In 1996, Californians voted to ban race and gender preferences in government and education. Ten years later, the chancellor of the state-funded University of California at Berkeley, Robert Birgeneau, announced a new Vice Chancellorship for Equity and Inclusion, charged with making Berkeley more “inclusive” and “less hostile” to “underrepresented minority . . . groups.” This move is just the latest expression of the University of California’s unrelenting resistance to the 1996 voter initiative, in every way possible short of patent violation. Stasi apparatchiks disappeared more meekly after the Soviet Empire’s collapse than California’s race commissars have retreated after voters tried to oust their preference regime.
The last decade in California shows the power, and the limitations, of the crusade for a colorblind America led by Ward Connerly, architect of the 1996 anti-preference initiative. Without a doubt, Proposition 209, as that measure is called, has cut the use of race quotas in the Golden State’s government. But it has also exposed the contempt of the elites, above all in education, for the popular will. “Diversity”—meaning socially engineered racial proportionality—is now the only official ideology of the education behemoth, and California shows what happens when that ideology comes into conflict with the law.
When Prop. 209 passed, a few politicians, such as San Francisco mayor Willie Brown, loudly vowed to disobey it. Most public officials, though, were more circumspect. Doubtless they counted on a highly publicized lawsuit, filed the day after the election, to eviscerate the new constitutional amendment before it affected their operations. A coalition of ethnic advocacy groups and big labor, represented gratis by some of the state’s top law firms, had sued to block the amendment from taking effect. The plaintiffs argued, remarkably, that requiring government to treat everyone equally violated the Equal Protection clause of the Fourteenth Amendment.
The plaintiffs could not have found a more sympathetic audience than Judge Thelton Henderson, one of the federal bench’s most liberal activists. He quickly issued an injunction against Prop. 209, on the grounds that American society is so racist and sexist that only special preferences for minorities and women could ensure their constitutional right to equal protection.
Henderson’s 1996 ruling was the high point of the preference racket’s reception in the courts. The Ninth Circuit Court of Appeals reversed Henderson the next year, declaring that Prop. 209’s ban on discrimination and preferential treatment was fully compatible with the Equal Protection clause—a point evidently not obvious to the crème of the state’s lawyers.
From then on, both state and federal judges would show an admirable respect both for voter intent and for the plain meaning of the state’s new constitutional amendment. Not so California’s bureaucrats and pols. Many chose passive resistance or tried to hide noncompliance under Orwellian name changes: San Jose’s affirmative-action bureaucracy rechristened itself the “Office of Equality Assurance,” for instance.
Ward Connerly estimates that by now, 65 to 75 percent of California’s agencies no longer use race in hiring or contracting—hardly resounding compliance but a huge improvement over the pre-209 era. A pro-preference organization, the Discrimination Research Center, claimed in 2004 that transportation-construction contracts awarded to minority-owned business had dropped 50 percent since 1996 and that the percentage of women in the construction trades had declined by one-third. These figures suggest the extent to which race and gender discrimination had been keeping many noncompetitive enterprises afloat.
California’s university system is a different matter entirely. That diehard center of race and gender obsession has managed to stay out of court (except for one sweetheart suit brought by pro-preference advocates) through fiendishly clever compliance with the letter of the law, while riding roughshod over its spirit. In doing so, university officials have revealed a fatalism about the low academic achievement of blacks and Hispanics that they would decry as rankest bigotry in a 1950s southerner.
After Prop. 209’s passage, UC Berkeley, like the rest of the UC system, “went through a depression figuring out what to do,” says Robert Laird, Berkeley’s pro-preferences admissions director from 1993 to 1999. The system’s despair was understandable. It had relied on wildly unequal double standards to achieve its smattering of “underrepresented minorities,” especially at Berkeley and UCLA, the most competitive campuses. The median SAT score of blacks and Hispanics in Berkeley’s liberal arts programs was 250 points lower (on a 1,600-point scale) than that of whites and Asians. This test-score gap was hard to miss in the classroom. Renowned Berkeley philosophy professor John Searle, who judges affirmative action “a disaster,” recounts that “they admitted people who could barely read.”
