Affirmative Action: SCOTUS May End Race-Based College Admissions and What That Means for California

California has banned use of race as a criterion in college admissions since 1996, but SCOTUS may go further.

PUBLISHED JUN 7, 2023 9:59 A.M.
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Protesters demonstrate against the Supreme Court’s landmark decision on affirmative action in 1978.

Protesters demonstrate against the Supreme Court’s landmark decision on affirmative action in 1978.   University of California, Bancroft Library / Wikimedia Commons   Public Domain

Back in 1973, Allan Bakke was a 33-year-old former Marine, Vietnam vet and married father of two who had a burning desire for a career change. He’d been an engineering major at the University of Minnesota and in 1967, after his four years in the Marines, he took a job at NASA’s Ames Research Center, in the heart of the region that would soon be known as Silicon Valley.

Five years later, Bakke would become the national face of white backlash against the policy of “affirmative action,” the practice of including race as a criterion in university admissions and employment hiring. Initially, the point of affirmative action was to address and move toward rectifying the inequities caused by long histories of racial discrimination, promoting a society based on equal opportunity.

In the landmark 1978 United States Supreme Court decision that would give Bakke his place in history, the court’s plurality opinion held that race was a legitimate factor to consider in college admissions, as a way to promote diversity on campus—a goal that the court believed led to better education for all students.

Universities in the United States had a long history of racial exclusion. Some—mainly in the South—prohibited Black students entirely until forced by the federal government to integrate, mostly in the 1950s and early 1960s. The situation, while subtler, wasn’t much better at other “elite” universities. As late as 1959 the entering class at Harvard University contained a mere 18 Black students, just 1.5 percent. At the time, that was the highest percentage in the history of the iconic university, which was founded in 1636.

Edward Blum: Sworn Enemy of Affirmative Action

U.S. Supreme Court decisions on two cases set to be handed down in June are expected to end or at least sharply curtail affirmative action throughout the country. Previously, the court has upheld affirmative action policies or made only minor tweaks in almost 30 cases, including the Bakke decision.

Both of the cases about to be decided were brought by a group calling itself Students for Fair Admissions—one case against Harvard University, the other against the University of North Carolina. The activist group is headed by Edward Blum, a former stockbroker who ran unsuccessfully for Congress from Texas in 1990, and since then has devoted himself to ending affirmative action through the courts.

Supreme Court decisions set to be handed down in June are expected to end affirmative action throughout the country. Previously, the court has upheld affirmative action policies or made only minor tweaks in almost 30 cases.

Blum is often portrayed in the media as a courageous, lone crusader taking on a powerful system. He has been described in the press as “a one-man show” and “just a regular guy” who “defies odds.” In reality, however, Blum is a “Visiting Fellow” at the American Enterprise Institute, one of the country’s most heavily funded right-wing think tanks.

Blum’s Students for Fair Representation and his other nonprofit, Project on Fair Representation, have received millions in cash from prominent donors, including $3 million from Donor’s Trust, a powerful but little-known organization described in one media investigation as the “dark-money ATM of the right,” channeling hundreds of millions to attacks on the labor movement, public schools, climate science—and affirmative action.

SCOTUS Cases Pose Threat to Diversity

Blum’s latest cases present no significant new arguments against affirmative action that haven’t been presented in previous cases. In fact, arguments in the Harvard case—according to a report by the Guardian newspaper—rely heavily on a 2012 paper by Silicon Valley tech investor Ron Unz, publisher of the Unz Review website who according to the Anti-Defamation League “has embraced hardcore anti-Semitism.” But the court briefs in Blum’s lawsuit do not mention the highly problematic nature of Blum’s writings. In his 2012 article, according to the Guardian, Unz claimed that Jewish applicants were given preferential treatment at Harvard despite supposedly being less qualified. In addition to its anti-Semitism, according to statisticians who examined the article, Unz's arguments simply lacked merit from a mathematical viewpoint.

Blum’s Students for Fair Admissions—the plaintiff in both cases—is simply counting on the fact that the court is the most right-wing that it’s been since the 1930s, with a six-justice “conservative” majority including three Donald Trump appointees.

Since the 1978 Bakke decision, colleges have rarely cited the need to fix inequality as a justification for race-based admissions policies, instead emphasizing the need for a more diverse student body. Some of the best evidence that affirmative action promotes diversity—and that banning it is a disaster for diverse campuses—comes from right here in California, where voters outlawed affirmative action policies in 1996, passing Proposition 209 with 55 percent of the vote.

(Eight other states have also passed bans on affirmative action policies since California did it: Arizona, Florida, Idaho, Michigan, Nebraska, New Hampshire, Oklahoma and Washington.)

In the first 24 years of the affirmative action ban, the number of Black first-year students at California State University dropped by half, from 8 percent to 4 percent, according to a report by the education site EdSource, even as the number of Black high school graduates increased from 21,000 in 1997 to 25,000 in 2018.

Native American enrollment in the CSU freshman class peaked in 1995, the year before Prop 209 passed, at 1.23 percent, but was down to 0.2 percent in 2018. Latinx students felt the greatest impact of all. Just 29 percent of incoming students in 2019 belonged to that group, even though they comprised 52 percent of all high school graduates, according to the EdSource report.

At UCLA, Black students comprised 7 percent of the entire student body prior to Prop 209. Just two years after the ban passed, that percentage dropped to under four. And at UC Berkeley, the 2021 freshman class was 6,945 students, but a mere 258 (3.7 percent) were Black and just 27 were Native American.

