The firestorm over a recent New York Times 

The revelations came via the discovery phase of a lawsuit targeting Harvard for allegedly having de facto quotas meant to limit Asian-Americans to about 20 percent of incoming freshman classes – a percentage that has held relatively firm for decades. Internal documents appeared to confirm that low marks for alleged personality traits reduced how many Asian-Americans would have been accepted by about half. Several other Ivy League schools have also been accused of similar practices.

University of California campuses wouldn’t seem likely to face such potential headaches. Proposition 209, passed in 1996, bans the use of race as a consideration in college admissions and other state government functions. Some of UC’s most elite campuses – at Berkeley, Irvine and San Diego – have student bodies that are more than 40 percent Asian-American.

But when it comes to UCLA, where 32 percent of students are Asian-American, according to collegedata.com, the school could face embarrassment if its internal admissions processes were exposed by a lawsuit as happened with Harvard. That’s because there’s a long paper trail showing UCLA employed the same sort of subjective evaluations of applicants as Harvard.

In 2006, responding to disappointingly low enrollment numbers for African-Americans, UCLA officials adopted a “holistic” approach that they said represented the “most dramatic” changes in admissions in years – an approach they explicitly compared to those seen in Ivy League schools. This approach looked not just at grades and test scores but at life circumstances.

But even as the change was introduced, Ward Conerly – the African-American former UC regent who championed Proposition 209 – ridiculed the idea that the policy would be “fairer” to all groups, as acting Chancellor Norman Abrams then said.

Two years later, UCLA political science professor Tim Groseclose resigned from the university’s undergraduate admissions committee, alleging it had become obvious that UCLA was using the latitude provided by subjective assessments of applicants to favor African-Americans over others. Groseclose challenged UCLA’s assertion that it was using socioeconomic backgrounds – not race – in evaluating what obstacles that applicants had overcome. He noted that after the UCLA policy change, admissions of students from Vietnamese-American families – among the poorer subsets of Asian-Americans – had actually fallen.

In defending its “holistic” approach, UCLA officials have pushed back, then and now, saying critics had agendas and were cherry-picking statistics.

Ex-UCLA professor: Rich black applicants favored over poor Asians

But in April 2014, soon after leaving UCLA for George Mason University, Groseclose published “Cheating: An Insider’s Report on the Use of Race in Admissions at UCLA.” It cited internal documents that showed that an applicant from a wealthy African-American family had a likelihood of admission that was “almost double that of a poor Asian, even when the two applicants have identical grades, SAT scores and other factors.”

The book was published amid intense debate in the California Legislature over Senate Constitutional Amendment 5, which would have asked state voters to repeal part of Proposition 209 to allow for race to be considered in college admissions. It passed the state Senate in January 2014, with Lieu – then a state senator – among the yes votes.

But the constitutional amendment was never voted on in the Assembly. By May 2014, it had been scrapped after an intense backlash from Chinese-Americans who believed it would suppress Asian-American enrollment in UC’s most elite campuses.

The backlash was strongly criticized by the Asian American Legal Defense and Education Fund, which urged a continuation of traditional Asian-American support for affirmative-action-type programs. But then-Rosemead Councilwoman Polly Low, a leader of the Chinese American Elected Officials Association, told the Los Angeles Times that many in the local Chinese community were incensed with SCA5. “I have never seen so many people so mad,” she said.

“There is no authority in the federal constitution or in the [courts’] precedents for the judiciary to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions….

“This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it.”

The decision involved an initiative Michigan voters passed that was similar to Proposition 209, which California voters passed in 1996. Prop. 209 was crafted to echo the civil rights legislation of the 1960s which banned racial discrimination. Unfortunately, since the 1960s affirmative action and other schemes have been used to bring back a racial spoils system.

Prop. 209’s language on the 1996 ballot read:

“Prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.”

Opponents claim that past and current discrimination keep minorities from government jobs and college and university admissions places. Therefore, affirmative action, including quotas for minority members, is needed.

Affirmative action

In California, two recent events have shown the problems with affirmative action, and why a
“color blind” system is best, and most just.

Last month, Asian-American leaders in the California Legislature forced the Democratic leadership to back down on an attempt to reverse Prop. 209 and bring back racial quotas. The Asian-Americans saw that it would reduce the number of their kids in state colleges and universities.

And just yesterday, new admissions numbers showed that Hispanics this fall will outnumber whites among University of California freshmen. Asians will remain the top group. This showed that Hispanics can excel without the help of affirmative action.

The new numbers: 36.2 percent Asian-American, 28.8 percent Hispanic, 26.6 percent white, 4.4 percent black.

