Scheming to Revive Racial Preferences in California

Gail Heriot

Editor’s note: This article was originally posted by the RealClearPolitics and is posted here with permission.

California’s deep-blue legislature has been itching to repeal Proposition 209 for years. Now, in the midst of a global pandemic, legislators are giving that effort priority over the state’s plainly more urgent concerns. Shame on them.

Adopted by voters in 1996, Proposition 209 amended California’s constitution to prohibit the state from engaging in preferential treatment based on race or sex. It was a rebuke to the identity politics obsessions of state and local governments. The rebuke was especially sharp toward public universities, where preoccupations with race and sex had grown to astonishing proportions.

Golden State voters understood what the diversity industry hoped they wouldn’t:  Preferential treatment for some groups necessarily means discrimination against others. By approving Proposition 209 by a wide margin, they aimed to end the race and sex spoils system.

One argument against the initiative — originally made by President Bill Clinton — was that under Proposition 209, some California universities might have “nothing but Asian Americans” as students. The hyperbolic comment drew criticism at the time. Not only was it false, it was an all too obvious attempt to stoke racial resentment.

Despite Clinton’s demagoguery, many Asian Americans stayed on the controversy’s sidelines in 1996. Since then, however, two things have changed. First, eye-opening facts about admissions policies at prestigious universities have been leaking out from various sources, including from the lawsuit Students for Fair Admissions v. Harvard University. Asian American voters now know just how much the deck is stacked against their children at universities not subject to Proposition 209. Second, the number of Asian American voters in California has increased substantially.

Consequently, Asian Americans’ days of staying on the sidelines are over. Asian American grassroots organizations took the lead in 2014 in nipping in the bud the California legislature’s first serious attempt to repeal Proposition 209. Last year, similar groups in Washington state spearheaded the defeat of a repeal effort of that state’s version of Proposition 209.

Not surprisingly, many of these same organizations are now gearing up to fight the repeal bill — ACA-5. An online petition has already fetched over 26,000 signatures.

Organizing during the lockdown will be tough. Mass meetings, gathering petition signatures at the ballpark, and visits to legislators are out. Maybe that is why ACA-5’s supporters in the Assembly are currently doing all they can to ram the bill through quickly. But they have a tough row to hoe too. The measure needs a two-thirds majority in both houses. Even then, the battle will only have shifted. The legislature can’t by itself repeal Proposition 209. The matter must then go to the people for a vote, at taxpayer expense, in November.

The best reason for retaining Proposition 209 isn’t that repealing it will encounter opposition. It’s that the initiative has been good for Californians — of all races — and would have been even better if followed more faithfully. Opponents argued in 1996 that if the University of California system were required to apply the same admissions standards to all students regardless of race, under-represented minority students would suffer. The reality was the opposite: It enhanced their academic success.

Decades of well-meaning but misguided admissions policies had made it difficult for affirmative action’s so-called beneficiaries to excel. Placed on campuses where their level of academic preparation put them at a competitive disadvantage vis-à-vis other students, they tended to cluster toward the bottom of the class, a demoralizing position.

When Proposition 209 went into effect, it is true, the number of under-represented minority students at UC-Berkeley decreased significantly. But those students didn’t just disappear. Most were accepted at other campuses of the prestigious UC system — based on their own academic records rather than their skin color. On several UC campuses, their numbers increased.  More important, their performance improved dramatically.

Data from UC-San Diego (one of the more elite UC campuses) illustrate what happened. In the year immediately prior to Proposition 209’s implementation, only one African American student in the entire freshman class was an honor student. Following implementation, a full 20% of African American freshmen were. That was higher than the rate for Asian Americans (16%) and extremely close to the rate for whites in the same year (22%). Even more impressive, the number of under-represented minority students in academic jeopardy collapsed.

As Richard Sander and Stuart Taylor Jr. show in their 2012 book, “Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It,” in the years immediately following Proposition 209, it had three effects on under-represented minorities in the UC system. It increased (1) graduation rates, (2) GPAs, and (3) the number of science or engineering majors.

Call it a Triple Crown. Ordinarily, these three goals would be difficult to achieve simultaneously since they tend to work against each other. Grading curves are traditionally lower in science and engineering than in other departments, so the more science and engineering majors, often the lower the average GPA. Similarly, graduation rates tend to increase when weaker students (with lower GPAs) manage to make it to the end. Happily, “matching” students to the right institution made improvement possible on all three fronts. It’s as if Ford had invented a car that was more powerful, got better gas mileage, and cost less — all at the same time.

California legislators want to throw all that away and bring back an ugly spoils system. Californians shouldn’t let them.

Gail Heriot is a law professor at the University of San Diego and a member of the U.S. Commission on Civil Rights. She co-chaired the Yes on Proposition 209 Campaign in 1996.

Image: David Monniaux, Public Domain

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