California Forum

Remember that time California said ending affirmative action wouldn’t gut campus diversity?

Demonstrators rally in 1997 against the anti-affirmative action measure, Prop. 209, outside Sproul Hall at UC Berkeley while protesters inside barricade themselves in the lobby. A year after the measure passed, the number of African American freshmen had fallen from 215 in 1995 to 126.
Demonstrators rally in 1997 against the anti-affirmative action measure, Prop. 209, outside Sproul Hall at UC Berkeley while protesters inside barricade themselves in the lobby. A year after the measure passed, the number of African American freshmen had fallen from 215 in 1995 to 126. Associatd Press

As California discovered two decades ago – the hard way – affirmative action programs remain essential in order to have racially diverse colleges and universities. This is why it is deeply disturbing to hear the Justice Department’s announcement that it is going to investigate campuses for discriminating against white students.

The simple reality is that colleges and universities engage in affirmative action because they have found no other way to remedy the legacy of race discrimination and to have racial diversity in their classrooms. In 1996, California voters passed Proposition 209, which forbids discrimination or preference by the government based on race or gender in education, employment, or contracts. The purpose and effect of Prop. 209 was to eliminate affirmative action programs in the state. The effect on racial diversity was dramatic.

The number of African American freshmen enrolled at UCLA fell by nearly half – from 264 in 1995 to 144 in 1998, the first year that Prop. 209 took effect. At Berkeley, over the same period, the number of African American freshmen fell from 215 to 126. It was not until 2015, almost 20 years after its enactment, that the number of African Americans at UCLA reached what it was before the enactment of Prop. 209.

I have been a professor for 30 years now and have taught constitutional law in classes that are almost all white and in classes that are racially diverse. It is vastly different to talk about topics like racial profiling by the police or race discrimination in housing or affirmative action in a diverse as compared to a virtually all-white classroom.

Affirmative action works. After the University of Texas adopted its affirmative action program, there was a significant increase in applications from minority students and a 20 percent increase in African American and a 15 percent increase in Latino students.

It also is stunning that the Justice Department said that it wanted to investigate discrimination against whites. In 2015, 24 percent of African Americans and 21 percent of Latinos lived below the poverty level, compared with 9 percent of whites. Of all the problems of discrimination that exist for the Justice Department to investigate and litigate, it is hard to accept that discrimination against whites should be at the top of its civil rights priority list.

The claim of the need to investigate discrimination against whites, like most opposition to affirmative action, is based on the false premise that colleges and universities should be admitting students solely on the basis of their grades and test scores. But that never has been the sole basis for determining “merit.” Colleges and universities always have valued diversity.

It historically has been easier for students from North Dakota or Montana to get into elite private East Coast universities than students from New York or Boston. Those with exceptional skills and talents often have been admitted with lower grades and test scores.

Many colleges and universities give preference in admission to those whose relatives attended the school, something that overall favors whites over racial minorities. As the U.S. Supreme Court has rightly recognized, assessments of “merit” properly look at many factors in terms of how a student will enrich the school, including how the student will enhance racial diversity.

Opponents of affirmative action, including the Trump Justice Department, also say that they are acting to protect Asian Americans from discrimination. But extensive research demonstrates that affirmative action programs benefit all students, including Asian Americans.

Although not every Asian American subgroup remains underrepresented, many are, including Vietnamese, Thai, Lao, Burmese, Filipino, Native Hawaiian, and Pacific Islander students. Race-conscious admissions policies give school officials the ability to take into account the unique experiences of these individuals.

Those who want to end affirmative action fail to recognize that diversity in the classroom matters enormously in education. I have been a professor for 30 years now and have taught constitutional law in classes that are almost all white and in classes that are racially diverse.

It is vastly different to talk about topics like racial profiling by the police or race discrimination in housing or affirmative action in a diverse as compared to a virtually all-white classroom. Preparing students for the racially diverse world they will experience requires that they learn in racially diverse classrooms.

This is exactly why the United States Supreme Court repeatedly, most recently in 2016, has held that it is constitutional for colleges and universities to use race as one factor in their admissions decisions. Unless and until the Supreme Court overturns these precedents, affirmative action by colleges and universities is lawful and the Trump administration is doing nothing but trying to appeal to white voters and further divide the country along racial lines.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

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