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Equity & Diversity

Will the Ban on Affirmative Action Hurt Diversity? Look to California

By Mark Walsh — December 04, 2023 11 min read
A student listens to instruction during an 8th grade science class at Aptos Middle School on January 27, 2020 in San Francisco.
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When the U.S. Supreme Court last June ended affirmative action in college admissions as it had long been practiced, one rhetorical battle in the briefs and opinions involved the lessons to be learned from Proposition 209 in California, the 1996 ballot initiative in that state broadly prohibiting racial preferences in education.

“After California amended its State Constitution to prohibit race-conscious college admissions in 1996, freshmen enrollees from underrepresented minority groups dropped precipitously in California public universities,” Justice Sonia Sotomayor wrote in the main dissent in Students for Fair Admissions v. President and Fellows of Harvard College. “To this day, the student population at California universities still reflects a persistent inability to increase opportunities for all racial groups.”

Sotomayor cited a friend-of-the-court brief filed in support of racial preferences at Harvard and the University of North Carolina by the president and chancellors of the University of California system. It documented that the decline in enrollment among underrepresented minority groups was 50 percent or more at the state system’s most selective institutions, including the University of California, Berkeley, and the University of California, Los Angeles.

Justice Clarence Thomas, who joined the majority to strike down racial preferences in admissions at Harvard and UNC, took a different lesson from Proposition 209.

“The University of California purportedly recently admitted its ‘most diverse undergraduate class ever,’ despite California’s ban on racial preferences,” Thomas wrote in a solo concurrence, citing a Los Angeles Times story reporting 2021 enrollment figures at the UC system’s nine campuses, which showed that Latinos made up 37 percent of the overall freshman class, Asian Americans were 34 percent, whites were 20 percent, and Black students 5 percent.

“Race-neutral policies may … achieve the same benefits of racial harmony and equality without any of the burdens and strife generated by affirmative action policies,” Thomas wrote.

The justices’ observations highlight sharply differing and often complicated scholarly analyses of the affirmative action bans in California and some eight other states. Scholars and legal experts are still debating whether the Proposition 209 era in California offers lessons for the nation in the wake of the Supreme Court ruling, not just in the college-admissions process itself but also in harder-to-measure characteristics of the motivations and aspirations of K-12 students.

“There’s an active concern that Black and Hispanic high school students won’t work as hard in high school absent affirmative action, since they may believe that even if they do, they won’t get into a selective university,” said Zachary Bleemer, an assistant professor of economics at Princeton University and a research associate at UC Berkeley’s Center for Studies in Higher Education.

There are also concerns, even alluded to by Sotomayor in her dissent, that the Harvard/UNC decision will have a negative impact on diversity in the teaching force, though there seems to be little research evidence that Prop. 209 had a significant effect in California, which has a highly racially diverse corps of teachers.

“Education is not one of the top ten majors that Black or Hispanic students either flowed out of or flowed into as a result of Prop. 209,” said Bleemer.

What Prop. 209 did to student achievement

Linda Darling-Hammond, a professor emerita at Stanford University’s Graduate School of Education and the president of the Learning Policy Institute in Palo Alto, Calif., agreed that Prop. 209 not only reduced the number of underrepresented minority group members at California’s top public universities, but it trickled down to the high school level.

“In terms of young people thinking about their college-going, Prop. 209 certainly had an effect on that,” she said.

Conservative legal analysts and scholars who opposed affirmative action in admissions have a different take on the lessons to be drawn from California’s experience.

“Certainly, after Prop. 209 was passed in California, we saw something that didn’t look very good,” said Devon Westhill, the president and general counsel of the Center for Equal Opportunity, a Washington-based organization that promotes colorblind policies.

“At UC Berkeley, the number of minority students dropped precipitously, and that was not a good thing,” said Westhill, who led the civil rights office in the U.S. Department of Agriculture under President Donald Trump. “But we soon realized that those individuals no longer being admitted to the UC Berkeley flagship campus were becoming distributed more appropriately to other campuses in the UC system. What the data show is those minority students’ GPAs rose, their six-year graduation rates rose, and few of them were changing their majors.”

The education community around the nation is still digesting a reality that Californians have had to accept for decades, Westhill said, which is that “the era of overt racial preferences is over.”

How Prop. 209 impacted college admissions in California

Proposition 209 passed with 54.5 percent of the California vote in 1996. Though closely identified with college admissions, the measure was much broader, barring the state and local governments, including school districts, from discriminating or granting preferential treatment on the basis of race, sex, ethnicity, or national origin.

The University of California regents had voted to end race-conscious admissions within the UC system in 1995, on a motion by Ward Connerly, a regent who would go on to champion Prop. 209 and similar measures in other states. After its passage, the California ballot initiative survived multiple legal challenges and soon forced colleges, school districts, and other government entities to change a range of policies.

In 2020, California voters considered Proposition 16, which would have overturned Proposition 209 and once again allowed the consideration of race in education. After a heated battle, the measure was defeated, 57.2 percent to 42.7 percent.

Much of the research on Prop. 209 has centered on its effects on college admissions in the state. Bleemer, the Princeton economist, wrote a 2020 research paper published by the UC Berkeley higher education center that studied the impact of Prop. 209 on outcomes for all University of California system applicants from 1994 to 2002. It looked at their enrollment, course performance, major choice, degree attainment, and wages into their mid-30s.

The findings “provide the first causal evidence that banning affirmative action exacerbates socioeconomic inequities,” Bleemer wrote.

After Prop. 209, enrollment of underrepresented minority applicants to the UC system “sharply shifted away from UC’s more-selective Berkeley and UCLA campuses, causing a cascade of students to enroll at lower-quality public institutions and some private universities,” Bleemer said.

