California law banning affirmative action predates President Trump’s rollback

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The Trump administration announced Tuesday that it would reverse affirmative action policies established under the Obama administration.

Former president Barack Obama’s policies, which outlined ways that schools could legally use race as a factor in admissions decisions, have not been in effect in California since Proposition 209, or Prop. 209, passed in 1996, banning race as a consideration in admissions.

“The Trump administration’s decision to remove the guidance on considering race and ethnicity in admissions decisions (which do not have the effect of law) do not affect UC,” said UC Office of the President, or UCOP, spokesperson Dianne Klein in an email. “The university has not used affirmative action since Proposition 209 went into effect during the 1990s.”

Though the UC system does seek to promote “qualitative diversity” through alternative methods such as increasing enrollment from low-income families and families with little college experience, these efforts are far less effective at creating ethnic diversity than race-conscious admissions, according to a 2003 UCOP report about the effects of Prop. 209.

After Prop. 209 came into effect, enrollment of underrepresented groups, especially Black and Latinx students, dropped severely. At UC Berkeley, the percentage of Black and Latinx students enrolled was roughly halved when Prop 209 came into effect, and the percentage has still not recovered in the years since.

These numbers fail to reflect the diversity of California, where percentages of Black and Latinx graduating high school seniors are far higher than their UC Berkeley enrollment percentages.

“If we want a level playing field, we have to act,” state Sen. Nancy Skinner, D-Berkeley, said. “Exclusivity is really designed to keep certain segments of our communities at an economic disadvantage and thus an educational disadvantage.”

While the Obama administration’s affirmative action policies did not mandate states or schools to use affirmative action, they provided guidelines on how to legally use race as a factor in admissions, taking into account Supreme Court rulings that could allow schools to consider race as one of many factors.

The rollback of these policies also lacks the enforcement of law, but serves as the official position of the federal government and returns affirmative action policies to those of the George W. Bush administration.

The debate over race-conscious policies will continue in the U.S. Supreme Court, which is set to hear a case in which Asian American students claim that they were denied admission to Harvard University because of their race. This case, which may relitigate the use of race-conscious policies in admissions, comes in light of the retirement of Justice Anthony Kennedy, who has supported affirmative action in the past.

“The Supreme Court may or may not be influenced by what (President Donald) Trump says, but it’s a message that this administration does not support affirmative action,” Skinner said. “I would guess that we would find that whatever justice Trump ultimately appoints will not support affirmative action.”

The last related decision by the Supreme Court, Fisher v. University of Texas at Austin, involved a white woman suing the school, claiming that she was denied because of her race. UC submitted an amicus brief for the case, claiming that the UC’s race-neutral policies had led to a decrease in diversity.

“UC’s experience thus sheds light on the practical obstacles faced by universities that seek to promote diversity, while also furthering other crucial educational objectives, but are barred from any use of race as a factor in admission decisions,” read the brief.

Ultimately, the court upheld race-conscious admissions policies, with Justice Kennedy writing the decision.

New Supreme Court rulings will help decide how race can be used as a factor in admissions, according to Skinner. Regardless, Klein said in an email that the university will continue to practice race-neutral admissions as long as Prop. 209 remains in effect.

“We’ve been on the front line of fighting some of Trump’s policies. We’ve also been on the front line for setting the precedent for some of these policies,” Skinner said. “Now, we’re working to rectify many of our own problems.”

Contact Madeleine Gregory at [email protected] and follow her on Twitter at @mgregory_dc.