California voters failed to repeal ban on affirmative action. What signal does that send the rest of the nation?
When Proposition 16 did not pass in California in November, leaving a ban on affirmative action in place, Naomi Waters was dismayed but not surprised.
“So this is where we’re at?” the third-year student at the University of California-Riverside recalled thinking of California's political leanings.
“It's disheartening where we are currently, but then looking nationally, it isn't really that much of the surprise," said Waters, the Racial Justice Now chair of the University of California Student Association.
Proposition 16 would have removed the ban in the California Constitution on considering race and sex in government hiring and education. In other words, it would have reinstated a practice called affirmative action, most notably at the state's public colleges.
The defeat of Proposition 16 marks one of many attacks on affirmative action over the years, both at the polls and in the country's courts. But in recent years, courts have endorsed measures to account for race in college admissions.
Another showdown over affirmative action is looming: A case against Harvard University, in which plaintiffs accuse the university of discriminating against Asian American students, is likely to go to the U.S. Supreme Court, which is dominated by conservatives.
Voters' views held steady over 25 years
Despite the courts' evolution on affirmative action, California voters' views on the subject are nearly unchanged over the past 25 years. The ban on affirmative action was first approved by 54% of registered Californians via Proposition 209 in 1996.
Nearly 25 years later, 56% of Californians voted to keep the ban in place.
Voting amid national outcry over racism: Californians consider bringing back affirmative action
Activists and universities shout that people of color need special consideration, given the systemic effects of racism in America.
The ban created “a fundamental opportunity gap” for students of color at universities, Chancellor Timothy White of California State University told EdSource in October.
“They’ve had less opportunity for reasons that are often beyond their control,” such as financial issues, the quality of their schools or being the first member of their family to go to college, White said.
When the ban on affirmative action was implemented in 1998, the total enrollment of Black and Hispanic students at the University of California nosedived by about 800 students per year, a study out of UC-Berkeley reported in August. The researchers said the ban deterred thousands of students from applying.
Nevertheless, affirmative action policies have been on the voter chopping block for decades.
In 1996, California became the first state to ban affirmative action in government. Twenty-four years since, 10 states have banned affirmative action – though Texas’ ban was reversed in 2003. All but four of those states’ bans were decided by voters.
These policies have been upheld nationally by a series of Supreme Court decisions dating back to 1978.
Supreme Court upholds affirmative action, for now
Colleges, saying diversity is important to their educational climate and mission, try to find ways to consider race as part of admissions. The Supreme Court upheld their approaches.
"Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” the court said in a 4-3 decision in 2016 written by Associate Justice Anthony Kennedy, who retired in 2018.
Americans' views on affirmative action, despite Proposition 16’s failure, may be changing. Sixty-one percent of respondents told Gallup in 2019 that they favored affirmative programs for minorities, up from 54% in 2016.
Part of the reason that Proposition 16 failed may have been the narrative around its campaign, "the idea of 'overturning a previous referendum' as opposed to a new or renewed effort to ensure opportunity and access for historically marginalized groups," said Michal Kurlaender, professor of education policy at the University of California-Davis.
Overturning the ban was seen by many as a chance to address systemic racism and limited opportunities for Black and Latino Californians, who make up the majority of the state.
The ban may have failed because of different framing, said Natasha Warikoo, professor of sociology at Tufts University.
“When people are asked, 'Should there be affirmative action to increase diversity?' most people say yes,” she said. “But when they're asked whether policy should take race into consideration, people are more likely to say no.”
The discord around affirmative action could reflect California’s relationship with race, such as its history of police brutality, James Taylor, professor of politics at the University of San Francisco, told USA TODAY in October, before the vote.
“Underneath a veneer of liberalism is a view of Black communities as being a nagging, unwelcome presence," he said.
The state isn’t alone this year in the conflict surrounding affirmative action. The U.S. Justice Department sued Yale University last month for alleged discrimination against Asian American and white students. It's similar to Harvard's case, a lawsuit that alleges the school discriminated against Asian American students to boost African American and Hispanic enrollment. A federal appeals court sided with Harvard University on Nov. 12 in reinforcing its affirmative action policies.
The same group that challenged Harvard’s consideration, run by Edward Blum, a politically conservative legal strategist, is challenging admissions policies at the University of North Carolina-Chapel Hill. The trial in that case began in mid-November.
The reason voters and plaintiffs keep rejecting affirmative action, Kurlaender said, comes down to perceptions around college admissions.
"The courts have preserved universities’ clear intent to create a more diverse and inclusive educational environment for the benefit of learning for all students," she said. "The voters see admissions, particularly at selective institutions, as a zero-sum game where there are losers and winners." That doesn't strike voters as fair, she said.
Promoting diversity without affirmative action
Despite Proposition 16’s failure to make a dent in affirmative action policy in California, the state's universities aren't giving up, said Luoluo Hong, the associate vice chancellor who oversees student affairs and admissions at California State.
“We've operated now for quite some time without access to affirmative action,” Hong said.
Operating without it forced the system to adapt and create admissions policies that allowed officials to target low-income and first-generation students. Often, these students are underrepresented racially in admissions.
Outside of admissions, she said, the school system established programs to foster belonging for underrepresented minorities.
When Proposition 16 went before voters, “we had hoped that a door had opened, and it just didn't,” she said.
Last year, the UC system admitted the most diverse class in state history, even under a ban on race-based admissions, according to preliminary data.
First-generation students made up 45% of those admitted and low-income students 44%. That class was 36% Latino, 35% Asian American, 21% white and 5% Black. The rest were Native Americans, Pacific Islanders or those who declined to state their race or ethnicity.
Waters hopes that as the state evolves into one where people of color make up the majority and younger folks become eligible to vote, this year will not be the last that California considers affirmative action.
“California is rapidly changing,” she said. “This is going to pass eventually.”
Contributing: Richard Wolf and Marco della Cava