It’s true that Hispanics now make up about 50 percent of California high-school seniors; and blacks make up about 6 percent. So they are not going to UC at an equivalent rate. But the problem there, of course, is that so many schools Hispanics and blacks attend are among the worst in the state.

It doesn’t make sense to send to UC students who have not been properly educated by bad schools. It does make sense to raise standards, for example, by giving merit pay to the most effective treachers. But that particular reform still is resisted strongly by the teachers’ unions.

By effectively upholding Prop. 209, what today’s decision does is put the emphasis on helping Hispanic and black kids — and white and Asian-American kids as well — where it should be: on the schools.

But in the U-T San Diego, I made the case that another Democratic faction has far more reasons for dissent:

” … if any part of the Democratic coalition should consider bolting over basic calculations of self-interest, it is Latinos. They are poorly served by the state’s public education system — which is dominated by the California Teachers Association and the California Federation of Teachers, the most powerful forces in the state Democratic Party.

“Everywhere around California, there is a cold war playing out between teachers unions and those who want to shake things up to help Latino students.

“In San Diego Unified and elsewhere, we see a renewed assault on charter schools that are often championed by minority parents unhappy with the status quo.

“In Sacramento city schools, an Obama administration-endorsed effort to improve the performance of struggling, largely minority schools is being sandbagged by the local chapter of the CTA — because the program seeks to determine which teachers are most effective in helping students from impoverished families.

“In Los Angeles Unified, this reflexive effort to protect veteran teachers above all else has long since left sanity behind. For the worst of many examples, a teacher who fed semen-laced food to his poor, mostly Latino elementary school students couldn’t be fired because of the immense job protections dictated by the local CTA chapter. Administrators had to pay him $35,000 to get him to resign.”

Teachers blame kids, parents — absolve themselves

“This disconnect between the interests of Latinos and the interests of the teachers unions that dominate California’s Democratic Party is hammered home by these unions’ increasingly open attitude of ‘don’t blame us for not being able to educate these kids.’

“Yes, of course, it’s going to be more difficult to help a student whose parents aren’t English speakers or who have other difficulties related to poverty. Nevertheless, it is a matter of fact that some teachers, schools and districts do objectively better at educating these students than others. Yet instead of supporting a “best practices” approach to help these kids — as Sacramento schools are trying to do — the CTA and CFT try to nuke any change in the status quo that might cost any teacher anywhere her or his job.

“If college admission policies drive a wedge between Asian-Americans and the California Democratic establishment, public education policies should be 100 times more likely to divide Latinos and state Democrats.”

Career comes first. The kids? Bleep ’em

Instead, Latino lawmakers by and large never pick fights with the CTA and CFT. With the gigantic exception of former state Sen. Gloria Romero, D-Los Angeles, Latino Dem electeds want to stay on the career-advancement gravy train. As I detailed in 2012, they’ll even put up with a CTA member feeding semen to Latino elementary-school kids:

“The Berndt case prompted state senator Alex Padilla, a Los Angeles Democrat, to introduce legislation that would have made it easier for districts to fire sexual predators. That bill never made it out of a state assembly committee. Lobbyists from the CFT and CTA portrayed it as an assault on teachers’ due-process rights, and legislators fell right into line with the unions. As for Berndt, instead of firing him, the union-dominated Los Angeles Unified hierarchy paid him $40,000 to resign.

“Siding with classroom sexual predators over Latino students and parents was no big deal for the CTA-affiliated United Teachers Los Angeles. Consider what happened in November 2009 at Gratts Elementary School (94 percent Latino enrollment) in the Pico-Union neighborhood of Los Angeles. Latino parents who wanted to convert the struggling school to a charter and force out poor teachers were warned in Spanish-language fliers that they risked deportation for their efforts. UTLA denied any involvement with the scare tactic, but union members were the sole suspects.

“It might seem remarkable that the California legislature’s powerful Latino caucus tolerates union bullying and intimidation, but then most of the caucus members — including Assembly Speaker John Pérez, a former organizer for the United Food and Commercial Workers — ascended through the labor movement. By allowing the CTA and CFT to dictate the agenda, Latino legislators are keeping the best teachers out of schools where they’re most needed and helping channel the worst teachers to the most troubled schools. They evidently prefer keeping mum to risking teachers’ union support.”

To repeat a point I made in the U-T San Diego’s pages, many Latinos’ assumption that Republicans just don’t like immigrants or minorities or Latinos make it unlikely they would even consider switching parties. But should that anti-GOP view make them blind to the fact that when it comes to public education, California Dems are objectively anti-Latino?

Of course not.

“The Big Reveal on Cal’s holistic admissions process created much fuss, most of it on behalf of Asians who are clearly the victims of discriminatory behavior.

