The Case for Affirmative Action

The Case for Affirmative Action

I am one of twenty-eight Black students in the Class of 2021 at UC Berkeley, School of Law. That is out of a class of over 330 students. The class above mine had ten Black students. In 1997, the first year a class at Berkeley Law would experience the ramifications of Proposition 209, which made it illegal for public institutions to use affirmative action admissions policies, zero Black students enrolled. The single Black student who started in 1997 was a deferral from the last class admitted using affirmative action policies.

This election season, Californians must approve Proposition 16 in order to ensure California’s government and public institutions can “discriminate against or grant preferential treatment to persons on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.” Proposition 16 would undo Proposition 209. Its passage would not create racial quota systems, which the Supreme Court, in University of California v. Bakke, deemed unconstitutional, but would make it possible for state offices to consider applicants’ identities when making decisions about where resources are allocated and access is granted.

Proposition 209 was the brainchild of Ward Connerly, a Black former regent of the University of California. It is premised on the idea that the law is colorblind and should be applied in a colorblind fashion, a sentiment more than one Supreme Court justice (including the only Black justice, Clarence Thomas) shares. Connerly is fighting against affirmative action this year just as fiercely as he did in 1996. “I believe we would win by a landslide once we let people know what affirmative action is really about,” he told The Wall Street Journal (whose editorial board came out against the measure). Opponents of affirmative action believe that because the civil rights acts of yesteryear have been implemented, there is no need for continued government action to eradicate systemic racism. That is what Proposition 209 then and Proposition 16 now are about: whether the government should continue to work to address systemic inequality.

In a recent interview with the Sacramento Bee, Connerly described his opposition to affirmative action by likening life to a competition. He “would submit that we have a system of competition and that we prepare ourselves for the fact that there will be unequal outcomes based on race. If we want to make sure that everyone has an equal shot at competing, I’m with you there . . . .” Proposition 16 asks voters whether people have an equal opportunity at competing or whether we have an equal opportunity at winning.

A no vote on Proposition 16 supports the vision of a singularly meritocratic America. Opponents of affirmative action take for granted that different races will achieve different outcomes without interrogating the reasoning. A no vote requires a belief in a colorblind society where all individuals—regardless of race, sex, etc.—are provided equal opportunities at success. It also implicitly requires a belief in bootstrapping, which Martin Luther King, Jr. warned against in 1967. Both bootstrapping and meritocracy are founded in racist mythologies where an individual succeeds due to work ethic alone. Success in spite of oppressive systems is endemic to this version of the American dream.

A no vote turns this logic into an argument about how academic credentials best predict capacity for success once admitted. Students denied admission to a more prestigious UC “could attend a school where their chances of success were greater.” Regardless of affirmative action policies, this argument belies an unwillingness or inability of universities to funnel resources to admitted students who need them. Much like the debate around need-blind admissions, affirmative action policies are only a start on the path to equity. Getting the students on campus is the first step; investing in their success is the second.

Often, people assess an applicant’s success without considering the steps that an applicant had to take to get there. Against the framework of traditional, merit-based thinking similar to Darwin’s model of survival of the fittest, it is difficult to allocate resources based on well-documented inequalities. An uneven playing field means that those who succeed with racial privilege are afforded opportunities with no interrogation of the racial privilege that likely contributed to their success; it likewise ignores the fact that a Black woman, who achieves similar success, was not afforded the same racial privilege as the White man. This is not to say that White men do not have to work, nor is it to say that there are not Black women who have privileges some White men do not. It is to say that a vote against Proposition 16 would keep in place current mechanisms that make it illegal to contextualize an applicant. A no vote means the voter believes hard work is rewarded in a colorblind way; a person’s identifiers could play no explicit role in consideration.

Voting against affirmative action requires a belief in the fairness of not only laws, but also society. It means that because the laws are colorblind, so, too, are the people who enforce them. It is, at the very least, a vote in favor of the Trump administration’s ban on racial sensitivity training for federal contractors. A vote against affirmative action ignores our assumed collective motive towards liberty and justice for all, when it is clear American systems are designed to support the few. I am reminded of an image circulating from this year’s Black Lives Matter protests: “When you don’t ‘see color’ … you can’t see patterns.”

A yes vote on Proposition 16, on the other hand, acknowledges that systemic oppression still exists in California and that state offices should do something to address it.

Proposition 209 did nothing to engender a more equal education system. A 2020 study showed that the initiative left White and Asian students untouched while simultaneously decreasing success rates for Black and Latinx students. Within two years of the measure’s passage, the number of Black resident Californians enrolled at Berkeley was cut nearly in half. Since affirmative action policies were removed, Berkeley’s Black student population has flatlined at 3 percent, even though Black people make up 6.5 percent of California’s population. A vote in favor of Proposition 16 could make our state’s public universities more representative of the state. A vote in favor of affirmative action is a vote for equal opportunity.

