In summary

The U.S. Supreme Court this week rejected affirmative action in university admissions, ruling that race-conscious decisions are unconstitutional. The decision will have a limited impact on the UC system, but private schools like Stanford will be heavily affected.

Guest Commentary written by

Daniel Farber

Daniel Farber

Daniel Farber is a law professor at UC Berkeley, where he teaches and writes about constitutional law and environmental law. His most recent book is “Contested Ground: Understanding the Limits of Presidential Power.”

Since 1978, the U.S. Supreme Court has allowed universities to use affirmative action as a tool to increase racial diversity, but on Thursday the court slammed the door on this practice, holding that it violates the Constitution.

The decision is extremely controversial, and there is much to be said about the court’s reasoning. But for present purposes, we should focus on a narrower question: the decision’s impact in California.

At state universities like UC Berkeley, the immediate impact should be small. But private schools like Stanford will be heavily affected.   

The reason is straightforward: California law has banned affirmative action since 1996 when it passed Proposition 209. So for schools like Berkeley, the court’s ruling does not represent much of a change. No doubt scholars will be scouring the opinion to see if any details of the process need to change, but basically the court has imposed on schools nationally the same rules that already applied in California. 

For private schools, the impact will be broader because they were not subject to California’s ban on affirmative action. If they accept any form of federal funding, they’ll have to comply with the new Supreme Court decision. This will probably mean adopting something like the application process used across the University of California system. They remain free, however, to maintain other aspects of their admissions process like personal interviews or preferences for the children of alumni or major donors. 

Some schools may try to take advantage of a door that the court left open by justifying affirmative action as a remedy for past racial exclusion. Past precedents dealing with the remedial use of affirmative action in government set-asides will be closely scrutinized, assuming they can make the case. Schools will have to show that there’s a clear link between their programs and instances of past illegal conduct. 

Despite the failure of a recent effort in 2020, there has been continued talk about repealing Prop. 209. Whatever California does with its own law, federal law would continue to limit what state schools could do. Unless they can prove that a program is addressing unequal admissions, the court’s decision will make affirmative action in university admissions illegal even if Prop. 209 disappears. 

Beyond university admissions, the court’s decision will impact other race-conscious programs nationally. The court said that it has found only two government interests strong enough to justify such programs: One is remedying “specific, identified instances of past discrimination that violated the Constitution or a statute.” The other is “avoiding imminent and serious risks to human safety in prisons, such as a race riot.”

Presumably, even outside a prison, acute risk to human safety would count, but this still seems like a very narrow exception.

A constitutional amendment proposal in the California Assembly would allow race-based programs if there is rigorous evidence that the program would “for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups.” Programs relating to sexuality or gender are also allowed, but these raise different legal issues and that’s a discussion for another day.

The affirmative action case doesn’t directly speak to the constitutionality of the Assembly initiative. However, given the Supreme Court’s very narrow description of past precedents, such as the prison exception, it seems doubtful that the Assembly initiative would pass muster. A general improvement in life expectancy, educational outcomes or poverty levels just isn’t comparable to the imminent risk to safety described by the court. 

With programs that consider an individual’s race now off the table, addressing racial disparities will be harder. But that’s nothing new for California schools and state government.

The rest of the country may be looking to us for guidance about how to meet the challenge. 

more on affirmative action

California private colleges fear affirmative action ban as Supreme Court prepares to rule

With a conservative Supreme Court expected to rule this summer in favor of ending or restricting affirmative action in college admissions, California’s private universities are worried about the potential impact on campus diversity. College administrators are revamping admissions and doing more high school outreach, while student activists are campaigning against a potential ban.

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