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Supreme Court should consider lessons
from California in review of affirmative action
in university admissions

by Andrea Guerrero
San Diego, California

The U.S. Supreme Court is presently considering whether to review a legal challenge to the use of race-conscious admissions policies at the University of Michigan. If it chooses to review the case, it will be the first time in 25 years that the Court has considered the issue. The last time was in 1978 when a divided Court upheld the use of race-conscious admissions as a permissible and necessary means to achieve diversity in a highly competitive admissions environment. Because several federal district and appellate courts have recently differed on, among other things, whether affirmative action is still necessary, the Attorney Generals of ten states on Friday urged the Supreme Court to review the matter and to provide guidance on this important issue.

In evaluating whether affirmative action is still necessary in higher education, the Supreme Court has a telling case study in California. In 1995, the University of California made history by becoming the first public university to end race-conscious admissions. Forced to adopt "race-blind" measures, highly competitive schools such as Boalt Hall, the law school at Berkeley, suffered a dramatic decline in the admission and enrollment of underrepresented minorities. In the first year of "race-blind" admissions, allegedly race-neutral criteria cut the numbers of Latinos by three-quarters and zeroed out African Americans, Native Americans, and Southeast Asians. In five years time, a student body which had been 25 percent underrepresented minority became 9 percent, converting one of the most diverse schools in the country into one of the least.

Seeking to rectify a historical lack of minorities, the law school implemented affirmative action in 1968. Like other schools across the nation, Boalt was then predominantly white. Though the school had enrolled over 6,000 students over the years, only 22 had been African American, 20 Latino, and far fewer Asian or Native American. Nationally, minorities at the time constituted little more than 1 percent of the law school population and more than a third of those were enrolled in historically black schools. The presence of a single minority in an "integrated" law school was exceptional.

Highly competitive schools such as Boalt recognized the disadvantage suffered by minorities in a numbers-based admissions policy and looked to other information to indicate an ability to succeed. The affirmative action program they designed at Boalt was immediately successful; in the first year, the law school enrolled more African American and Latino students than it had graduated in all its prior years. In subsequent years, the school became racially diverse and academically vibrant and ranked among the top law schools in the country. Diverse graduates who were trained in a diverse setting went on to become professional, civic, and political leaders. Of these graduates, many broke through the color line, becoming some of the first nonwhite law firm partners, state and federal court judges, congressional representatives, public interest organization leaders, and law school professors. Many more challenged stereotypes and broadened perspectives, and still more became role models to a new generation of minority students who hoped to follow in their footsteps.

Affirmative action was constructed to be a temporary measure that would end when racial and ethnic bias was eradicated and diversity occurred naturally in the admissions process. But in California -- and now in other states that have followed suit such as Texas, Washington, Georgia, and Florida -- affirmative action programs have been cut short. As a result, highly competitive schools such as Boalt have been unable to achieve and maintain the same level of racial and ethnic diversity as was once possible under affirmative action. Experiments with socioeconomic criteria have not helped. Socioeconomic criteria, though valuable in creating socioeconomic diversity, do not wholly address disadvantage based on race and ethnicity. Moreover, because the sheer numbers of poor whites (who still make up the largest racial group in the United States) far exceed the numbers of poor minorities (even though minorities tend to be disproportionately poorer than whites), a class-based policy is no substitute for a race-based one.

There is no proxy for race. Where diversity does not occur naturally, highly competitive universities must be able to continue to consider race if they are to select, educate, and graduate a student body that is representative of and responsive to a multiracial society. If they are not able to do so, the opportunity and understanding gaps that exist between different racial and ethnic groups will widen and we will all suffer the consequences.

Andrea Guerrero is a member of the last class to be admitted under affirmative action at Boalt Hall. She is the author of the recently published book, Silence at Boalt Hall: The Dismantling of Affirmative Action (University of California Press, September 2002).

Published in In Motion Magazine, November 4, 2002