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California’s fight for diversity in a non-affirmative action era

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SEPTEMBER 26, 2023

There were plenty of indications that the Supreme Court’s right-leaning court would vote at least 6-3 against affirmative action. California voters were decades ahead of the Court on this when they elected to outlaw affirmative action, passing Proposition 209 by a 54-46% margin. This stance was reinforced when state legislators offered a ballot measure to repeal Prop. 209; this one, known as Proposition 16, lost by a 57-43% vote.

California’s courts have regularly evaluated the constitutionality of race-conscious programs designed to rectify past discrimination. Prop. 209, also known as the California Civil Rights Initiative, was a ballot measure passed by California voters in 1996. It amended the state constitution to eliminate affirmative action programs and prohibit state and local governments from considering race, ethnicity and gender in public employment, education and contracting decisions.

In Hi-Voltage Wire Works, Inc. v. City of San Jose, the California Supreme Court used Prop. 209 to strike a San Jose program that required city contractors to prioritize the bids of subcontractors from marginalized populations. The California Court referenced the U.S. Supreme Court’s progressive affirmative action decisions but relied on the dissent rather than the majority opinions. California exceeded the scope of its role by choosing to examine whether the city contract program violated the U.S. Constitution instead of assessing whether it violated the state constitution, and thus implied its strong opposition to affirmative action programs. Accordingly, although marketed as a civil rights reform bill, Prop. 209 was a perversion of equal protection as it further marginalized minority groups.

Following its 2000 decision in Hi-Voltage Wire Works, the California courts stood in stark contrast to the U.S. Supreme Court, which at the time had tolerated affirmative action. Nonetheless, the Supreme Court qualified its liberal holdings. In the 2003 landmark case Grutter v. Bollinger, Justice Sandra Day O’Connor suggested affirmative action should not be perpetual and might not be needed in 25 years. This year, her anticipation materialized: the Supreme Court overturned affirmative action in higher education and encouraged universities to advance diversity by other means.

Given the U.S. Supreme Court’s conservative majority and the reluctance of the California electorate to repeal Prop. 209, race-conscious programs outside of these contexts may offer a more promising outlook. For example, California’s Reparations Task Force calculated that eligible Black Californians could be owed up to $1.2 million. Opening California’s eyes to the legacy of systemic racism is one thing, but determining whether such programs are constitutional is another. Under the Fourteenth Amendment, a state or federal race-conscious policy could be enacted only if it passes “strict scrutiny” — that is, if it meets a compelling government interest that is narrowly tailored through the least restrictive means available.

First, California would have to prove that remedying systemic racism is a compelling interest. There is no reason to believe that the U.S. Supreme Court would declare any form of reparations constitutional, except for in exceedingly specific cases. Nonetheless, UC Berkeley Law’s Dean Erwin Chemerinsky predicts that the current conservative majority will likely point to subsequent legal reforms such as the 1976 Fair Housing Act or the 1977 Community Reinvestment Act as evidence of mitigating governmental accountability, and thus try to sever the connection between past policy and current destitution.

Further, even if California demonstrates a compelling interest in addressing systemic racism, it must also prove that reparations are the narrowest and least restrictive means available. The Court will scrutinize whether race-neutral alternatives — like a class-based program — could achieve the same goals. However, this approach would not be narrowly tailored: it risks over-inclusiveness by overwhelmingly including low-income White families who haven’t suffered systemic racism, while underserving wealthier Black families who have experienced systemic racism.  Surviving strict scrutiny at this stage is challenging, as reparations may reach individuals who neither require nor merit them while excluding deserving ones.

Although race-conscious university programs are meaningfully compromised at the state and nationwide level, local efforts to remedy past discrimination should persist. Nearly two decades of trial and error after the enactment of Prop. 209, California found ways to increase minority representation. For example, the UC system’s outreach to low-income students and the removal of standardized test scores increased admissions for racial minority groups. In addition, UCLA participates in “intrusive recruiting,” which involves collaborating with local schools and Black churches, and engaging in community events like the Taste of Soul festival to scout talented students of color for a college pipeline. 

Just as California’s public universities have done, universities across the country should nix standardized testing requirements, give greater weight to application essays about how a student’s race has influenced them and engage in active recruitment through current student, alumni and faculty networks. California’s creative grassroots movement recognizing the importance of affirmative action may ultimately be a guiding force against discrimination across the nation. Though California may have been the first to scale back a progressive policy, it also positioned itself as a pioneer in seeking a resolution.

Insia Zaidi is a J.D. candidate at the UC Berkeley School of Law, holds an M.A. in Urban Education, and formerly taught middle school math in Compton, CA. She is also an NYC-based DJ. Contact the opinion desk at [email protected] or follow us on Twitter.

OCTOBER 04, 2023