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William C. Kidder

William C. Kidder, Misshaping the River: Proposition 209 and Lessons for the Fisher Case, 39 Journal of College and University Law 53 (2013) (213 Footnotes)


California's experiences with and responses to Proposition 209 bear on the Fisher v. University of Texas at Austin case with respect to both questions of compelling interest and narrow tailoring. Two related developments led to the end of race-conscious admissions at the University of California. In July 1995 the UC Regents adopted a resolution (SP-1) prohibiting affirmative action that took effect with the entering 1997 class at the graduate/professional school level and the 1998 class at the undergraduate level. In November 1996 California voters passed Proposition 209, a constitutional amendment that likewise prohibited affirmative action in state education, employment and contracting. An opening proviso about this paper is that several details about University of California (UC) admissions that have high relevance and importance within the UC community and for policy stakeholders in California--such as “Eligibility in Local Context” and “Entitled to Review” admission programs--are not addressed in this paper because of the lesser degree of nexus to the applied context of the Fisher case and because of significant distinctions as compared to the Texas Ten Percent Plan.

This article advances the following findings and conclusions:

Lesson #1--At the University of California, which is subject to an affirmative action ban, recent survey data from eight campuses confirms that the campus racial climate is significantly more inhospitable for African Americans and Latinos than at UT Austin and two other peer universities. In particular, these survey data from 9,750 African American and Latino students confirm that having an affirmative action ban and low diversity is associated with African Americans and Latinos perceiving that students of their race or ethnicity are less respected on campus compared to those on campuses with affirmative action and/or higher levels of diversity. Although establishing a correlation is not the same as proving causation, these data are consistent with the conclusion that affirmative action bans and lower diversity (at least in combination) lead African American and Latino students to feel that they are less respected by their peers. More importantly, the data are the opposite of what one would expect if Petitioner's amici were correct in claiming abolishing affirmative action lessens any stigmatization that minority students might feel or otherwise creates a racial “warming effect” (themes discussed more in the next section). Relatedly, on the question of “critical mass” versus racial isolation that was discussed at length during the U.S. Supreme Court's oral argument in the Fisher case--and that was one key consideration taken into account by UT Austin in devising its admissions program--the comparative data in this article suggest that the threat of educational harm associated with racial isolation is very real (particularly for African Americans) and should not be minimized or overlooked.

Lesson #2--Contrary to recent claims by groups opposing affirmative action, Proposition 209 (“Prop 209”) triggered a series of educationally harmful “chilling effects.” Data on UC's freshman admit pools spanning a dozen years show that underrepresented minorities (more so for those with the strongest credentials, and especially for African Americans) are more likely to spurn an offer from UC than they were before Prop 209, and the difference compared to whites/Asian Americans has gradually widened under Prop 209. In combination with the survey data above, these findings about students' enrollment choices again cast doubt on claims by affirmative action critics that Prop 209 benefited underrepresented minorities by lessening racial stigma. Declines in law school applications and undergraduate enrollments are also reviewed and contextualized.

Lesson #3--Affirmative action critics supporting Petitioner are propagating two related myths about credentials and performance. First, they scapegoat affirmative action as the overwhelming cause of racial/ethnic differences in SAT scores at UT Austin and elsewhere, when this relationship is quite modest for reasons stemming from the mathematics of admissions. Secondly, the critics stubbornly insist that affirmative action causes substantial “mismatch” effects on underrepresented minority student performance when in fact there is a voluminous social science literature indicating that affirmative action at highly selective institutions has a net positive effect on graduation rates and other important outcomes. Law school mismatch claims are also reviewed.

Lesson #4--While some argue in favor of class-based affirmative action in lieu of race-conscious programs, UC's atypically large enrollment of low-income undergraduates is strong “natural experiment” evidence verifying that class-based policies are not effective substitutes for race-conscious policies

Lesson # 5--The experience of: UC Business Schools and UC Law Schools after Proposition 209 provide compelling case studies regarding the need for race-conscious affirmative action

* * * *

In Grutter the Court held that the educational benefits of diversity provide a compelling governmental interest in race-conscious admissions, and diversity as a compelling interest remains a core issue in Fisher though it is disputed more intensely by Petitioner's amici than by the Petitioner herself. In Fisher the University of Texas argues that its efforts to seek “critical mass” come alongside the dual recognition that “[n] o particular percentage of the incoming class will ensure that those benefits are realized in all educational settings” but that this “does not mean that the critical-mass determination is just an abstraction.” The facts on the ground were that the entering freshmen class at UT Austin in 2003--when Grutter was handed down-- included the “startling number” that African Americans were three percent (and Latinos were fourteen percent). Moreover, the University found “jarring evidence of racial isolation” and their study of classroom diversity revealed “that African-American and Hispanic students were nearly non-existent in thousands of classes was a red flag that UT had not yet fully realized its constitutional interest in diversity.”

