The lessons college administrators in California took away after affirmative action was banned in the state still resonate today, especially as the U.S. Supreme Court is expected to ban the program nationally.
The Supreme Court appears ready to abolish affirmative action later this year. The case seeking to declare it unconstitutional has schools that consider race in admissions worried about how they can continue to build diversity among their students without affirmative action.
Here in California, though, we already know what happens when programs like affirmative action are banned. In 1996, voters passed a first ballot initiative in the country to ban the consideration of race or gender and public education.
Today, how the University of California system has dealt with a 25-year ban on affirmative action. And what we can learn if a national ban does happen. Read the full transcript here.
Host: Gustavo Arellano
Guests: L.A. Times reporter Teresa Watanabe
More reading:
California banned affirmative action in 1996. Inside the UC struggle for diversity
Are Asian American college applicants at a disadvantage? Supreme Court debate stirs fear
Some audio in this episode is courtesy of the William J. Clinton Presidential Library.
Gustavo: The Supreme Court appears ready to abolish affirmative action later this year.
A case seeking to declare it unconstitutional has schools that consider race in admissions really worried.
They're not sure how to build diversity among their students without affirmative action.
AP News: The most extreme action the court could take would be to overrule 40-plus years of precedent and strike down a doctrine that has been a foundation for much of higher education admissions.
Gustavo: Here in California, though we already know what happens when programs like affirmative action are banned. In 1996, voters passed the first ballot initiative in the country to ban the consideration of race or gender and public education. The lessons college administrators took away is one that still resonates today.
AP News: With the incoming class of 1997, the number of Blacks admitted decreased 81% while Hispanic admissions fell 50%.
Gustavo: UC administrators say nothing can fully substitute for affirmative action when it comes to diversifying the student body on college campuses.
I'm Gustavo Arellano. You're listening to The Times: Essential News from the L.A. Times. It's Wednesday, Jan. 4, 2023.
Today, how the University of California system has dealt with a 25-year ban on affirmative action. And what we can learn from it if a national ban does happen.
My colleague Teresa Watanabe covers education for the Los Angeles Times. Teresa, welcome to The Times.
Teresa Watanabe: Thank you.
Gustavo: So what's this anti-affirmative-action moment in the Supreme Court about?
Teresa: Right now the U.S. Supreme Court is considering challenges to affirmative action at Harvard and the University of North Carolina. And those lawsuits have been brought by this organization called Students for Fair Admissions, which is headed by a guy named Edward Blum.
Edward Blum: Those schools that are using race preferences now are put on notice that they had best end those practices and attempt to find some race neutral means of achieving diversity.
Teresa: He's a quote “legal entrepreneur” who's taking aim at race-based programs throughout academia.
Edward: Government cannot grant a preference to an individual based upon his race and not subject another individual to discrimination based upon his race as a consequence. Government and affirmative action must become color blind. That is the original ideal of the civil rights movement, and that's the ideal we hope to reclaim.
Teresa: He argues that using race for admissions decisions violates the U.S. constitutional guarantee of equal protection in the case of UNC, which is a public university and the 1964 Civil Rights Act, which bans the use of race in educational institutions that accept federal funding, and that applies to Harvard University, which is a private university, as well as UNC.
Gustavo: When is there expected to be a decision on this?
Teresa: Well, the oral arguments wrapped up on Oct. 31, and they're expecting a decision sometime between next spring and summer.
Gustavo: Yeah, spring and summer of 2023. And this isn’t the first time the Supreme Court has heard challenges to affirmative action, but I think most people will be surprised to learn that the first big blow against it was actually a case from California.
Teresa: Yeah, that's right. Well, California has been at the center of national debates over affirmative action for nearly four decades. And it all started in 1974 when Alan Bakke, a white applicant, was rejected from UC Davis medical school. He alleged “reverse discrimination.”
Allan Bakke: Now what type of self-esteem is a person going to build for himself when he starts to develop the attitude that everywhere he goes, because he or she is Black, he is going to have to have special help from the government to make it?
Teresa: His case made it all the way up to the U.S. Supreme Court.
Oral arguments: First case on today's calendar is number 76811, Regents of the University of California against Bakke.
Teresa: And the high court actually struck down the use of racial quotas.
Oral arguments: We have this court again stepping in, this time to stop affirmative action programs of the type used by the University of California.
Teresa: But they did say that race could be considered as one of several factors in order to promote what they said was a compelling interest in educational diversity.
Gustavo: Hmm. So after Bakke, what happened to affirmative action programs in California and beyond?
Teresa: So in California, they continued to use race as one of many factors until 1995, and that is when the University of California Board of Regents decided to on their own pass a resolution banning the use of race in admissions. And a year after that, in 1996, California voters approved the first ballot initiative outlawing the use of race or gender in public education, hiring and contracting. And so since then, public universities and government entities have not been able to consider race at all in any of their educational decisions.