“I’m fussed, too. But most people don’t completely understand how this ‘problem’ came about, and why the UC and other universities are discriminating against Asians. It’s not so much ‘affirmative action for whites’ as it is unintended consequences of being forbidden to use affirmative action for blacks and Hispanics.”

‘Immigrant Asians … kill whites on grades’

How did this play out? UC chose to …

“… de-emphasize those evil, racist tests that traditionally represent, in the typical progressive’s mind, a means of reinforcing the institutionalized hegemony of the white man’s values. Grades, in contrast, reflected the school’s values, the school’s priorities. So majority URM schools, both charters and inner city, can put whatever grades they like on classes that can be called whatever they want. UC officials made the change, along with Eligibility in the Local Context, so that majority URM schools could lie about their students’ academic abilities properly reflect the students’ diligence and abilities in subjects simply not valued by the institutional racists at the College Board.

“The problem is, alas, that UC admissions made changes to their policy based on the ‘demographic footprint’ of tests, but they forgot about the demographic footprint of grades.

“Namely: Asians, particularly recent immigrant Asians, kill whites on grades. The test score advantage is getting (suspiciously) worse, but the grade advantage is huge.

“That wasn’t part of the plan. Look, universities know the game as well as anyone: grades are a fraud. That’s why, until relatively recently, all universities weighted test scores as high or higher than grades.

“If high school grades were objectively accurate, why does the University of California have an entry level writing requirement?—and why is that writing requirement either a test or a college level course? (And I have my own doubts of college level courses, but more on that later.) … If high school grades meant anything, schools could just accept students with high grades and hey, presto. Problem solved.”

‘Any outrage is counterbalanced by another’

This is just a powerful, devastating analysis of the racial games that UC officials play. But it doesn’t lead to the tidy conclusion one might expect about UC admissions.

“You know what would have been much easier? Require four Subject tests: English Lit, Math 2c, American History, and a Science. Asians would still do well, but it would have been harder. Dump the SAT, dump or devalue grades. If nothing else, we’d be giving smart kids of all races a chance to show their stuff purely through test scores, imperfect as they may be, rather than the vagaries of teacher assessment.

“But that gets UC right back to the problem it started with, the reason it emphasized GPA over test scores in the first place, the problem that it created just to give them a cover story for ignoring the will of the California voters (and, eventually, the constitution as interpreted by the Supreme Court). A test-score only admissions process would eliminate almost all blacks and Hispanics from consideration. The problem: every attempt to bring in more blacks and Hispanics leads to more Asians.

“Problem? Why is it a problem? Shouldn’t the universities just let the chips fall where they may? If the schools are overwhelmingly Asian, so what?

“Well, for starters, relying exclusively on grades leads to Kashawn Campbell at the low end—hell, Kashawn’s story singlehandedly reveals the need for test scores, the fraudulence of high school grades, and the sketchy nature of college grades in one neat little package.

“But more importantly, a huge number of the Asians admitted are either nationals or first and second generation Chinese, Koreans, and Indians.

“None of what I’ve written or will write is intended in any way to rationalize the discrimination against Asians. Quite the contrary. Any fair admissions process would lead to overrepresentation of Asians. But I hope to persuade readers that college admissions in its current form, in both private and public schools, is so corrupt that getting outraged about discrimination for or against any one demographic is pointless. Any outrage you find is counterbalanced by another, and no, it’s not as if it all works out.”

What a vivid account of how race works at UC, Prop 209 or no Prop 209, and of how college administrators think.

I encourage people to check out the Education Realist blog regularly.

By Josephine Djuhana

A resolution that seeks to amend the California Constitution and undo the work of Proposition 209 for institutions of higher education is making its way through Sacramento and will likely be placed on the ballot in 2014.

SCA 5, authored by Sen. Ed Hernandez, D-West Covina, proposes “an amendment to the Constitution of the State, by amending Section 31 of Article I thereof, relating to public education.” Recently re-referred to the Senate Committee on Elections and Constitutional Amendments after passing the Committee on Education, the resolution specifically exempts public education institutions of higher learning from the requirements of Proposition 209.

In other words, SCA 5 allows schools to use race, sex, color, ethnicity or national origin as a consideration for accepting students or hiring employees. Using such criteria currently is banned by Prop. 209, which voters passed in 1996.

Janet Chin, a media spokesperson for Sen. Hernandez’s office in West Covina, told me the resolution would take steps to “ensure that universities reflect the diversity of the state.” She said long-term benefits would include creating equal opportunity for all Californians by having a “well-trained, diverse workforce” that is needed to compete in the global economy.