The downward trajectory of those students was inevitable, Searle says. “You’d be delighted to find that your introductory philosophy class looked like the United Nations, but that salt-and-pepper effect was lost after six to eight weeks,” he recalls. “There was a huge dropout rate of affirmative-action admits in my classes by mid-terms. No one had taught them the need to go to class. So we started introducing BS majors, in an effort to make the university ready for them, rather than making them ready for the university.” Searle recalls a black studies class before his that was “as segregated as Mississippi in the 1950s.” One day, Searle recounts, the professor had written on the blackboard that a particular tribe in Africa “wore colorful clothing.”
Even though preference beneficiaries often chose the easiest majors—there were, and still are, virtually no blacks and Hispanics in the most competitive engineering and computer science majors, for example—graduation rates also reflected the qualifications gap. The average six-year graduation rate for blacks and “Chicanos” (California-speak for Mexican-Americans) admitted from 1991 to 1997, the last year of preferences, was about 20 percent below that of whites and Asians. The university always put on a happy face when publicly discussing the fate of its “diversity” admits. Internally, however, even the true believers couldn’t ignore the problems. A psychology professor at UC San Diego recalls that “every meeting of the faculty senate’s student affirmative-action committee was a lugubrious affair. They’d look at graduation rates, grades, and other indicators and say, ‘What we’re doing is failing.’ ”
Yet for the preference lobby, a failing diversity student is better than no diversity student—because the game is not about the students but about the self-image of the institution that so beneficently extends its largesse to them. Thus, when “underrepresented minorities” accepted at Berkeley dropped by half in 1998, the first year that Prop. 209 went into effect, and by nearly that much at UCLA, the university sprang into crisis mode. Never mind that the drops at other campuses were much smaller. Berkeley’s then-chancellor, Robert Berdahl, came to Berkeley’s Boalt Law School, recalls a law professor, and demanded that the faculty increase its shrunken minority admissions. When another professor asked how Boalt was supposed to do that consistent with 209, Berdahl responded testily that he didn’t care how they did it, but do it they must. UCLA law professor Richard Sander was on a committee to discuss what could be done after 209. “The tone among many of the faculty and administrators present was not ‘How do we comply with the law in good faith?’ but ‘What is the likelihood of getting caught if we do not comply?’ ” he says. “Some faculty observed that admissions decisions in many graduate departments rested on so many subjective criteria that it would be easy to make the continued consideration of race invisible to outsiders.”
University spokesmen constantly convey the idea that 209 is forcing them to do something unjust. “It’s a hard message to send—persuading kids that they have a place at the university, when we deny so many qualified students,” says administrator Nina Robinson. (Robinson masterfully blends the “unwelcoming” topos with the university’s current line that students who would only be admitted under affirmative action are all “highly qualified.”) But the University of California rejects many white and Asian applicants with credentials identical to those “qualified” underrepresented minorities, and no one accuses UC of being unwelcoming to rejected Asian students with combined SAT scores of 800 and 2.85 GPAs, say. If proportionally far fewer black and Hispanic students qualify for admissions than whites and Asians, the problem lies with the systemic academic weakness of those students, not with the admissions standards. But this is a truth that, post-209, the university has persistently denied.
Only in 1998 did the university’s admissions processes operate without either explicit racial preferences or stealthy surrogates for race. The results were telling: at Berkeley, the median SAT gap shrunk nearly in half, to 120 points; black and Hispanic admits logged an impressive 1,280 on their combined SATs. The six-year graduation rates of this class would increase 6.5 percent for blacks and 4.9 percent for Hispanics, compared with the class admitted two years earlier.
The more pedagogically and socially sound environment that resulted didn’t matter to the race-mongers, however, who flung themselves into their long experimentation with different admissions schemes, with one purpose: “To maintain a racially and ethnically diverse student body,” as former UC associate president Patrick Hayashi wrote in 2005. The first scheme that the university tried was to give an admissions preference to low-income students. This device backfired, however, when it yielded a lot of Eastern European and Vietnamese admits—not the kind of “diversity” that the university had in mind. So the campuses cut their new socioeconomic preferences in half and went back to the drawing board.
