Once affirmative action dies, reviving it might be impossible.
That’s a fair reading of the news from California, where Proposition 16 appeared to be headed toward defeat. The controversial ballot measure would have reinstated affirmative action, allowing for the consideration of race, gender, and ethnicity in college admissions as well as public employment and contracting. The Golden State banned all of the above with the passage of Proposition 209, in 1996.
For nearly a quarter-century, undoing that ban seemed like a long shot. Then, early last year, Shirley N. Weber, a Democratic member of the California Assembly, introduced a state constitutional amendment to roll back Prop. 209, as the measure is known. In June, amid a swell of national protest following the death of George Floyd, the amendment passed both chambers of the California Legislature, setting up this week’s vote. Weber, who is Black, said Floyd’s story had helped people “see the impact of 400 years of racism … and that equal opportunity is not readily available for everybody.”
From afar, the ballot measure might have looked like a safe bet to pass. After all, California, known as a bastion of liberalism, has become ever more diverse since the 1996 vote on affirmative action (in 2014, Hispanics became the largest ethnic group in the state). Prop. 16 garnered high-profile endorsements, from California’s Gov. Gavin Newsom, Sen. Kamala D. Harris, The New York Times, and even the rapper Ice Cube, who recently tweeted: “Systematic racism doesn’t correct itself. Vote Yes on 16.”
Despite a pro-Prop. 16 campaign that raised almost $20 million — nearly 20 times as much as groups opposed to the amendment raised — recent polls had revealed lukewarm support for the measure. Among likely Democratic voters, the Public Policy Institute of California found in September, just 46 percent said they would vote for the amendment.
With 72 percent of the vote counted as of Wednesday morning, the measure was apparently on its way to defeat, with 56 percent voting against it and 44 percent voting for it.
What explains the amendment’s failure? First, it caused a lot of confusion. Some voters said they found the language of the measure unclear. “Can someone dumb it down bc ive watched videos and read articles but still can’t really figure it out,” one Californian tweeted recently. Another tweeted: “Prop 16 do be confusing.”
One complication: The amendment proposed striking from California’s legal code a sentence affirming that the state “shall not discriminate against, or grant preferential treatment to, any individual” on the basis of race, gender, ethnicity, or national origin. That might well have thrown off some would-be supporters. In one focus-group session, for instance, Black voters said they wouldn’t support the measure after it was read aloud to them, according to a recent report: “The challenge for the Yes on 16 Campaign is to clear up voter confusion about repealing a law that says you can’t discriminate at the same time it denies racial and gender equity.”
Another factor: Though California is a progressive state, plenty of residents do not support race-conscious admissions programs. In particular, the debate over Prop. 16 revealed a stark divide among the state’s Asian Americans. Within that large, diverse community, there was plenty of support for the amendment — but also plenty of scorn. Some opponents worried that the reinstatement of race-conscious admissions in the University of California system would harm Asian American applicants, who are overrepresented at UC relative to their share of the state’s population.
In the end, the failure of Prop. 16 just might reflect the nation’s complicated relationship with affirmative action. Most Americans support the broad concept: In a 2019 Gallup poll, 61 percent said they favored affirmative-action programs for racial-minority groups, up from 54 percent in 2016.
Yet a majority opposes the consideration of race in admissions. Most Americans (73 percent) say colleges should not consider applicants’ race and ethnicity, according to a 2019 survey by the Pew Research Center. Nineteen percent say it should be a minor factor, and just 7 percent say it should be a major factor.
In a 2018 analysis, Gallup suggested that when Americans hear “affirmative action,” they tend to think of something positive, such as encouraging more students from various racial backgrounds to apply to college: “Respondents could favor the idea simply because they applaud the result — more diversity in a student body — without thinking much about how the result is brought about.” In the zero-sum game of admissions at highly selective colleges, the means of achieving the result is where the debate turns red-hot.
The impact of California’s affirmative-action ban has been significant. After Prop. 209 took effect, enrollment of Black and Hispanic students in the UC system declined. This past summer, Zachary Bleemer, an economist at the University of California at Berkeley, conducted a comprehensive study of the ban. He concluded that banning affirmative action exacerbates socioeconomic inequities.
California is one of nine states that have banned affirmative action. To date, no state that has adopted such a ban has reversed it. In 2019, the Washington State Legislature voted to restore the practice, but months later, voters rejected the measure. Once affirmative action falls off the table in a given state, putting it back on just might prove impossible.
The passage of Prop. 16 would have marked a major victory for proponents of race-conscious admissions. But the most important battle is continuing. The U.S. Court of Appeals for the First Circuit is considering an appeal of a federal judge’s ruling last year that Harvard University’s did not discriminate against Asian American applicants.
If there’s one thing people on both sides agree on, it’s that the case will end up before the Supreme Court. But when that happens, the roster of justices will look a lot different than it did when the high court last upheld the use of race-conscious admissions, in 2016, by a 4-to-3 vote.
