans are of­ten thought of as pre­dict­able Demo­crat­ic al­lies. But they poll as polit­ic­ally ‘un­de­cided’ three times high­er than the av­er­age.

“The Democratic Party truly should be careful,” says Woo, who is now a registered Independent. If SCA 5 makes it to the November ballot, he says, the party “will be taught a lesson.”

“This might indeed snowball into something bigger,” says Karthick Ramakrishnan, a political science professor at UC Riverside and the director of the National Asian American Survey. Up until recently, he explains, most of the political activism in the Asian American community has taken place on the left through groups such as Asian American Advancing Justice, which push for equal access for those in underserved communities. “These civil rights organizations are not as connected to Asian Americans who are wealthier and that leaves a potential opening.”

Ramakrishnan says organizations like the 80-20 Initiative have riled up a great deal of enthusiasm among upwardly mobile Asian Americans, many of whom see access to higher education as a vital stepping stone to economic prosperity and political clout.

“They’re an insurgent group very much like the Tea Party,” he says. “In emphasizing the role of education, they’re speaking to a population that has not been particularly involved or engaged politically, who, generally speaking, feel like education is the ticket upwards, and many of whom are first generation immigrants who have experienced discrimination. And now here come organizations that are shouting: ‘They’re taking away our freedom!’ “

And like the Tea Party, this wave of grassroots fury could play into the hands of the Republican Party. Asian Americans are often thought of as predictable Democratic allies. But that ignores the fact that this demographic polls as politically “undecided” at three times higher than the average. Ramakrishnan says it underscores this population’s “potential flexibility.”

Outrage over SCA 5 has coursed through social media, generating online petitions and Facebook groups and hashtags of dissent. Ramakrishnan points to a letter that recently made the rounds on Twitter: It is ostensibly written by an 8 year old who, under the banner of smiley faces and hearts, tells her Congressman: “I don’t think it’s fair if I can’t go to college in California just because I am Asian American.”

Certain ethnic media outlets have also played a vital role in mobilizing readers over SCA 5, says Ramakrishnan. He points to the SiliconIndia headline, calling SCA 5 “the most racist bill in the history of California.”

UC Berke­ley Law pro­fess­or Jesse Chop­er says even if the state’s af­firm­at­ive ac­tion ban were to be re­pealed, times have changed—and so has the Su­preme Court of the United States.

“With no sense of irony!” he says. “Most of these stories do not provide any critical evaluation for the claims being made by activist groups—that the law will impose racial quotas, that it is unconstitutional. These are both patently false claims.”

Indeed, SCA 5 probably poses little threat to potential Asian American applicants to California’s public universities—primarily because it still faces such a steep uphill battle. Before becoming law, the bill must first to be approved by two-thirds of the Assembly and then by state voters.

Beyond that, says UC Berkeley Law professor Jesse Choper, even if the state’s affirmative action ban were to be repealed, times have changed since 1996—and so has the Supreme Court of the United States.

“There’s a big hurdle now,” he says. Unlike previous courts, which granted institutions a bit more leeway in crafting diversity-boosting programs, the philosophy of this court is clear: “Race based programs are a bad thing and we can only use them in extremis.”

This new legal order was laid out last year with the Fisher v. University of Texas decision, in which the court ruled, 7-1, that while affirmative action programs were permissible, it is the school’s responsibility to prove that “no workable race-neutral alternatives would produce the educational benefits of diversity.” (The 80-20 Initiative filed an amicus brief against the university). And those benefits must be significant. “Merely trying to get something closer to the population at large is not a legitimate reason to increase diversity,” says Choper, paraphrasing the court’s ruling.

That decision was written by Justice Anthony Kennedy, whom Choper calls “the be-all, end-all, for the future of the validity of affirmative action on this court.” And that makes the prospect of California schools reinstituting aggressive affirmative action programs exceedingly dim.

“If 15 percent of the students on campus were Hispanic and you had a program that brought it up to 20 percent, I don’t have much question that Kennedy would say, ‘aw, come on, it’s race based. You’re doing pretty well to begin with. The program doesn’t add much to it,’ ” he says. (In 2012, 13 percent of UC Berkeley’s undergraduate population was Latino.)

For proponents of affirmative action then, says Choper, “it’s tough sledding with this U.S. Supreme Court.”

Even so, as activist groups continue to rally support against SCA 5, the political perception may be more important than the legal reality. Organizations like the 80-20 Initiative were founded to prove that Asian Americans are a political force. The backlash against SCA 5 is making that point loud and clear.

“You might just think this is a California issue, but California accounts for one-third of the national Asian American population, so what happens here is going to have a very strong influence on the national story,” says Ramakrishnan “It’s a constituency that is too important to ignore anymore.”

This story has been updated.

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