UC files ‘friend of the court’ brief regarding affirmative action

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The University of California filed a “friend of the court” brief last week urging the U.S. Supreme Court to strike down a Michigan voter initiative banning the consideration of race in admissions to the state’s public universities.

In an amicus curiae brief resurrecting the university’s own struggle with race-blind admissions, UC President Mark Yudof and the university’s 10 chancellors addressed Schuette v. Coalition to Defend Affirmative Action. The case involves race-blind admissions at public universities — policies both Michigan and California currently have.

The case examines Proposal 2, a Michigan ballot initiative passed in 2006 that bans the consideration of race in admission to state-funded institutions. The U.S. Court of Appeals for the 6th Circuit deemed the proposal unconstitutional last November, and the Supreme Court will consider that decision next month.

This marks the second Supreme Court case to consider affirmative action this year. Its decision in this case, however, could have monumental consequences for the UC system. UC officials and others hope the case will bring new light to the university’s continued struggle to maintain diversity since the 1996 passage of Proposition 209, a California voter initiative that prohibits state institutions from considering race, ethnicity or gender in admissions.

“What happens in California if the court upholds the 6th Circuit and strikes down Michigan’s proposition?” said Kristen Holmquist, a lecturer at UC Berkeley School of Law. “Then, arguably, Prop. 209 is also unconstitutional. Then the schools would be free to use race-based or race-related considerations in admissions again. The amicus brief makes it very clear to me that they would.”

Affirmative Action

Holmquist, who specializes in constitutional law, said it is surprising that the Supreme Court is considering this case so soon after ruling on Fisher v. University of Texas at Austin, which challenged race-conscious admissions processes. The court returned the case to the lower courts in June, requesting that they re-evaluate UT Austin’s affirmative action program with stricter scrutiny.

Schuette v. Coalition to Defend Affirmative Action, she said, is likely to elicit a more straightforward verdict from the court. It will deal more specifically with a state’s right to amend its constitution to ban race-conscious policies.

UC spokesperson Dianne Klein also said the Supreme Court ruling will inevitably cast judgment on California’s affirmative action policies, calling the Michigan proposal and Prop. 209 “almost identical.”

After the passage of Prop. 209, the UC admission rate for underrepresented minority students dropped from 54.6 percent to 20.2 percent between 1995 and 1998, according to the amicus curiae brief. The university has since struggled to attract and maintain underrepresented minority students, Klein said, adding that this case could put race-conscious admissions back on the table for California’s public universities.

Still, Berkeley Law professor Amanda Tyler speculated that the court will uphold Michigan’s proposal, overturning the 6th Circuit ruling.

“If the court reverses, as many people think they are likely to do, they will be in effect saying that something akin to ‘Prop. 209 is fine,’ ” Tyler said. “That would give the law greater legitimacy.”

Tony Le, executive director of the Bridges UC Berkeley multicultural center, said Prop. 209 has kept the UC system from attaining the diversity it desires.

“Affirmative action serves as a tool — it’s a way to provide equity,” Le said. “Diversity is a key to higher education.”

Libby Rainey is the lead higher education reporter. Contact her at [email protected] and follow her on Twitter @rainey_l.