In oral arguments, which the Supreme Court heard in October 2022, the conservative justices expressed skepticism about whether affirmative action policies remain necessary, with multiple justices asking when campus diversity would be deemed to be achieved. Justice Clarence Thomas, whose acceptance at Yale Law School resulted from its affirmative action program, questioned whether diversity was good for education at all.

A Brief History of Affirmative Action

The phrase “affirmative action” has been employed with regard to race since 1961 when President John F. Kennedy, less than three months into his term, issued Executive Order 10925. That order mandated that government contractors “take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin.” Kennedy’s order was superseded by a stronger version issued by his successor, Lyndon Johnson.

A 1968 Supreme Court decision set the stage for the Bakke case 10 years later. The landmark 1954 SCOTUS case Brown v. Board of Education ruled that racial segregation in schools violated the Constitution. But as monumental as that decision was, the Supreme Court offered no remedies for actually seeing to it that schools were integrated.

Some of the best evidence that affirmative action promotes diversity comes from California, where voters outlawed affirmative action policies in 1996.

Many school districts, including one in Virginia’s New Kent County, adopted a “freedom of choice” approach. Some schools that were predominantly white would exist, as would counterpart schools that were primarily Black. But neither would be technically segregated. Students of any race would be allowed to attend either school.

Several parents and students sued, saying that “freedom of choice” was a highly ineffective plan for integrating schools. When the case, Green v. County School Board of New Kent County, got to the Supreme Court in 1968, all nine justices agreed with the parents and students. The ruling held that schools must propose concrete plans to dismantle the system of segregation.

In response, some universities including the University of California system established racial quotas, reserving a number of spots in each incoming class specifically for Black and other minority students.

As a result, some white university applicants believed that they had been rejected for admission to universities because places in an incoming class that they felt they were qualified to obtain were going to Blacks instead, for no reason other than their race.

One of those aggrieved applicants was Allan Bakke.

The Bakke Case

Even as he worked in a comfortable, well-paying job as a NASA engineer, what Bakke really wanted to be was a doctor. In fact, entering the medical profession, even in his mid-30s, became something of an obsession. While continuing to work at Ames, he took night courses at various local colleges, completed his pre-med requirements and volunteered to work at El Camino Hospital (now called El Camino Health) in Mountain View. 

In 1972, he applied for admission to medical school. Unfortunately, his mother-in-law became ill, requiring him to leave the state so he wasn’t able to complete all of the required paperwork. According to a New York Times account, records at UC Davis indicate that he would likely have been accepted—and history would be different.

Thanks to Prop 209, even if the Supreme Court were to abolish affirmative action, California’s public universities wouldn’t see any real difference. 

His completed application was considered in 1973—and rejected. He was also rejected at 10 other schools, but it was the UC Davis rejection that seemed to sting him the most. UC Davis med school set aside 16 of its 100 slots in each year’s class for non-white applicants, and that outraged Bakke. He sent a letter of complaint to the school stating that he was “compelled to pursue a different course of action.”

Bakke received a reply from Peter Storandt, who, according to the Times story, “tacitly encouraged” Bakke to take legal action against the California university system. After he applied again and was rejected again—records show that his complaint played a role in this second rejection, according to the Times—Bakke did just that.

Five years later, Regents of the University of California v. Bakke went to the US Supreme Court, where it became a landmark decision both for and against affirmative action. Though the court voted 8-1 in Bakke’s favor, requiring UC Davis to admit him to its med school, there was no majority opinion written. The pivotal vote was Justice Lewis Powell, who had been appointed by Republican President Richard Nixon six years earlier, but who frequently took a center path between the court’s liberal and conservative justices.

It was fitting, then, that Powell’s plurality opinion split the difference on affirmative action. Writing for the court, he agreed with four justices who ruled that strict racial quotas, such as the 16 set-aside spots at UC Davis med school, were unconstitutional. But Powell also agreed with four other justices who felt that race was a legitimate factor to consider in the admissions process, as long as it was one of several factors and not the only one.

Affirmative Action in California Today

The ability to use race as one admissions criterion remains in place today—except in California and the eight other states that have banned affirmative action. Thanks to Prop 209, even if the Supreme Court were to abolish affirmative action altogether, California’s public schools and universities wouldn’t see any real difference.

But how far will SCOTUS go? One question that will be answered only when the decisions come down in the two Students for Fair Representation cases is whether the court will rule that affirmative action policies must be banned outright, even at private colleges, a possibility that could further suppress minority student enrollment in universities such as Stanford, USC, Santa Clara University and the other 82 private higher education institutions in the state.

The decision could also affect areas of private and public employment. Nor may it be limited to affirmative action based on race. In California and other states where affirmative action is banned, universities have tried to use criteria such as socioeconomic status and geography as proxies for race. Will the Supreme Court ban those criteria as well? Only the decisions, expected by the end of June, will tell.

And what became of Allan Bakke? His entry into UC Davis in 1978 set off protests around the Sacramento area, and across the country. But Bakke kept a low profile, issuing few, and largely anodyne, public statements. His classmates appeared to accept him wholeheartedly, and when he graduated in 1982 he got “the wildest and most sustained applause” of any graduate at the ceremony,  according to a Sacramento Bee account.

He moved back to Minnesota where he went into practice as an anesthesiologist and where he remains to the present day, keeping out of the public eye—something that may become more difficult for him when the Supreme Court hands down its latest affirmative action rulings.

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