Other schools created pretextual institutions in the hope that they would be minority magnets. UCLA’s law school established a specialization in critical race studies, a marginal branch of legal theory contending that racism pervades nearly every category of the law and that writing about one’s personal experiences grappling with that racism is real legal scholarship. College seniors who say that they want to specialize in critical race studies on their UCLA law school applications get a boost in the admissions process: as the school discreetly puts it, a student’s interest in the program “may be a factor relevant to the overall admissions calculus.” In 2002, UCLA rejected all white applicants to the program, even though their average LSAT score was higher than the average score of the blacks who were admitted.
The university as a whole started admitting all students in the top 4 percent of their high school class, regardless of their standardized test scores, hoping that this would net more kids from all-minority schools. The public justification for this practice, which Texas and Florida have also implemented in response to affirmative-action bans, is that getting to the top of one’s class signals the same academic talents regardless of whether your school awards As just for showing up. But a 2005 college board study found that 30 percent of the African-American and Hispanic students with an A average have mediocre SAT verbal scores of 500 or lower. Indeed, while only half of the blacks and Hispanics who rank in the top tenth of their class also score over 600 on either section of the SAT, all the whites in the top 10 percent do. And contrary to the claims of affirmative-action proponents, the evidence is irrefutable that students with 900 combined SATs, say, are far less likely to do well in competitive colleges than students with test scores several standard deviations above that.
None of these new admissions measures produced the numbers of “underrepresented minorities” at Berkeley and UCLA that the diversity ideologues and the ethnic lobbies in the state legislature demanded, however. The legislature’s Latino caucus told the university that more of “their people” at Berkeley and UCLA was the price of budgetary support. Clearly, the university remained too wedded to its old, meritocratic ways to achieve the “critical mass” of minorities that diversity advocates claim is necessary for a sound education. So the university began to “question all criteria, including criteria that have long been regarded as reflecting high academic achievement,” in the words of former associate president Hayashi. Incredibly, it began to ignore entirely its applicants’ objective academic rankings.
For several decades, the university had divided its applicants into two categories: it admitted one half only by objective tests of academic merit, such as standardized test scores and honors classes; it evaluated the other half subjectively, weighing such factors as race, economic status, or leadership. From this tier, where racial preferences had free rein, the vast majority of blacks and Hispanics were drawn.
UC president Richard Atkinson proposed in 2001 that all campuses adopt this new “comprehensive review” process. Under comprehensive review, already in use at diversity-mad Berkeley, perfect 1,600 scores on the SATs would have to be understood “contextually.” They might end up being given the same weight as 1,100s, say, if the 1,600-scoring student had come from a stable two-parent family and had attended a top high school. And 900s on the SATs might count more than 1,600s, if the student with the 900s came from a school with many low-achieving students (virtually synonymous with largely black and Hispanic schools) or if he came from a single-parent home or spoke a foreign language at home. Admissions officers perked up when they read that a student lived in a gang area or had been shot. Tutors in UC outreach programs taught students to emphasize their social and economic disadvantages in their application essay.
Precious few faculty members in the UC system had the guts to oppose Atkinson’s comprehensive-review proposal publicly (though a plurality of professors polled by Roper opposed preferences—in private, of course). Berkeley political scientist Jack Citrin was one of the few who spoke out. Citrin observed that a UC Davis study showed that comprehensive review inevitably decreases the quality of the freshman class. Indeed, average SAT scores for entering freshmen at Berkeley dropped from 1,330 in 1998 to 1,290 in 2001, according to USA Today; and the test-score gap between whites and Asians, on the one hand, and blacks and Hispanics, on the other, widened.
The university found even this criticism too much to tolerate. President Atkinson and his minions went ballistic when they learned that the UC Regents chairwoman had invited Citrin to speak to that body before it voted on Atkinson’s comprehensive-review proposal. An Atkinson aide threatened to engineer a faculty vote of censure against the chairwoman if she did not cancel Citrin’s appearance. She held her ground, but not without further tongue-lashing from Atkinson.