The findings in Part I of this article support the educational judgments above with very recent data comparing undergraduates at UT Austin and ten other peer research universities. African Americans at UT Austin were considerably less likely to feel respected on campus than white students (72.3% versus 96.4%). At the same time, the African Americans on the Austin campus fared better than those at the University of California, which is subject to an affirmative action ban and where diversity levels are lower (a combined student body that is three percent African American on seven of the UC campuses).

“Critical mass” does not neutralize all other factors influencing the student educational experience, but the survey data in Part I from nearly ten thousand African American and Latino undergraduates confirm that with higher diversity/critical mass and the presence of affirmative action (UT Austin, AAU University #1) is generally associated with a more positive racial climate for African Americans and Latinos than is found at peer campuses laboring under an affirmative action ban and lower diversity levels (Berkeley, Davis, Irvine, UCLA, San Diego, Santa Barbara, Santa Cruz). The campuses with even greater African American critical mass than UT Austin have African American students who report even higher levels of feeling respected on campus (UC Riverside, AAU University #2).

The racial climate survey data reviewed in this article also provide an educational basis for viewing with skepticism assertions about affirmative action causing significant harm by supposedly stigmatizing beneficiaries. Evidence about what students “do” are consistent with what students say in surveys, as the data in Part II of this article covering UC's freshman admit pools since the 1990s are also inconsistent with the “stigmatic harm” hypothesis of many affirmative action critics. In fact, underrepresented minorities with stronger credentials, and especially African Americans, are relatively more likely to walk away from admission offers to the University of California than they were before Prop 209, and with more of them instead accepting offers from competitor private selective universities that practice affirmative action. Other “chilling effects” in Part II were documented in UC's law school applications and undergraduate enrollment.

Part III rebuts two myths that are passionately promoted by critics of higher education affirmative action. First, racial/ethnic differences in average/median SAT scores are falsely portrayed as being overwhelmingly caused by affirmative action. Relatedly, the critics over-dramatize claims about harmful “mismatch” effects on underrepresented minority students' performance when the social science literature overall corroborates that there are net benefits to attending highly selective universities, including with respect to graduation rates and labor market outcomes. STEM field and law school mismatch claims were also reviewed.

Part IV draws upon the University of California's experience with an affirmative action ban and analyzes California as a “natural experiment” showing that class-based diversification efforts--while important for distinct policy reasons--do not effectively substitute for race-conscious policies at America's most selective universities. Finally, Part V showed that after Prop 209 there were substantial declines in access for underrepresented minorities at the UC Business Schools and the UC Law Schools, fields where it is especially the case that the “path to leadership be visibly open.”While several studies confirm the benefits of diversity and critical mass in law school, the critics supporting the Petitioner in Fisher who dismiss these benefits rely on one problematic study by John Lott et al.--a study that is not up to the task of assessing “critical mass” and that is constrained by other data problems.

In different ways, Parts I through V of this article all provide analysis and data on issues swirling around the “compelling interest” and “narrow tailoring” legal questions in Fisher and beyond--including racial isolation and respect, enrollment choice and stigma, the test score gap, success in long-term outcomes (versus “mismatch”), class-based admissions/financial aid efforts and the distinct consequences of ending affirmative action at professional schools. These issues will remain important in the higher education landscape for years to come irrespective of the precise contours of the Court's ruling in Fisher, which reinforces (in a roundabout way) why it is valid and legitimate in the first place for courts to defer to the educational and academic judgments that colleges and universities make in carrying out their educational missions.


Assistant Executive Vice Chancellor, UC Riverside; B.A. and J.D., UC Berkeley (This email address is being protected from spambots. You need JavaScript enabled to view it.).