Affirmative action: A history of contention

Imminent US Supreme Court case places issue back in spotlight

Kristen Loken/File
Boalt Hall student Cyrus Guray marches on July 24th, 1995 to protest the UC Board of Regents decision to end affirmative action.

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Editor’s note: This is the first in a four-part series about affirmative action at the University of California. It was prompted by Fisher v. University of Texas at Austin, a case that will come before the U.S. Supreme Court this week debating the role of race in the admissions process. 

The role of affirmative action in the university admissions process will once again be brought before the U.S. Supreme Court and into the national spotlight this week, representing the next step in a long history of debates that has often found itself played out at the University of California.

Fisher v. University of Texas at Austin, which is set to begin opening arguments Wednesday, was brought against the university by a white student who claims her rejection from UT Austin was due to the university’s policy of considering race in the admissions process.

The University of California entered the debate in August when UC President Mark Yudof and the chancellors of all 10 UC campuses filed an amicus curiae brief in support of the University of Texas —  a move that is emblematic of a tension that has long existed in the University of California system. Though the so-called friend of the court brief establishes the UC system’s support for UT Austin and its acknowledgement of race in undergraduate admissions, the university cannot formally acknowledge race in its own admissions decisions.

The university initially found itself part of the national affirmative action debate in 1978 with the case Regents of the University of California v. Bakke. In that instance, the U.S Supreme Court found that using racial quotas in the admissions process was unconstitutional but that considering race in university admissions to admit more minority students was permissible under the Constitution. Race continued to be used as a factor in the admissions process at many universities, including the University of California.

The issue came more immediately to the UC Berkeley campus in the mid-1990s, when the UC Board of Regents met to discuss the policy of using race as an admissions criterion.

That discussion came about due to the efforts of the Cook family, whose son, James, had been rejected from UC San Diego’s medical school but was accepted into Harvard University’s. The family approached legislators and UC officials with statistics they argued showed that race was too large a factor in the admissions process and the reason their son, who is white, had been denied admission.

The Cooks ended up speaking to then-UC Regent Ward Connerly, now an outspoken critic of affirmative action.

“They had approached a lot of people, and at that time, affirmative action, or ‘race preferences,’ as I call it, was an untouchable subject,” Connerly said. “For reasons of political correctness, people did not want to get involved in the issue, and I felt at least obliged to investigate it.”

Connerly approached the UC Office of the President as well as chancellors of the UC campuses to verify the Cooks’ statistics. The chancellors agreed that race was used as a factor in the admissions process but argued it was worthwhile in the pursuit of diversity, according to Connerly. While Connerly grew increasingly uncomfortable with his findings, many chancellors felt differently.

“During my time in the UC Berkeley administration, which extended from 1989-2000 … there was strong support for affirmative action,” said former UC Berkeley executive vice chancellor and provost Carol Christ.

According to the book “Entrepreneurial President” by Patricia Pelfrey, now a senior research associate at the Center for Studies in Higher Education at UC Berkeley, in January 1995, Connerly made efforts to add the issue of affirmative action to the agenda of the next regents meeting. This led then-UC president Jack Peltason to initiate a review of what role race was playing in the university’s admissions process.

The review showed that the university’s policies were largely the result of a 1988 policy instituted by the regents that sought to create levels of diversity on UC campuses that mirrored those found within California, according to Pelfrey’s book.

Still, many UC Regents were not entirely convinced that practices of affirmative action were in the best interest of the university, according to Connerly. So, in July of 1995, the Regents voted to pass Special Policy-1, which said that the University of California could not use race, ethnicity or gender as criteria for admission to the university beginning Jan. 1, 1997.

This decision was later affirmed by the citizens of California when the issue was brought to a vote during the November 1996 election as Proposition 209, which amended the state’s constitution to prohibit preferential treatment by the state in public employment, education or contracting to any group or individual on the basis of the same general criteria as noted in Special Policy-1.

Students’ reactions to the UC Regents’ policy and Prop. 209 were varied. Students at the time recognized that there was a large, vocal group in opposition to SP-1, but the student body was, in actuality, split on the issue.

“There were a lot of protests, a lot going on, and there were a lot of speakers who spoke up in support of the regents and the policy to eliminate affirmative action that was led by Ward Connerly,” said Andrew Wong, who was ASUC president from 1994 to 1995.

The UC Berkeley administration responded with other efforts to maintain the diversity of the student population in a post-affirmative action era, Christ said.

“In the wake of the passage of SP-1 … the administration focused on developing alternative policies and programs that would sustain the diversity of the student body,” Christ said.  “We gave particular attention to outreach to high schools with large percentages of African American and Hispanic students.”

Though Prop. 209 officially ended the university’s consideration of race in admissions in 1997, affirmative action has remained a contentious topic at UC campuses. In a largely symbolic move in 2001, the regents unanimously voted to rescind SP-1. Perhaps the most notable example of that controversy in recent years was a bake sale hosted by the Berkeley College Republicans last fall.

The bake sale, which sold goods on a tiered pricing system based on race, was in protest of California Senate Bill 185, which would have allowed California public universities to consider a number of nonacademic factors such as race, gender and nationality in the admissions process in order to increase campus diversity. Gov. Jerry Brown vetoed the bill in October 2011.

Fisher v. UT Austin will take up the issue again, with the Supreme Court considering once more whether race belongs in the admissions process — a matter that has the potential to rekindle familiar debates on the same topic within the state of California and at its universities.

Contact Megan Messerly at [email protected].