Trump’s new guidelines trigger debate on affirmative action, but California already bans it

Alison Yin for EdSourceStudents at UC BerkeleyAlison Yin for EdSourceStudents at UC BerkeleyCalifornia is likely to be little affected by the Trump administration’s latest moves against racial affirmative action in part because the state already banned such racial preferences in public education policies and state university admissions more than two decades ago, experts said Tuesday.
Richard Kahlenberg, a senior fellow at the Century Foundation in Washington, D.C., said that the recent rollback of Obama administration’s guidelines allowing or encouraging some affirmative action is “more symbolic than significant” nationally and that any real change on affirmative action would await possible future decisions by the U.S. Supreme Court.
As a result of an initiative approved by California voters in 1996, state law is already “more restrictive” than what past federal court rulings allow, he added. So the Trump guidelines “shouldn’t have much impact in California,” said Kahlenberg, who advocates affirmative action based on economic class, not on race.
Earlier this week, a joint statement by the U.S. Departments of Education and Justice announced the revoking of seven Obama era guidelines, letters and memos that said race could be considered in narrowly tailored ways in efforts to make schools and colleges more diverse and equitable. The Trump administration statement said those previous guidelines went “beyond the requirements of the Constitution.”
However the Trump administration’s steps do not carry the weight of law since the U.S. Supreme Court has allowed narrow use of affirmative action, experts added. They predicted that President Donald Trump’s goal is to have the new guidelines become law through any future court cases on the issues.
Meanwhile, any California impact at all might be felt at private colleges and universities that rely on affirmative action in admissions, Kahlenberg and others said. That’s because California voters in 1996 approved Proposition 209, which, among other things, forbids race to be considered in admissions to the state’s public schools, colleges and universities but does not cover private institutions.
California’s public universities have chafed against such restrictions and have developed other ways to seek more racially diverse student bodies without breaking the law. Still, they have not regained all the levels of racial diversity, particularly for African-American students, that existed before the 1996 ban.
Among other changes after Proposition 209, students who are low-income or face significant life hardships may be given a slight boost in University of California admissions if they already meet minimum academic standards. A student is now guaranteed a spot in the UC system, although not necessarily at UCLA or Berkeley, by being in the top 9% of his or her high school class, not just in the top tier of students statewide as was the case previously. And universities actively recruit in ethnic communities. Some critics suspected UC might be quietly violating or subverting the law, an allegation university leaders deny. 
None of that is likely to change as a result of this week’s announcement by the Trump administration.
In fact, if the U.S. Supreme Court rules in any future case against affirmative action, as is possible after the departure of Justice Anthony Kennedy, California’s approach to supposed race-blind policies for public university admissions may become a national example, some say.
“It might be a model, but not a good model,” said Gary Orfield, co-director of the Civil Rights Project at UCLA, a research and policy institute that promotes access to equal education for minority students. Without affirmative action, UC’s efforts to recruit minorities and to encourage minority students to attend college readiness programs “didn’t really work very well.” The heavy concentration in California of black and Latino students in low-performing high schools continues to harm those students’ access to higher education, he said.
After Proposition 209, the percentages of blacks and Latinos in the UC system dropped dramatically. In recent years, they have mainly rebounded and for Latinos gone beyond that level, due to demographic shifts. But Orfield and others said Latinos at UC still lag significantly behind their share of high school graduates, let alone overall population, and that that lag is most pronounced at the most competitive UC campuses.
The Latino share of UCLA’s freshman class was 21 percent in 1995, dropped to 10 percent by 1998 and has climbed to 29% last fall, UC records show. UC Berkeley’s Latino share of freshmen was 15.5%, dipped to 7.3% after the proposition went fully into effect and then climbed to about 20 percent last fall. But 51 percent of high school graduates in the state are Latino. African-Americans made up six percent of UC Berkeley freshmen in 1995 and were only 3.5 percent last fall although blacks comprise about six percent of statewide high school graduates.
Orfield said the Trump administration is creating a hostile environment to affirmative action with the new suggested rules, along with its Justice Department investigation into complaints that Asian-Americans face discrimination in admissions to Harvard and other actions. A more conservative replacement to retiring U.S. Supreme Court Justice Kennedy could mean successful challenges to the already limited used of affirmative action allowed by previous court decisions, he said.
That, he said, should worry private colleges who use affirmative action. “Anyone who cares about diverse colleges has to be concerned about this,” Orfield said.
Thomas A. Saenz, president and general counsel of MALDEF (Mexican American Legal Defense and Educational Fund), which is based in Los Angeles, strongly denounced the Trump policy guidelines as part of a “fetish for white nationalism,” but said that private colleges should not be concerned much now about having to change their admissions practices. At the most, those schools may review their admissions policies to see whether they match the U.S. Supreme Court rulings that allow narrowly drawn use of affirmative action. Otherwise, he said he did not think selective private colleges “are going to be particularly affected” by the policy guidance changes.
The University of San Francisco, a Jesuit institution with about 6,700 undergraduates, has been using race-based admissions for “decades,” said Donald E. Heller, provost and vice president of academic affairs. The university doesn’t plan to change its practices as a result of the guidance letter issued by the Trump administration, as it does not overturn Supreme Court rulings permitting affirmative action, he said. But he said, “Any time a guidance letter comes we take a look at it with an eye to make sure we’re in compliance with the law.”
The University of San Francisco doesn’t use a specific formula or points system in considering race but rather takes a “holistic” admissions approach that considers academic achievement, letters of recommendation and other factors, including racial background, Heller said. According to federal data, 27 percent of the school’s students are white, 21 percent are Asian, 19 percent are Hispanic and 3 percent are Black.
Several efforts to overturn or weaken Proposition 209 have failed. In 2011, Gov. Jerry Brown vetoed a bill that would have allowed affirmative action in public college admissions. 
Brown said that the matter should be left to the courts even though he agreed with the bill’s goal. That bill attracted opposition from some Asian Americans who feared that racial affirmative action would harm their chances to win admission at the most elite UC campuses.
Toni Molle, a spokeswoman for the California State University system, said officials expect any effect on the university from new federal policies on affirmative action “to be negligible because our admissions are based on test scores and grades. Race and ethnicity are not factored in.” She added that CSU “values diversity in our students. As a university with a mission focused on opportunity, our diversity comes from the diversity of California’s population.”
UC spokeswoman Dianne Klein said that the university officials were not available to comment but she referred to the legal brief that the university filed at the U.S. Supreme Court three years ago in support of affirmative action nationwide. That document was part of the case in which the high court later upheld the limited use of affirmative action at the University of Texas’ Austin campus despite claims of discrimination by a white applicant.
 In that brief, UC said it was hampered by Proposition 209 and that even with extensive outreach, “the enrollment rates for underrepresented minorities still have not rebounded at UC’s most selective campuses, and the overall enrollment figures at UC have not kept pace with the demographic changes in California.”
EdSource reporter Mikhail Zinshteyn contributed to this article.
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