The Asian students referred to in the above paragraph are not a monolith. Although several recent anti-affirmative action movements have been helmed by Asian American students, Southeast Asian students are likely to benefit from affirmative action. A vote in favor of Proposition 16 is a vote in favor of creating more equal outcomes within ethnic groups too often treated as uniform.

A yes vote on Prop 16 is also the beginning of a long journey towards equality. State Senator Ling Ling Chang opposes the measure and believes that “the answer to racial discrimination is not more discrimination which is what this bill proposes. The answer is to strengthen our institutions by improving our education system so all students have access to a quality education, and give opportunities to those who are economically disadvantaged.” California institutions, in the wake of Proposition 209’s passage, had to modify systems in order to combat the inevitable racial disparities that come from a colorblind application of systems. (This is how Berkeley Law went from zero Black students admitted in 1997 to over forty in the class of 2023.)

Senator Chang’s expressed desire to improve education does not have to come at the expense of affirmative action programs. The decision to allow identity factors to be considered in allocations of resources should be taken in tandem with investment in education. The best way to give opportunities to those who are economically disadvantaged is to do it at every step of the way. Even Connerly voiced support for race-conscious outreach as early as November 1997, after the passage of Proposition 209. A vote in favor of Proposition 16 is a vote in favor of systems giving everything they’ve got, rather than piecing together solutions around a state law that is more restrictive than federal law.

Proposition 16, which would bring California in line with federal standards, makes it possible for women and people of color to be considered for opportunities at a more equitable rate than without affirmative action. It should be acknowledged that simply because a person’s race, ethnicity, and sex can be a discriminating factor does not mean that it must be a discriminating factor. Voting in favor of this measure is voting against a race where the winner always has at least one generation’s head start. A yes vote acknowledges that an individual’s success rate is currently dependent on factors like race or sex, but it also implores actors within our institutions to develop a model wherein that success rate can be equalized. It does not, as opponents unfoundedly argue, encourage applicants with marginalized identities to feel entitled to opportunities or become lazy.

Proposition 16 recognizes the chasm between the “colorblind” law and a society that is very aware of race. Voting for Proposition 16 acknowledges the reality of systemic racism while bringing California closer to achieving equality.

In that same Sacramento Bee interview, Connerly explained that in 2020, “[s]kin color doesn’t matter. It shouldn’t matter. The only way we get it to not matter is to stop making it matter.” But even as Connerly exhorts that race shouldn’t matter, he acknowledges that it does. So long as race affects outcomes for success, so long as women of color do not catch up to their White men counterparts previous year’s earnings until the next August (Black women) or October (Native American and Latinx women), we will still have to work twice as hard to get half as far. Voting yes on Proposition 16 means that that double effort we are already putting in might actually get us the distance.

 

Jessica Williams: Senior Diversity Editor for the California Law Review and member of Berkeley Law Class of 2021.

Recommended Citation: Jessica Williams, The Case for Affirmative Action, Calif. L. Rev. Online (Oct. 2020), https://www.californialawreview.org/case-for-affirmative-action.

More From California Law Review Online

Eyes Wide Shut: Using Accreditation Regulation to Address the “Pass-the-Harasser” Problem in Higher Education

The #MeToo Movement cast a spotlight on sexual harassment in various sectors, including higher education. Studies reveal alarming percentages of students reporting that they have been sexually harassed by faculty and administrators. Despite annually devoting hundreds of millions of dollars to addressing sexual harassment and misconduct, nationwide university officials largely take an ostrich approach when […]

A Pathway to Health Care Citizenship for DACA Beneficiaries

Since 2012, beneficiaries of Deferred Action for Childhood Arrivals (DACA) have enjoyed a certain normalization, however tenuous, of their status in the United States: they can legally work, their removal proceedings are deferred, and they cease to accrue unlawful presence. Regarding subsidized health coverage, however, DACA beneficiaries remain on the outside looking in. Although other […]

The Discounted Labor of BIPOC Students & Faculty

Black Law Students experienced a different COVID-19 pandemic than their majority counterparts due in part to the emotional and physical toll caused by the violent, public mistreatment of Black persons at the hands of law enforcement. While some law faculty at some institutions were proactive in identifying the struggles that their Black students were facing, […]

#BlackLivesMatter—Getting from Contemporary Social Movements to Structural Change

This piece is part of the Reckoning and Reformation symposium, which brings together scholars writing broadly about the law, justice, race, and inequality. The California Law Review published two other pieces as part of this joint effort with other law reviews: The Racial Reckoning of Public Interest Law Racial Justice for Street Vendors     Introduction […]