A 2002 Wall Street Journal article provided eye-opening details about how comprehensive review worked in practice. UCLA had accepted a Hispanic girl with SATs of 940, while rejecting a Korean student with 1,500s. The Korean student hardly lived in the lap of luxury: he tutored children to pay the rent for his divorced mother, who had developed breast cancer. But he went to a highly competitive school with a high Asian population in Irvine, while the Hispanic girl came from a school filled with failing students in overwhelmingly Hispanic South Gate. Students from South Gate got into UCLA and Berkeley at twice the overall acceptance rate. Indeed, an analysis of UCLA admissions rates in the four years following Prop. 209—even before comprehensive review—found that going to a school with a high-achieving student body decreased one’s admissions chances sevenfold. An engineer’s son with near-perfect SATs from University High in Irvine, for instance, was rejected from both Berkeley and UCLA.
It’s remarkable in the post-209 world how explicitly university administrators speak about their racial intentions—and get away with it. Thus, a 2003 report by the UC president’s office lauded comprehensive review, the 4 percent automatic admissions mechanism, and the preferences for tutoring-program attendees for boosting the admissions chances of minorities, even as other groups faced decreased admissions. As long as the mechanisms that administrators use for engineering a certain racial outcome are ostensibly colorblind, they appear safe.
Even if race were not motivating admissions decisions in violation of 209, it is ludicrous to imagine that it is a favor to let someone into an elite institution where most students scored much higher on the SATs. But preference advocates deny that standardized tests measure anything relevant about academic aptitude or preparedness. The standard line at UC is that “everyone whom we admit is highly qualified”—which just boils down to a tautology: if we admit you, you are by definition highly qualified.
Yet the argument that objective tests reveal no meaningful distinctions among students contains implications that preference advocates don’t want to accept. If everyone above a certain minimum floor is equally qualified for elite institutions, Berkeley prof Jack Citrin asked during the debate over comprehensive review, why not admit people by lottery? A lottery would reflect the diversity of the applicant pool exactly and would admit more minorities. But it would also lower academic quality. “If you think they don’t care about that, of course they care,” said Citrin. “God forbid Berkeley should resemble [less elite] UC Riverside!”
Citrin’s lottery proposal went nowhere, of course. Race-conscious schools are perfectly content to use objective tests of aptitude to judge Asians and whites, and even to rank black and Hispanic students within their own group. But if you suggest using objective standards to evaluate students on a common universal scale, those standards suddenly lose all their validity.
Affirmative-action defenders have yet another explanation for the poor SAT performance of minorities. Low-income applicants from schools with underperforming student bodies, they contend, have never gotten the chance to develop their academic talents and so should not be held to the same standards. A 900 for them is the equivalent of a 1,400 for a more privileged applicant. Colleges can compensate for deficiencies in K—12 education, says Rashid, “if you devise a process that identifies applicants with the willingness to succeed. Initially they need services, but by their third year, they’re really screaming along.” Yet while undoubtedly some ill-taught high school students end up trouncing their peers in college, such cases are not the norm. And college admissions have to be about averages.
The Post-209 Faculty-Hiring Fig Leaf
In the area of faculty hiring, Prop. 209 has boosted the already burgeoning “identity studies” industry. Administrations are busily extending new faculty lines to every last “Institute for the Study of Race, Diversity, and Difference,” on the safe assumption that many of those new hires will improve the campus “diversity” profile. And new identity-based projects are springing up all the time. Berkeley’s Center for Race and Gender, created in 2001, is currently bankrolling the “Colorism Project,” for example, to study “discrimination that structures inequality by creating social evaluations based on skin tone.”
Programs once explicitly race-based have been repackaged as “diversity” initiatives. The UC president’s postdoctoral fellowship program no longer says that it is looking for minority and female Ph.D.s but rather candidates whose work will “enhance the diversity of the academic community.” A recently created president’s postdoctoral fellowship is targeted at Ph.D.s working in the fields of queer theory, feminist studies, HIV/AIDS, Latino/a studies, and international migration, for example, in honor of a deceased former fellow whose research explored the previously uncharted territory of how “queer migrants of color . . . have transformed notions of queerness, racialization, migration, and citizenship in the United States.”
