A Veto for Racial Preferences

Peter Wood

A few days ago, Governor Jerry Brown did something unexpected: he vetoed a bill that would have restored racial and ethnic preferences for admission to California’s public colleges and universities. The bill, SB 185, was sponsored by state senator Ed Hernandez in a campaign that was nakedly about pandering to Hispanic voters. SB 185 was, in effect, an attempt to undo what California voters accomplished in 1996, when they passed Proposition 209, the measure that amended the state’s constitution to read:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

Foes of this civil-rights provision have tried over and over again without success to have it ruled unconstitutional. The most recent instance was last year when California’s Supreme Court ruled six to one that Proposition 209 is indeed constitutional. Senator Hernandez then launched his attempted end-run around the state constitution.

Hernandez’s idea was to provide the legislative equivalent of a wink. The Legislative Counsel’s Digest summarized it:

This bill would authorize the University of California and the California State University to consider race, gender, ethnicity, and national origin, along with other relevant factors, in undergraduate and graduate admissions, to the maximum extent permitted by the 14th Amendment to the United States Constitution, Section 31 of Article I of the California Constitution, and relevant case law.

The key phrase here is “to the maximum extent permitted by…” which seems to respect the U.S. and California Constitutions even as it urges the two state universities systems to defy the spirit of the law.

Does anyone think these universities were not already engaged in “considering” race, gender, ethnicity, and national origin in their admissions decisions “to the maximum extent permitted” under the law—and then some? University officials have been on the forefront of efforts to get around the obstacles to racial preferences posed by Proposition 209. Over the years, I have documented several of these skirt-the-law approaches. Santa Rosa Junior College, for example, was found by a Sonoma County Grand Jury in 2007 to have violated the state constitutional prohibition on racial preferences. In 2010, Paul Zingg, president of California State at Chico, launched an ambitious campaign to make his university an official “Hispanic Serving Institution.” President Zingg made clear that his university places “diversity at the core of our mission, vision and priorities.” Any doubt that Santa Rosa Junior College and Cal State Chico do not already have the racial preference accelerator pedal pushed all the way to the floor?

The efforts to promote racial preferences have also included strenuous efforts to hide the evidence. In response to an examination of racial preferences in law-school admissions in California, for example, several law school deans in October 2006 objected to the California Bar’s decision to release data on bar passage rates to Professor Richard Sander and his ideologically diverse team of researchers. The office of the UC president joined the deans in support of the stonewalling.

Those are a few instances of how deeply committed the higher education establishment in California has been to thwarting the spirit of Proposition 209. The people of California do not want to live under a regime of racial preferences. They took the trouble to add a provision to their constitution outlawing the practice. Colleges and universities adjusted, trimming their racial preferences where they had to, disguising them where they could, but seldom if ever seeking to make their campuses into racial and ethnic preference-free zones.

Many of those campuses instead went in the opposite direction and built administrative bureaucracies premised on the idea of promoting racial and ethnic division as much as they possibly could. We saw this at the University of California at Berkeley after SB 185 gained legislative approval and was sitting on Governor Brown’s desk awaiting his signature. The Berkeley College Republicans announced an “Increase Diversity Bake Sale” (which I wrote about here) to publicize their opposition to SB 185, but UC Berkley’s “vice chancellor for equity and inclusion,” Gibor Basri, weighed in to call the event “misguided,” and to declare that “a lot of students” would see the event as “placing a higher value on white students.”

Why, in a state that does not permit racial and ethnic preferences, does UC Berkeley even have a “vice president for equity and inclusion?” The position is, all by itself, a declaration on the part of the university that it intends to thwart the law in any way it can.

All this is to say that Senator Hernandez need not have troubled himself to draft AB 185 if all he intended to do was offer some moral encouragement to the pro-preference lobby. The deeper purpose was to achieve a practical nullification of the law, regardless of what the state’s highest court had said—twice.

And that, of course, put Governor Brown in an awkward spot. His veto came with the bittersweet lament, “I wholeheartedly agree with the goal of this legislation.” But he finds himself unable to sign it because, “Our constitutional system of separation of powers requires that the courts—not the Legislature—determine the limits of Proposition 209.” And he realizes, “Signing this bill is unlikely to impact how Proposition 209 is ultimately interpreted by the courts; it will just encourage the 209 advocates to file more costly and confusing lawsuits.”

As one of those advocates, I wonder about Brown’s word “confusing.” There is nothing confusing about the principle that we are all equal before the law and that no group should be stigmatized or benefited on the basis of racial classification. The American people in overwhelming numbers “get it.” The confusion belongs to politicians who attempt to harvest votes by turning identity groups into clients and diversicrat administrators who make careers out of fostering identity group grievances.

I am gratified by Governor Brown’s unexpected veto. The National Association of Scholars played a key role in promoting the original Proposition 209. Two of our members, Tom Wood and Glynn Custred, drafted it, and a third member, Gail Heriot, co-chaired the campaign. We have worked with Ward Connerly, who heads the American Civil Rights Institute, to replicate the success of Proposition 209 in other states, including Washington,  Michigan, Nebraska, and Arizona.

Thus it may well be that Governor Brown paid attention when the California Association of Scholars sent a letter to the California State Senate Education Committee and another to the House Committee.  The latter ends:

What, then, can SB185 possibly achieve? It may persuade people who do not understand the law to make an admission to UC that was influenced by race. That will result in unnecessary and costly lawsuits, the outcome of which is pre-ordained. Will the authors of this mischievous bill be proud of having clogged the courts with pointless lawsuits? But is there anything else that SB185 could achieve? Surely the legislature has better things to do with its time than waste it on bills like this one.

This sounds a bit similar to Governor Brown’s worry about “costly and confusing lawsuits” eventuating if he signed the bill. Maybe he was persuaded. In any case, I’m pleased that he has upheld California citizens’ belief in colorblindness as the best way to cultivate respect, justice, and excellence on our nation’s campuses.

This article first appeared at the Chronicle of Higher Education's Innovations blog on October 12, 2011.

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