California voters declined to lift the state’s prohibition on public colleges considering race and ethnicity in admissions, suggesting affirmative action will remain a nationally divisive concept in postsecondary education.  

Despite California’s heavy Democratic leanings, its government agencies have been barred from using race-conscious policies in public education, employment and contracting since the mid-1990s.

Proposition 16, which lawmakers in June greenlighted to be on the ballot, would have restored that ability, but voters rejected the measure.About 56% of them, more than 6.4 million people, turned it down during the election, according to unofficial results.

Civil rights organizations and progressive legislators have long attempted to repeal the affirmative action ban, but some Republicans and Asian American activists have thwarted those efforts, arguing Asian students would otherwise be disadvantaged in admissions. 

Affirmative action proponents, meanwhile, believe the ban holds back people of color, creating a system in which they are underpaid and underrepresented on college campuses. 

Pundits and supporters thought the demonstrations over systemic racism that roiled the nation in the spring and summer would sway the electorate to reinstate race-conscious admissions. 

Proposition 16 had also earned endorsement of leaders from the University of California System and the California State University System, as well as those from the state’s high-profile political establishment, including U.S. Sen. Kamala Harris and Gov. Gavin Newsom, both Democrats.

Yet it never gained significant popularity, polls show

COVID-19 and the contentious election cycle likely distracted voters, said Victor Goode, a City University of New York School of Law professor who specializes in affirmative action. California also had several measures on the ballot, which could have made it difficult to keep track of the issues, he said.

The result could also be because of the abundant misinformation concerning affirmative action, said Julie J. Park, a higher education professor at the University of Maryland, College Park. 

Park said the public often thinks of the policy as fulfilling a racial cap or quota, which the U.S. Supreme Court has ruled illegal. Proposition 16 also wouldn’t hinder Asian students’ enrollment, she said.

The wording of the ballot question could have also confused voters, Park said, by asking them to get rid of something that on its face appears positive. The constitutional amendment in question says California can’t discriminate against or give preferential treatment to individuals or groups based on factors such as race, sex and ethnicity.

“People not as familiar with it would say, ‘Why would we repeal something that says the state cannot discriminate?'” Park said. 

Impact of affirmative action ban

California’s moratorium on race-conscious admissions emerged in the early 1990s, after two academics, aggrieved by the state’s growing diversity and economic turmoil, crafted a constitutional amendment blocking affirmative action. The state’s Republican party and its governor at the time, Pete Wilson, took up the issue, seeking to use it as a springboard to help him secure the GOP presidential nomination. 

His bid failed, but California became the first state to bar race-conscious practices. At least eight other states don’t allow affirmative action in admissions. 

Black and Latinx enrollment then dropped among UC campuses, particularly the elite ones, after the prohibition. The share of admitted UC freshmen from underrepresented groups declined from around 20% in 1995 to 15% by 1998, according to system data. 

Nixing affirmative action had long-term effects, causing the system’s first-year applicants from underrepresented minority groups “to cascade into lower-quality public and private universities,” states a recent study from the Center for Studies in Higher Education at UC Berkeley. The average underrepresented applicant’s wages also declined 5% annually between ages 24 and 34, it notes.

UC considers underrepresented minority students to be those who are American Indian, Black or Hispanic/Latino.

When asked for comment on the vote, the system directed Education Dive to its statement on Proposition 16 released Wednesday, which points out its enrollment still does not match California’s demographics. UC will continue to encourage underrepresented groups to apply to the campuses, according to the statement. 

Luoluo Hong, Cal State’s associate vice chancellor for student affairs and enrollment management, told Education Dive in a statement Wednesday that the number of Black, Latinx and Asian/Pacific Islander students within the system increased from last fall. Hong did not cite exact figures, but noted Native American enrollment dropped, which the system would examine.

“If Prop 16 does not pass, it only means that we will not have access to one set of tools,” Hong said. “(I)t doesn’t mean that we will not still be able to utilize our strategies and initiatives to support access and success for all students and particularly for those who are Black, indigenous or people of color.”

Changes ahead for race-conscious policies

California voters’ rebuff of affirmative action policies signals that nationwide scrutiny of them will likely persist. 

The state is influential in higher education, Park said. And the vote’s outcome could resonate for other jurisdictions in the same way that decisions by UC and Cal State to move away from admissions exams affected other colleges, she said.

Affirmative action has also been subject to recent legal challenges, buoyed by the Trump administration’s interest in ending it. Supreme Court rulings have backed the use of race-conscious admissions, including in a 2016 decision siding with the University of Texas at Austin. 

Still, the U.S. Department of Justice sued Yale University in October alleging it discriminates against White and Asian applicants. And the department supported an appeal in a similar lawsuit against Harvard University. 

A federal judge declared last year that Harvard’s admissions system was not prejudicial, but a subsequent appeal sets up the case to potentially rise to the high court. Legal observers predict that with the addition of justice Amy Coney Barrett, its newly cemented conservative majority could strike down affirmative action.

Goode, the CUNY professor, said the case could reach the bench around fall 2021. 

“In many ways, the civil rights community lost the public debate about affirmative action years ago, once it was labeled as reverse discrimination,” Goode said. “We were always really on the defensive to explain what it was and why it was legally justified.”

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