The university might respond that its massive color-coding enterprise merely complies with federal equal-employment regulations. But UC goes far beyond whatever bean counting that the Equal Employment Opportunity Commission regs may require. University president Robert Dynes announced last June that every faculty member and every department should be held accountable for “promoting . . . diversity,” a commitment that should be quantified, monitored, and reported. Dynes expects every campus to develop “resource-based incentives to back up the commitment to faculty diversity.” He has embraced the most nauseating clichés of corporate diversity-speak, posting on his website for university-wide use a “Self-Assessment Tool” for determining whether departments are “achieving a Culture of Inclusion.” According to the “Tool,” academic departments in the primitive “Pre-Awareness” stage are “unaware bias is an issue for diverse groups.” Their leadership is “mainly silent on the importance of faculty diversity,” and “diversity elements do not appear in planning documents.” As a department reaches the fourth phase of diversity consciousness, “Intentional Inclusion,” “leadership consciously appoints diverse academic leaders.” At the fifth and highest stage of diversity consciousness, the “Culture of Inclusion,” “valuing diversity is naturally woven into decision making, resource allocation, and social interactions.”
In 2004, a groundbreaking study of affirmative action in law schools blew away every rationale for racial double standards ever put forth. UCLA law professor Richard Sander found that law schools that admit black students with lower GPAs and Law School Admissions Test scores than their nonblack peers—almost all law schools, in other words—actually lowered those students’ chances of passing the bar. Because of the “mismatch” between their academic preparedness and the academic sophistication of the school that has bootstrapped them in, the preference beneficiaries learn less of what they need to pass the bar than they would in a school that matched their capabilities. Far from increasing the supply of black lawyers, affirmative action actually decreases the diversity of the bar.
The data that Sander offered about black performance in law school were stunning. After the first year, 51 percent of black students are in the bottom tenth of their class, compared with 5 percent of white students. Two-thirds of black students are in the bottom fifth of their class. Blacks are twice as likely to drop out as whites, and only 45 percent of black law school graduates pass the bar on their first try, compared with 80 percent of white grads. Blacks are six times as likely to fail the bar after multiple efforts.
Law school is the perfect place to evaluate whether aptitude tests such as the LSAT and SAT do or do not predict academic success. College gives no objective exit exam that measures what students actually learned, and grades are imperfect measures, since courses vastly differ in difficulty, and grade inflation is rampant. Law school grades, however, often calculated blind and on a curve, provide a more reliable gauge, and the bar remains the humanities’ and social sciences’ most objective exit exam.
The correlation between black law students’ rock-bottom LSATs and their performance in law school and on the bar exam is overwhelming. Sander’s study demolishes the two mainstays of the preferences regime: the arguments that objective aptitude tests do not anticipate minorities’ academic performance; and that admitting affirmative-action beneficiaries to schools where their academic skills are below the norm is in their interest.
In the wake of Sander’s paper, preference advocates are wildly casting about, like sailors on a sinking ship, to find aspects of legal education that they can toss overboard to try to improve black performance. Boalt professor Liu suggests that law schools might jettison time-limited exams, for instance. But don’t lawyers need to think quickly under pressure, especially in a courtroom?, I asked. “What percentage of lawyers make courtroom arguments?” he responded. Timothy Clydesdale, a College of New Jersey sociologist, argued in response to Sander’s article that law professors’ method of publicly grilling students on their understanding of the law intimidates black students. Never mind that litigators can expect far rougher treatment from judges. (Clydesdale did not answer a request to explain why he thinks black law students are uniquely sensitive to aggressive questioning.)
Sander’s research empirically explodes the argument that affirmative action benefits its recipients. But the practice of pushing unprepared black and Hispanic students into elite schools raises a logical question as well: If it would be so injurious to their life chances to attend a school that they can handle academically, however less elite, why should any student suffer the fate of going to Cal State Northridge instead of Berkeley, say, or Santa Clara Law School instead of Boalt? Why not close down those allegedly career-destroying second- and third-tier schools, so that everyone can get an elite degree?
Another question I never got answered was whether minorities were doing everything that they could to qualify themselves for the university. Even supposing that California were inequitably distributing its educational resources, are minorities grasping such opportunities as are available to them? Or does a culture of underachievement—truancy, failure to do homework, indifference to learning, and so on—also impede the proportional representation of blacks and Hispanics? I learned that nothing riles an affirmative-action proponent more than the suggestion that academic achievement is an individual, as well as a social, responsibility.
