What the Supreme Court should learn from California’s Prop. 209 mistake

UCLA students rally in solidarity with protesters at the University of Missouri in November, demonstrating against racial problems at their own school.
UCLA students rally in solidarity with protesters at the University of Missouri in November, demonstrating against racial problems at their own school. The Associated Press

It has been nearly 20 years since California voters banned affirmative action in college admissions. Campus diversity in the state has never recovered from the chain saw that was Proposition 209.

Black student enrollment at the University of California – never great to begin with – has plummeted since the ban passed, and current levels are downright abysmal. At UC Berkeley, African Americans have fallen from 6.3 percent of freshmen in 1995 to 2.8 percent this year. At UCLA, black students have gone from 7.1 percent to a little over 4 percent of freshmen.

That’s 977 black Bruins out of a freshman class of more than 22,500. No wonder the Twitter hashtag #BlackOnCampus has become synonymous in California with “marginalized.”

That collective retreat has been not only a source of embarrassment but an ongoing problem in many ways for the UC system and the diverse state that depends on, and underwrites, its graduates.

Now, with the U.S. Supreme Court preparing to weigh in this week on an affirmative action case out of Texas, California is making sure that this state’s lessons won’t be lost on the high court.

The justices should listen. Briefs filed by the University of California and by Attorney General Kamala Harris make it clear that practically and socially, dropping race as one factor in college admission here was a mistake.

Federal law allows race and ethnicity to be considered in college admissions, as long as it’s one of many factors. Fisher v. University of Texas at Austin, brought by a white student who sued when she didn’t get into that elite state school, claimed that Texas discriminated against her, even with its very limited consideration of race.

In 2013, the Supreme Court heard the case and kicked it back for review by the U.S. Court of Appeals for the 5th Circuit. Justice Anthony Kennedy, writing for the majority, said the lower court had to examine the admissions system more closely to determine whether Texas could have achieved its diversity goals with a more race-neutral system.

The 5th Circuit determined it couldn’t – no surprise to California. As UC and Harris point out in the amicus briefs they’ve filed now that Fisher’s lawyers have again appealed that decision, Proposition 209 did remove race, and the student body demographics still haven’t completely rebounded.

A host of workarounds, from broadened admissions criteria to de-emphasizing standardized test scores, have failed to mitigate the damage, the UC noted. As a result, Harris’ brief added, the UC “has struggled” to maintain sufficient diversity, with white applicants still nine percentage points more likely to be admitted than Latinos.

“In the past two decades,” Harris wrote, “the number of Hispanic applicants to the University of California’s campuses in Los Angeles and Berkeley has increased 350 percent, but the number admitted has remained relatively constant.”

Meanwhile, she notes, K-12 schools, as they have elsewhere, have become more segregated in this state.

Race is as constant an issue as it is corrosive. Proposition 209 was approved by 55 percent of the voters in this state. As recently as 2008, a poll by the Public Policy Institute of California found that while large majorities of blacks and Latinos here felt racially diverse student bodies were important, Asians and whites were evenly split on the matter.

But as campus after campus is discovering, a state whose opportunities don’t match its demographics is a state with problems. Kennedy, the perennial swing vote and a Californian, should direct the Supreme Court’s attention westward, and not lead the rest of the country to reprise his state’s mistake.