Ending affirmative action policies did not lead the university’s underrepresented minority applicants to earn higher grades in challenging courses, but it did cause them to become less likely to earn science, technology, engineering, and mathematics (STEM) degrees and any graduate degrees, and undergraduate degree attainment declined among lower-testing underrepresented minority applicants, the study found.

“These poorer educational outcomes in turn contributed to a 5 percent average annual decline in applicants’ wages throughout their 20s and early 30s, which resulted in a decline in the number of early-career [underrepresented minority] Californians earning over $100,000 by at least 3 percent,” Bleemer wrote. “Prop 209 also discouraged thousands of additional academically-competitive [underrepresented minority] students from sending applications to public research universities in the first place.”

Bleemer argues that the findings undercut the “mismatch theory” championed by many opponents of affirmative action, which argues that racial preferences in admissions harm minority students who are admitted to institutions for which they are otherwise academically unqualified.

Gail Heriot, a law professor at the University of San Diego and a longtime opponent of affirmative action, expressed a different view of mismatch theory and the impact of Prop. 209 in a recent appearance at the annual meeting of the conservative Federalist Society in Washington.

“Yes, there were fewer underrepresented minority students at the flagship Berkeley campus” after Prop. 209, she said at a Nov. 10 panel discussion on the Supreme Court’s affirmative action decision. “But on several other UC campuses, all of which are elite, the numbers actually increased.”

Just before Prop. 209’s implementation, there was only one African American freshman student out of a class of over 3,000 at the University of California, San Diego, who earned an honors-level GPA of 3.5 or better, Heriot said. By contrast, 20 percent of white students had done so. Right after Prop. 209 went into effect, the rate at which African American freshmen earned honors increased to 20 percent.

“Moreover, the number of African American students whose GPA put them in academic jeopardy collapsed,” she added, going from 15 percent to 6 percent. “Boom. That was exactly what we were expecting and exactly what we got.”

“If the research into mismatch is correct, and I believe it is, we would have more African American scientists, engineers, and physicians and likely more African American lawyers and college professors if more African American students had rejected the preferential treatment they received,” Heriot said. “That’s a thumping good reason to reject racial preferences.”

Texas offers another perspective on impact

One recent research effort examined the effects of an affirmative action ban in a state where it was prohibited for several years before being reinstated.

In 1996, in a case involving the University of Texas at Austin law school, a federal appeals court struck down race-conscious admissions. That was the Hopwood v. Texas decision by the U.S. Court of Appeals for the 5th Circuit, in New Orleans.

In 2003, in a case involving the University of Michigan law school, the U.S. Supreme Court upheld the narrow consideration of race when done as part of a holistic review of an individual’s application for admissions. Soon after that decision in Grutter v. Bollinger, Texas quickly reinstated the consideration of race at most of its public colleges and universities.

In a draft paper this year, three researchers used Texas’ student-admissions data to study the effects of the reinstatement of affirmative action on the college aspirations of underrepresented minority high school students.

The study found that underrepresented minority group members in Texas increased their number of applications to selective schools relative to whites, closing 13 percent of the racial gap, as well as their grades and days present in high school.

“Our findings suggest that students adjusted their human capital in response to changes in the perceived returns on investment in college admissions,” says the paper by Mitra Akhtari, Natalie Bau, and Jean-William Laliberté.

“We see very clearly that” underrepresented minority students expanded where they applied to attend college after affirmative action was restored in Texas, “and they improved their educational outcomes in high school,” said Bau, an associate professor of economics and public policy at UCLA.

The paper says there was not enough valid data and other research challenges that kept them from applying their analysis to when affirmative action was prohibited for Texas institutions in the 1996 Hopwood ruling. But Bau said the logical conclusion is that such a prohibition has the opposite, deleterious effect on minority aspirations.

“If you look at our paper, the lesson you might take away is that” the Supreme Court’s imposition of what is effectively a nationwide ban on race preferences in admissions “would reduce the provision of effort in secondary schools by underrepresented minorities,” she said.

How affirmative action relates to teacher diversity

Darling-Hammond of Stanford, who is also the president of the state board of education in California, believes that Prop. 209 hampered the state in multiple ways. Besides its well-documented effects on college enrollment of underrepresented minority students, the initiative has hampered the state and school districts in their efforts to reduce segregation in K-12 schools.

“The chilling effect on California to make race-conscious decisions to equalize educational opportunities started with Prop. 209,” she said.

The one area where the measure may have had a limited effect is on the state’s teaching force, Darling-Hammond said.

“California has a much more diverse teaching force, with 50 percent of those entering the field being of color,” she said.

Justice Sotomayor observed in her dissent in the Students for Fair Admissions case that race-conscious admissions have been critical to providing more equitable public services, including in education.

“Greater diversity within the teacher workforce improves student academic achievement in primary public schools,” Sotomayor said in the dissent, which was joined by Justices Elena Kagan and Ketanji Brown Jackson.

And while Sotomayor said the majority decision would be “devastating,” she stressed that “society’s progress toward equality cannot be permanently halted.”

“Diversity is now a fundamental American value, housed in our varied and multicultural American community that only continues to grow,” Sotomayor said. “The pursuit of racial diversity will go on.”

Coverage of strategies for advancing the opportunities for students most in need, including those from low-income families and communities, is supported by a grant from the Walton Family Foundation, at www.waltonk12.org. Education Week retains sole editorial control over the content of this coverage.
A version of this article appeared in the December 13, 2023 edition of Education Week as Will the Ban on Affirmative Action Hurt Diversity? Look to California

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