Why not encourage the same commitment to learning in underrepresented minorities as in Asians, a group that once suffered discrimination? I asked Patrick Hayashi, the former UC associate president. Though only 12 percent of California’s population, Asians make up an astounding 48 percent of Berkeley’s 2005 freshman class. “A lot of Asians are deeply committed to education,” Hayashi advised me, “but a lot are deeply involved in gangs, drugs. Be careful how you generalize.”
Doesn’t the stigma against “acting white”—i.e., achieving academically—hold back minority achievement? I asked Bob Laird, Berkeley’s ex—admissions chief. “There’s some truth to the allegation,” he said, “but you can’t blame the victim. It’s really shallow [to say] that this is just a matter of cultural indifference. There are a lot of reasons why that cultural indifference is in place. You can’t simply say, ‘Okay, here are the opportunities, why don’t you just do it?’ You need to overcome the cultural damage that has led to that indifference.”
The proportion of minorities in the ten-campus UC system as a whole has now returned to what it was before Prop. 209 passed, but even so, the preference advocates are not satisfied. Their determination to outfox the voters is entering a still more aggressive phase. A conference in October previewed their future strategies. If they succeed, not a single colorblind test of merit will be left standing.
The fruit of the conference, held by the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity at Boalt Law School, was a report calling for the end of the last speck of objectivity in UC’s entrance requirements. Currently, only the top 12.5 percent of the state’s high school grads are supposedly eligible for a university slot, a proportion determined by a numerical formula already so manipulated as to allow students with rock-bottom SATs to qualify. The conference report’s jaw-droppingly audacious proposal is to replace the formula with comprehensive review, so that subjective considerations of “social disadvantage” and every other surrogate for race and ethnicity would dictate who makes up the top 12.5 percent of the state’s students.
In a touch of supreme irony, the report also urges that the SAT II—the content-based counterpart to the aptitude-focused SAT I exam—no longer be required. Just five years earlier, ex—UC president Atkinson had called for the replacement of the SAT I with the SAT II, hoping to reduce the ethnic test-score gap, since Spanish-speaking Hispanics are all but guaranteed a perfect score on the SAT II Spanish test. Accordingly, the university reduced the SAT I’s weight and doubled that of the SAT II. But now, diversity advocates say, the SAT II must also go.
While the report laid out a sneaky method for the final evisceration of Prop. 209, the Boalt conferees also called overtly for its extinction by lawsuit. And rather than repudiate this slap in the face to California’s electorate, UC president Robert Dynes merely offered tactical suggestions for how best to deal the blow. “I surely want to win the first [lawsuit], because if we lose the first one, we will take two to three steps back,” Dynes said, according to the Contra Costa Times. He added that the changing demographics of California—that is, the explosion of the Hispanic population—would eventually lead to the initiative’s repeal, even without a lawsuit.
Berkeley chancellor Birgeneau was less circumspect in displaying his moral superiority over the electorate. “I think 209 is profoundly wrong, morally wrong,” he told the enthusiastic conferees, the Contra Costa Times reported. “We can’t have a truly fair system until 209 is reversed.” He repeated this claim to California magazine in November: Because of the “reality of race in contemporary American society,” any institution will be “de facto . . . discriminating,” he said, unless it employs racial preferences. Obviously, this is a man whose moral acuity allows him to see things that the voters cannot. “You know, my underlying motivation is a very simple one,” he told the Berkleyan in October, “a deep-seated desire to see people treated fairly and equitably. It’s not more complicated than that.”
Yet for all the evasions of the political and educational elites, the growing anti-preference push, with initiatives contemplated in several more states in 2008, could be one of the most important populist movements of recent years. Racial manipulation, while not eliminated from California, has been greatly reduced, a sea change that never would have happened without Prop. 209. One goal of the movement—the elimination of the academic achievement gap by setting a single standard of achievement for all to meet—remains elusive. But Ward Connerly’s courageous pursuit of a government that ignores race is delivering on the most fundamental promise of the American Constitution: equal treatment for all.