Gustavo: What were the arguments about Prop. 209, both for ending affirmative action altogether at California public schools and keeping it?
Teresa: Well, the argument for Proposition 209 was that this was basically discrimination, racial discrimination to give certain members of certain ethnic groups, and we're talking about Black, Latino and Native American students, an edge over white and Asian American students. That this was not fair and it was unconstitutional and that our whole system was based on this idea of equal rights for all. But the argument against it was that California and the United States had discriminated against certain communities of color for so long, and this was a way to help them get into top-tier universities, fully reflect the state's diversity, which is what our public universities are supposed to do. And just basically allow greater access to our university systems, to the full range of Californians.
AP Clip: The president campaigned against the initiative, acknowledging problems with affirmative action, but saying it still has a role to play. “Mend it, don't end it,” was the way he put it.
President Clinton: Affirmative action is an effort to develop a systematic approach to open the doors of education, employment and business development opportunities to qualified individuals who happen to be members of groups that have experienced longstanding and persistent discrimination.
Teresa: But Proposition 209 passed by a large margin.
AP News: Controversial Black UC Regent Ward Connerly opened his remarks at the Capitol saying he's ecstatic. “So this is a happy day for all Californians: 209 is the law. We now need to live with it, learn how to adjust to the realities of a color-blind society and get away from checking all these silly little boxes.”
Gustavo: Coming up after the break, what happened once Prop. 209 was passed.
Gustavo: Teresa, after Proposition 209, what happened to diversity in higher ed in California?
Teresa Watanbe: What happened was what the critics had feared would happen and that is that diversity plunged, especially at the top universities. So specifically at UCLA and UC Berkeley, the number of California Black and Latino first-year students plunged by nearly half. I spoke to this guy named William Kidder, who works at UC Riverside; at the time, he was a first-year law student at UC Berkeley, and he said he was stunned to walk into his law class and see almost no Blacks or Latinos when the preceding class had had many, many more. And he said he felt as a white person, that he was being deprived of the chance to have a full and rich educational experience with the whole, you know, rainbow of Californians in the state. It was a huge shock to the system to lose so many underrepresented minorities as applicants and enrollees in the UC system. However I should add that although diversity really plunged at the most selective universities, it actually increased at the less selective universities. So they say there's this cascading effect where the most selective universities were constrained from diversifying their enrollees as much as they used to. But then more and more of them ended up at the next tier, the second tier of universities. And interestingly, at Cal State University, it hardly made a difference. Cal State is the state university system, with 23 campuses. Their diversity has always been really robust, and their students fully reflect the state's diversity back then and today.
Gustavo: So what did UCs and Cal States do to try to diversify their student body if they couldn't use solely race and gender anymore in allowing students?
Teresa: University of California in particular has been a laboratory for experiment for more than 25 years in trying to find alternatives. And initially one of the main things they did was try to use income and socioeconomic status as a proxy for race. So they made a greater effort to recruit students who maybe were low-income. They made a much greater effort to recruit heavily in underserved neighborhoods. UC has spent more than half a billion dollars over these past 25 years trying to diversify their student body without the use of race. And they were somewhat successful, but not as successful as they hoped to be. So in the early 2000s, they launched two major reforms.
One of them was to guarantee admission to top-performing students statewide. And importantly, at most California high schools, so that if you were the top 9% of students in, let's say, a high school in an underserved neighborhood, that your students would have a guarantee to get in. And that also made a difference.
The other thing that did make a difference was they launched something called a comprehensive review process. So the UC takes many, many factors into account as they weigh admission decisions, and grades and test scores are not the only metric. And actually UC and Cal State got rid of test scores. But grades they look at, they look at the rigor of your high school transcript, but they also look at leadership, the location of your high school, the challenges that you faced.
And they look at the opportunities that you have had, so that if you're in an underserved neighborhood and your high school only has, 10 Advanced Placement classes versus another school in a wealthy neighborhood that has 30, they will see, well, if you took 10 of the 10, that is going to be, you know, more impressive than some kid in an affluent neighborhood that took only, you know, 15 of 30.
Gustavo: California is far more diverse now than it was 25 years ago around the Prop. 209 days. So how does diversity look in higher education in California public schools?
Teresa: So UC is definitely more diverse today than it was in 1996. For instance, this year for fall 2022, Black and Latino students actually made up 43% of the first-year pool compared to 20% before Proposition 209. However, people are still saying that it's not diverse enough because, you know, Latino high school students make up I think more than half of the high school classes today, and at the UC, they're probably about 30% of students. So Latinos are still underrepresented at the UC, and so there's still a lot of work to be done.
