Peter SchragMajor civil rights organizations, supported by briefs from an array of education groups, were in the U.S. Supreme Court this month seeking to overturn Michigan’s Proposal 2 – a clone of California’s Proposition 209 – banning affirmative action in public education, employment and contracting.
Among the challengers’ supporters were the San Francisco and Los Angeles school districts and the president and chancellors of the University of California.
If the Court agrees with them, thus jeopardizing Proposition 209 and laws like it in several other states, they may come to regret it.
Their arguments are reasonable – and in many cases familiar:
That without considering race in their admissions decisions, universities like UC and the University of Michigan, the law’s chief target, can’t achieve the ethnic and social diversity on their campuses that’s essential to their educational objectives and to a healthy society.
That veterans, alumni legacies and others can go to university officials to secure preferential treatment, but African Americans, Latinos and other minorities have no recourse but the costly and difficult route to a state constitutional amendment. That in itself is racial discrimination and thus a violation of the U.S. Constitution.
That absolute prohibitions are simply too rigid and leave universities (and employers) with too little flexibility.
At bottom, however, this case concerns not the constitutionality of affirmative action, but the question – raised during oral arguments by Justice Anthony Kennedy, who could be the swing vote again – of why it’s unconstitutional for voters to ban affirmative action when the regents or the legislature have the right to do the same thing.
Michigan’s Proposal 2, passed by voters in 2006, was in large measure the work of Ward Connerly, the Sacramento businessman and former UC regent who was the chief sponsor of Proposition 209 and several like it in other states. If it’s struck down – unlikely given the court’s conservative leaning – it will jeopardize the laws in other states as well.
That could generate no end of backlash. Among other things, it would further reduce the chances of Congress passing an immigration reform bill legalizing the nation’s 11 million undocumented immigrants. Legalize them, conservatives will argue, and let them immediately get to the front of the line as well?
And given the nation’s rapidly changing political demographics, it could well set off bitter battles in California and other states with Latino pluralities, as legislators press universities to tweak academic standards to achieve ethnic parity on their campuses. In California in 1992, the California legislature even passed a bill, vetoed by Gov. Pete Wilson, that would have pressured UC to seek ethnic parity not just in admissions but also in graduation rates.
In its Bakke decision in 1978, the court held that the University of California and other selective educational institutions could consider race as one “plus” factor in admissions.
But at many institutions, including California’s, that “plus” soon grew to a large margin as measured in formal academic qualifications, often at the expense of other minorities – Asians particularly – who got no racial preferences.
Until some Asian parents got a federal court order in 1999 to block the practice, San Francisco’s ethnic quotas prevented countless highly qualified Chinese-American students from admission to its selective high schools, Lowell in particular, in favor of academically less qualified “under-represented” minorities.
Given that history, it’s especially ironic that San Francisco’s complaint about the pernicious effect Proposition 209 has had on its African American and Latino children says not a word about Asians, for over a century themselves victims of vicious discrimination, or about the federal court decision (Ho. v. San Francisco Unified School District) that ended the quota system. Do even liberals want to return to that?
In the majority white nation of the 1960s, where minority African Americans had suffered three centuries of slavery and Jim Crow and where desegregation was still more a hope and even less a reality than it is now, the need for race-conscious affirmative action seemed self-evident and fully justified.
A half-century later, a multi-ethnic society with millions of mixed-race individuals makes it more questionable with each passing day. Should the son of a wealthy Argentinian or a Mexican lawyer get a preference over the daughter of a Kentucky coal miner merely because he has a Latino name? Ever more Californians are born to parents of different ethnicities; in what category do they belong?
The amicus brief filed by UC’s chancellors and president (Mark Yudof, the last president, not Janet Napolitano, the new one) makes much of the fact that after race preferences ended in UC admissions – actually first ended by a vote of the regents in 1995 – enrollment of African Americans and Latinos declined sharply. And when measured by the ethnicity of high school graduates, as they argue, it’s never recovered at Berkeley or UCLA, UC’s most selective institutions.
But it is sharply up at campuses like UC Riverside and the relatively new UC Merced, where (in 2010) there were nearly twice as many Latinos as whites. And as the UC officials’ brief notes, intensified color-blind outreach programs (and, despite rising tuition, generous financial aid policies) have brought the system’s overall enrollment of students from low- and moderate- income families to record levels.
In 2010, 39 percent of UC students had federal Pell grants, far more than any other major university, public or private, in the country.
None of that produces equity at many levels of the nation’s education system, or the quality social and educational programs – in health care, preschool, teacher training – that other nations provide. But it does indicate that raising ethnic percentages on a few campuses addresses, at best, only a tiny fraction of the issues.
Because Berkeley and UCLA can’t take race into consideration, they undoubtedly lose some desirable prospects to selective universities that can. But that will be a loss mainly on the selective campuses, not for the students who choose to go elsewhere, or for the nation’s pool of talent. And in a multi-multi-ethnic state like California, where whites are now also a minority, affirmative action could become an ever-more divisive issue. For a society of so many colors, only color-blind will work.
Peter Schrag is the former editorial page editor and columnist of the Sacramento Bee. He is the author of “Paradise Lost: California’s Experience, America’s Future” and “California: America’s High Stakes Experiment.” His latest book is “Not Fit for Our Society: Immigration and Nativism in America” (University of California Press). He is a frequent contributor to the California Progress Report.
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