Flipping fairness: California’s ‘colorblind’ laws fail Black students

California likes to think of itself as a laboratory for progress. But when it comes to racial equity in higher education, the experiment has failed. 

Two stories broke recently that show just how twisted the state’s idea of “fairness” has become. A scholarship at UC San Diego — created to honor victims of Klan violence and help Black students — was forced open to white applicants after a legal challenge. Think about that. A program meant to repair racial terror now has to include descendants of those who were never targets of it.

Then Gov. Gavin Newsom vetoed a bill that would have let public colleges prioritize descendants of enslaved people in admissions — a modest acknowledgment of history. Vetoed.

These aren’t isolated incidents. They’re symptoms of the same disease: California’s anti-discrimination laws are now tools for preserving discrimination. It’s a legal sentiment that has travelled west to east.

California’s Proposition 209 is where it started. Passed in 1996, it bans public institutions from considering race in education, employment, and contracting. The pitch was simple: treat everyone the same. The reality has been anything but.

Black enrollment across the UC system tanked after Prop 209. At UCLA and Berkeley, Black students remain drastically underrepresented even as California grows more diverse. 

But the law didn’t stop at admissions. Its “colorblind” logic metastasized, infecting scholarships, support programs and outreach efforts.

Now we’re living with the consequences. The UCSD scholarship case and Newsom’s veto both spring from the same trap: Prop 209 made it illegal to center race, even when systemic racism is exactly what needs addressing. California painted itself into a corner where a remedy looks like privilege and repair looks like discrimination.

Let’s be clear — programs supporting Black students were never about giving someone an unfair edge. Rather, racial equity initiatives are about course correction. Centuries of exclusion — from schools, from property ownership, from public life — required a legal apparatus, and so does any solution meant to repair the harm and damage.

When a scholarship designed to address racial violence gets forced to “include everyone,” the whole point disappears. When a bill recognizing the descendants of enslaved people gets killed for threatening “neutrality,” the state isn’t neutral. It’s actively maintaining inequality.

Prop 209 promised equal treatment. Instead, it gave legal cover to dismantle every attempt at redress. Equality became a cudgel against equity.

These decisions have consequences beyond symbolism. Black students lose funding. Admissions officers back away from targeted outreach. “Fairness” becomes code for inaction. And when every race-conscious remedy gets stripped away, campuses become less representative, less vibrant and less honest about the ground they stand on.

A new definition for discrimination

The definition of discrimination is flipping before our eyes. It used to mean perpetual exclusion of a group of people; now it means helping the excluded. A scholarship for Black students becomes discrimination. Two centuries of systematic exclusion somehow aren’t.

California has been at a major crossroads, see-sawing between anti-discrimination and anti-Black policies and practices. California doesn’t have to stay stuck here. 

Even under Prop 209, we have options. Intentional partnerships with private funders to support targeted scholarships is one option, alongside expanding outreach to Black communities and schools. Using race-neutral proxies — such as neighborhood data, family wealth, school quality — to shape admissions and aid is another possibility. 

Most importantly, we must tell the truth: You cannot spell equality without equity, which means equality without repair isn’t justice.

California used to lead on innovation and inclusion. If we want to resume or assume that leadership role again, we need to admit what’s obvious: Even in Blue states, a colorblind system still produces color-coded results. Downplaying distinctions only increases and solidifies racial gaps in wealth, health, education, access, safety and happiness.

Real fairness isn’t pretending race doesn’t exist. It’s seeing clearly what race has done — and choosing to repair the damage.