Affirmative action for UC system would require revisiting Proposition 209

By Jamie Kelly | Jul 14, 2016

CHAMPAIGN, Ill. – The recent U.S. Supreme Court ruling in Fisher v. University of Texas could give the University of California system a legal opening for re-instating affirmative action, but that would require the repeal of an amendment to the state constitution passed in 1996, according to a former UC Davis law professor.

In June, Vikram Amar, dean of the University of Illinois’ law school and a former law professor at UC Davis, wrote about how the Fisher decision, which allowed race when considering applicants to a public university, could mean that a similar scheme would be allowable in California under the U.S. Constitution. The state’s voters barred the use of race in admission 20 years ago with the passage of Proposition 209.

“It's a narrow legal point that there is now a decision that California can make that will matter, because there is an opportunity to do this under the federal Constitution if California wants to,” Amar told the Northern California Record. “If it wants to, it will have to change its decision from 1996, but before Fisher, it wasn't clear that anything California did was going to matter anyway. Certainly before Scalia's death, that was the broad consensus–that there were five votes to really close the federal window all the way or almost all the way, in which case 209 had a lot less significance.”

The importance of the Fisher decision is that Proposition 209 could be revisited at all, he said.

“Prop. 209 closes a window on affirmative action under state law,” Amar said. “That decision to close the window matters only if the window exists in the first place under the federal Constitution. California has to comply with the federal Constitution regardless of what the state law says. There's been some question for a long time, certainly since (Supreme Court Justice Samuel Alito) replaced (retired justice Sandra Day O'Connor), of whether there would be any federal window left open to begin with. The legal point is simply that now we know the federal window does remain open, it matters whether California decides to go through that window or close it on its own. I don't know what the voters of California are going to think about 209 compared to 20 years ago, but what they think matters in a way that wouldn't have mattered if Kennedy had gone the other way.”

Using race as a factor in college admission has a long and controversial history in the United States, with sometimes conflicting court decisions. In 1996, the 5th Circuit Court of Appeals ruled that the University of Texas’ admission system, which considered race, violated the U.S. Constitution. The UT system made several changes over the subsequent eight years, and in 2003, the Supreme Court ruled that race couldn’t be used to assign points to a particular candidate, but it could be used in a more nuanced and holistic way.

The Fisher ruling, which was authored by Justice Anthony Kennedy, acknowledged a dilemma for college admission officers, Amar said.

“At some level, Kennedy's decision comes down to the following, very unfortunate reality,” he said. “And that is if you don't have race-based affirmative action, you're going to essentially have segregated flagship public universities. You can try percentage plans, you can try socio-economic factors, you can do all these other things, but the reality is, unless you give a plus to under-represented minorities, they're going to remain extremely under-represented. Unless you move to something like a lottery system, which no school would want to do, because it doesn't want to sacrifice what it perceives of as academic quality.”

Kennedy’s reasoning in the case may be persuasive to California voters, Amar said.

“Faced with the choice between allowing race-based affirmative action, which Kennedy may not really like, versus having schools that are basically devoid of blacks and Latinos, Kennedy couldn't abide the latter of the two options, even if he doesn't like the former very much, either,” Amar said. “That may be a lesson to the people of California, it may be a wake-up call to them, that even though a lot of progress since 1996 has been made, that you still don't have as much representation of historically disadvantaged groups in the UC as you would if you got rid of 209 and allowed campuses to take race into account. “

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