Affirmative Action May Be Down But it’s Not Out

“The people who supported (Prop) 209 were terrified at the increasing number of Latinos in California and the notion of parity and equality scared them to death,” said Eva Paterson, president and founder of The Equal Justice Society.

By Peter White

NASHVILLE, TN — In November, California voters will decide whether to repeal Proposition 209, a 1996 ballot measure that added a paragraph to the state constitution prohibiting use of affirmative action in public education, public employment, and public contracting. 

The affect of the measure was immediate. There was a dramatic drop in the number of Latinos and Blacks entering the UC University system. In the year after Prop 209 passed, only one Black student entered UC Berkeley’s law school and that was only because the student was admitted the previous year and had taken a deferment. 

Today in California, African American and Latino students make up 60% of 12th graders in the state but only 29% of undergraduates in the UC system.

“That’s a measure of the disparity we continue to see in the state of California that we are not able to address aggressively because of Proposition 209,” said Thomas Saenz, president and general counsel of Mexican American Legal Defense and Education Fund (MALDEF).

As discouraging as those numbers are in California, the University of Tennessee didn’t admit any African American students prior to 1952. In 2014-15, 1,802 (7%) of the university’s 27,410 students were African American.

At its flagship campus in Knoxville, out of 5,254 freshmen admitted in the Fall 2019, 255 (5%) were Latino, 218 (4%) were Asian, 302 (6%) were Black, and 4151 (81%) were White. 

Blacks made up 11% of 12th graders in Tennessee public schools in 2019 but just 6% of UT Knoxville admissions. So in 2019, Blacks were underrepresented in UTK’s freshman class by 5%. 

What is Affirmative Action?

The 5th, 13th, 14th and 15th Amendments outlaw discrimination. They didn’t end it. 

In 1961 President John F. Kennedy issued an executive order banning discrimination in federal contracts. He ordered contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.”

The Revised Philadelphia Plan, implemented in 1969, was the first federal policy of race-conscious affirmative action. It set goals and for integrating and diversifying the city’s workforce. 

Affirmative Action was a way to ensure fairness and provide equal opportunity for everyone. The moral principle underlying the idea is doing right by making restitution for a past wrong like slavery and its Jim Crow aftermath, or simply doing right moving forward.

But beginning in 1977 with the Bakke decision, the Supreme Court considered four education cases that struck down college affirmative action admissions programs. The Supremes and federal appeals courts have also decided a number of employment and contract cases that revoked affirmative action programs based on quotas. The majority voted that the law must protect against reverse discrimination in the workplace, education, and federal contracts. 

Thus the courts have generally ruled that the moral imperative to even the playing field with race or gender quotas does not make them legal. This judicial theory turns the idea of a protected class on its head because it protects members of the discriminating class at the expense of its victims. Conservative judges have made things worse for ethnic minorities and women. In addition, their legal activism has spilled over into matters of voting rights, elections, and political campaign contributions, all of which hurt minorities. 

Saenz said 2020 has been unprecedented because of the pandemic, the ensuing economic recession, and a reinvigorated Black Lives Matter movement following the murder of George Floyd. 

“What has been a common theme in all this experience is a greater discussion nationwide and recognition of the enduring ongoing effects of systemic injustice and discrimination,” Saenz said.

Eva Paterson, president and founder of The Equal Justice Society, said the entire country saw the murder of George Floyd and many white Americans took the blinders off their eyes.

“We know from LA Times exit polls that a super majority of voters of color voted ‘No’,” said Thomas Saenz, president and general counsel of Mexican American Legal Defense and Education Fund. Even so, Proposition 209 passed by 55%, ending affirmative action enrollment programs at the University of California in 1996.

“We’ve heard nonsensical comments like ‘I don’t see color’.  That’s absurd. ‘We’re in post-racial America’. That’s absurd. ‘Racism is over.’ That’s absurd. By seeing a man murdered for 8 minutes by a police officer, people really got it,” Paterson said.

Since then she said people have been talking about systemic racism. She said some people pay lip service to ending it but Proposition 16 actually deals with it.

“One of the ways our communities get the bad impacts of systemic racism is that we don’t have sufficient political power. We have the numbers but we don’t have the money to contribute to campaigns, to have lobbyists, so we do not get our interests adequately taken care of by the political system. This is part of systemic racism,” she said.

Paterson said that if Prop 16 passes more people of color in California would get into the UC university system. 

“We all know that if you have a better education you get a better job, you have more income, your kids go to better schools, you actually get health care so your life is longer.

Similarly with employment, if you have a good job all the things I just talked about flow to you and your family and your community. Looking at race and gender will allow more people to get promoted.”

Asian Americans face a bamboo ceiling even though many do well educationally.

Paterson noted that there is not one U.S. medical school that has an Asian American dean although there are many Asian American doctors. 

“Despite the fact that many of us do very well, there are overt biases, there are unconscious biases, that result in us not getting ahead,” Paterson said.

Vincent Pan, executive director, Chinese for Affirmative Action, leads a 51-year old social justice organization in San Francisco.  He said they have long stood for affirmative action when it wasn’t controversial. 

“In order to change the status quo you have to take action and be proactive,” he said. Pan noted that 67,000 Asian American students will go to K-12 California schools with no Asian American teachers. Recruiting more of them with an affirmative action program would help. Such programs are not permitted under Proposition 209.

In the area of employment, Pan said Asian American women make 75 cents on the dollar paid to white men and they are not represented in leadership and management.

“Quotas are illegal across the country. The Supreme Court has been really clear about that,” said Vincent Pan, executive director, Chinese for Affirmative Action. However, he noted affirmative action is legal in the private sector.

“The solution to that discrimination is not to ban affirmative action. It’s actually to have more effective race conscious programs like affirmative action,” Pan said. 

He said diversity of college admissions officers, better cultural competency training, and addressing implicit bias would be possible if Prop 16 overturns Prop 209.

“Simple saying that ‘oh, Asian Americans face discrimination in higher education so lets all just stick our heads in the sand’ against the discrimination that affects all communities of color, is simply not the solution,“ Pan said.

Would poverty-based affirmative action programs work? You might think that would get around the Supreme Court ban on racial quotas.

“The problem is there are more poor white people and it won’t result in desegregation based on race…so using a class-based form of affirmative action does not work,” Paterson said. 

“What affirmative action based on gender and race does, it looks to the totality of African Americans or Latinos or Asian Americans or women or Native Americans and brings us all along.”

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