Gustavo: I remembered the aftermath of Prop. 209. Even to this day, its advocates say that it's great that California has a color-blind system in higher education. But were there ever any studies that showed maybe the opposite, that maybe Prop. 209 didn't deliver what its advocates said it was going to?
Teresa: Yes, there was a really good study out of UC Berkeley by Zachary Bleemer, and he tracked the students back in 1996 – the ones who didn't get into UCLA or UC Berkeley had to go somewhere else. And he found that by the mid-2010s, the effects of Prop 209 had reduced the number of early-career Black and Latino Californians earning more than $100,000 by about 3%. That represents as many as 1,000 earners. So it actually had a very real and negative impact, you know, on hundreds of Californians.
Gustavo: After the break: What do UCs think of affirmative action today?
Gustavo: Teresa, how does the UC system, both, say, campuses and regents, feel about affirmative action these days?
Teresa: Well, they still strongly support affirmative action. They believe that there is no substitute for affirmative action to diversify the campuses, and UC has actually filed amicus briefs in support of Harvard and University of North Carolina. However, you know, California voters continue to support a ban on affirmative action. Legislators have tried at least three times to restore affirmative action, most recently in 2020 when they put an initiative on the ballot that would've overturned Prop. 209 and restored affirmative action. But the voters rejected that soundly, by 57% opposed to restoring affirmative action compared to 42% who wanted to bring it back.
Gustavo: Wow. I don't understand though if the numbers now are more diverse, at least at UCs than they were 25 years ago, why do the UC folks still say that it's not enough? And affirmative action would actually make things even more diverse?
Teresa: They say again that the diversity of the system still does not fully reflect the state. And you know, even if Black students are 5 to 7% of students eligible for UC admission, and even if they make up 7% of UCLA first-year incoming students, if you're a Black student and you're at this huge university of 40,000 people and only 7% are people who look like you, it still is not necessarily a comfortable experience. And so I think the UC leaders, the campus chancellors, the faculty and the students themselves all just want a greater mix of diversity on their campuses.
Gustavo: Finally, Teresa, if the Supreme Court does decide to ban affirmative action, what do you think universities across the country can learn from how the UCs have dealt with a reality without it?
Teresa: Well, I do think that the UC experience does offer a playbook for universities, as they start thinking about what they're going to do if the high court strikes down affirmative action. And it includes a lot of things, like they're gonna have to put a lot more effort into, first of all, messaging, that diversity is still super important to them. They're gonna have to put a lot more money into robust recruitment, academic preparation on campus visits. They’re gonna have to look at programs that have been somewhat successful at UC, like the guaranteed admission to the top-performing students, not just statewide, but at specific high schools across the whole realm of socioeconomics, including those in Black and brown neighborhoods. And, you know, they're probably gonna have to think about using a holistic, comprehensive review system so that they can make sure that they assess students, you know, not just on grades, but on the whole realm of their experiences including race. Because one interesting thing in the high court arguments was that the Supreme Court justices seemed to say that you could talk about race and what growing up as a person of color has meant in your essays.
Supreme Court Oral Arguments: What if an applicant wrote an essay about how integral their racial identity was to them as a source of pride, and the cultural attributes of the racial heritage were very important. Would that be OK? Even if it were all intimately tied up, say, with, you know, the traditions of a Mexican family?
Supreme Court Oral Arguments: I think culture, tradition, heritage are all not off limits for students to talk about and for universities to consider. They can't read that and say, oh, this person is Hispanic or Black or Asian and therefore I'm gonna credit that. They need to credit something unique and individual in what they actually wrote, not race itself.
Teresa: So it's not like they're going to be saying you can't consider race at all in any form, but it just has to be all taken into context.
Supreme Court Oral Arguments: We’re not supposed to discriminate on the basis of viewpoint or discriminate on the basis of religion. They’re considered as sacrosanct I believe as race.
Gustavo: Teresa, thank you so much for this conversation.
Teresa: Thank you for having me.
Gustavo: And that's it for this episode of The Times, Essential News from the L.A. Times.
Natalie Bettendorf was the jefa on this episode and Mike Heflin mixed and mastered it.
Our show is produced by Denise Guerra, Kasia Broussalian, David Toledo and Ashlea Brown. Our fellow is Helen Li. Our editorial assistants are Roberto Reyes and Nicholas Perez. Our engineers are Mario Diaz, Mark Nieto and Mike Heflin. Our editor is Kinsee Morlan. Our executive producers are Jazmín Aguilera, Shani Hilton and Heba Elorbany, and our theme music is by Andrew Eapen.
I'm Gustavo Arellano. We'll be back Friday with all the news and desmadre. Gracias.