Colleges and universities across the country are struggling with how to achieve diversity after the Supreme Court’s decision in Students for Fair Admissions v. President and Fellows of Harvard College. The court effectively overruled 45 years of precedent and held that schools (public or private) can no longer use race as a factor in admissions decisions to benefit minorities and enhance diversity.
As schools strive to have a diverse student body after the court’s decision, much can be learned from the experience of states where affirmative action already had been eliminated. For example, in 1996, California voters passed Proposition 209, which prohibits the government from discriminating or giving preference based on race or sex in education, contracting or employment. Voters in other states, like Michigan and Washington, have adopted similar initiatives.
On the one hand, the experience in California shows the devastating effect on diversity from eliminating affirmative action. At both the University of California, Berkeley, and UCLA, the number of Black and Latino students in the freshman class fell by 50 percent after the enactment of Proposition 209. At Berkeley, for example, the percentage of Black students in the freshman class dropped from 6.32 percent in 1995 to 3.37 percent in 1998. Latino representation similarly dropped from 15.57 percent to 7.28 percent during that period at Berkeley, even though Latinos represented 31 percent of California public high school graduates.
On the other hand, over time, public schools in California found ways to increase diversity without affirmative action — but it took a long time, with much concerted effort and a great deal of trial and error. It took UCLA 19 years, until 2015, to reach its pre-1996 levels of diversity. As Supreme Court Justice Sonia Sotomayor pointed out in her dissent, “To this day, the student population at California universities still ‘reflect[s] a persistent inability to increase opportunities’ for all racial groups. For example, as of 2019, the proportion of Black freshmen at Berkeley was 2.76%, well below the pre-constitutional amendment level in 1996, which was 6.32%.” Diversity continues to significantly increase at Berkeley, but the impact of Proposition 209 is still being felt.
What can be learned from the California experience? To begin with, it is essential that schools remain committed to achieving diversity. The Supreme Court’s ruling was about the means that schools can use to achieve diversity, specifically whether a preference can be given in admission to students of color. The court held that schools cannot do this, but that does not preclude them from continuing to pursue diversity in other ways that are constitutionally permissible.
In evaluating individual applications, schools can consider race in evaluating how individual students overcame discrimination or how race affected their life. Chief Justice John Roberts, in his majority opinion for the court, was explicit about this, “nothing in this opinion should be construed as prohibiting universities from considering an applicant’s discussion of how race affected his or her life, be it through discrimination, inspiration, or otherwise.” Schools will need to be careful to show that they used race in this permissible way and not as an impermissible preference.
Schools can engage in aggressive recruitment of students of color to apply and to attend once they are admitted. The admissions process has three basic phases: applications, admissions and yield. The Supreme Court’s ruling focuses only on the middle of these steps. Schools have increased their diversity by expanding their pipeline of applicants and by persuading those accepted to attend. We have substantially increased diversity at my law school by devising a program of outreach to admitted students that uses alumni, faculty and current students to contact them. We do not limit this effort to admitted students of color, but it has enhanced our yield and our diversity efforts.
Race-neutral criteria that can also be used to yield greater racial diversity. Some states, such as Texas, have adopted top 10 percent plans (now a top 6 percent plan), where a public university takes top students from every high school in the state. Texas and many other states are sufficiently racially segregated that this yields some diversity.
California schools experimented with various race-neutral factors. For example, schools can give a preference in admission to those who are economically disadvantaged or the first in their family to go to college. This has great benefits and produces diversity based on socioeconomic status. But it should be realized that this often will fail to enhance racial diversity. Simple arithmetic explains why. A larger percentage of Black and Latino individuals are economically disadvantaged compared to white individuals. In numbers, though, there are many more white individuals who are economically disadvantaged than people of color.
These, of course, are just some of the techniques used to achieve diversity after the elimination of affirmative action. It is an enormous and continual challenge. Colleges and universities have engaged in affirmative action for more than a half century because they have needed it to achieve diversity. The history of racial discrimination and ongoing discrimination make it very difficult to achieve diversity without affirmative action.
But it is possible, and the key is for schools to remain committed to diversity as a goal and to try different approaches, consistent with the Supreme Court’s decision. It will be essential that they learn from each other, including from the experience of those in states that had already eliminated affirmative action.
Erwin Chemerinsky is the dean and Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley School of Law.
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