“Campuses have become less diverse” since Prop. 209 passed, Chin said. “Qualified individuals have been looked over.” Since Prop. 209, she said, minorities have been “underrepresented” in universities, and SCA 5 seeks to correct this error by securing the best and brightest students.

Prop. 209 and measures of merit

Ward Connerly, founder and chairman of the American Civil Rights Institute, told me Chin’s reasoning was “nonsense.” He sponsored Prop. 209.

“If they want the best and brightest, they will use merit,” Connerly said of university admissions processes. “They have the right to do that right now, free of any race consideration or discrimination.”

Connerly, a former University of California regent, highlighted higher education in the Golden State, starting with the UC system — in his words, “a very prized system” — which regularly secures the top 12.5 percent of students from California high schools. He also pointed to 23 campuses in the Cal State system, many of which, he said, were “equally as good as some UC campuses”; and to our community college system, with more than 100 college campuses across the state. “It defies logic,” he said to me, “for anyone to say that anyone in California doesn’t have a chance to get an education.”

“We’re a pluralistic society in California, probably the most on the planet,” he said. “We have to learn to treat everybody equally and not allow anybody to have any preference from any public institutions. It’s a mistake to now flirt with changing that and empowering public institutions to discriminate.”

Prop. 209, said Connerly, was the product of a very contentious battle in the state back in 1996. The ballot measure explicitly denied public institutions, including state and local governments, as well as universities, colleges and schools, the ability to discriminate against or give “preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.”

The results of Prop. 209 were robust. In fact, minority graduation rates actually increased after Prop. 209 was implemented. The measure “led to a more efficient sorting of minority students” according to research by Duke University:

“To address the robustness of the positive effects on graduation and the role of matching, we analyze unique data for all applicants and enrollees within the University of California (UC) system before and after Prop 209. The positive Prop 209 effects on minority graduation rates persist, even after controlling for observed and unobserved qualifications of UC enrollees. We present evidence that certain institutions are better at graduating more-prepared students while other institutions are better at graduating less prepared students and that these matching effects are particularly important for the bottom tail of the qualification distribution.”

The research also clearly demonstrated that students admitted with lower qualifications than their peers ended up learning less and had a drop out rate disproportionately higher than science majors.

“Sen. Hernandez is behind the times,” said Connerly. “It’s not forward-looking for him to inflict on the people of California another meaningless battle.”

Striving for diversity doesn’t solve the problem

Heather Mac Donald, a senior fellow at the Manhattan Institute, told me the UC system has “already been violating the spirit of Prop. 209 by importing obvious surrogates for race into its so-called ‘holistic’ admissions process.” The Hernandez bill, she said, would simply “open the floodgates of blatant racial references once again and allow UC to discriminate without apology.”

“There are high quality students that are not getting into these schools because there is already an informal quota,” she said.

The Fisher v. University of Texas at Austin case brought national attention to similar issues. The Supreme Court recently decided in a 7-1 ruling that the federal appeals court was wrong to dismiss Abigail Noel Fisher’s case, in which she argued that the University of Texas illegally discriminated against her because of her race.

The ruling written by Justice Anthony Kennedy essentially stated that diversity must not be an ultimately deciding factor in university admissions processes. “The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity,” Kennedy wrote.

“Attaining diversity for its own sake is a nonstarter,” wrote Justice Clarence Thomas in his concurring opinion. “The pursuit of diversity as an end is nothing more than impermissible ‘racial balancing.’”

The San Francisco-based Asian American Legal Foundation, in their amicus brief filing for the Fisher case, underscored the problems with having such racial quotas. Asians, they write, have “historically been, and continue to be, denied access to public schools due to overt racial and ethnic prejudice as well as ostensibly well-intentioned ‘diversity’ programs such as the program at issue here.” The brief went on to explain:

“UT Austin is engaged in racial balancing without any remedial purpose. It is similarly denying applicants access solely because they are of the ‘wrong’ race or ethnicity. And it is proclaiming that its good faith should excuse the fact that it is trammeling on applicants’ civil rights.”

The same is essentially happening in California’s higher education system behind closed doors.

In regards to admissions, Ward Connelly echoed the majority opinion of the Supreme Court and said officers must “use neutral measures first” and “exhaust all avenues of race neutrality” before considering employing policies of racial preferences.

But exempting universities, colleges and schools from the requirements of Prop. 209 would do exactly the opposite.

Connerly and other critics insist that SCA 5 would create the framework for an even broader scope of racial discrimination against qualified students, regardless of their achievements or merit.

By John Seiler

One of my oldest sources in California is Ward Connerly, president of the American Civil Rights Institute. He sponsored Proposition 209, the 2006 initiative that banned government discrimination based on race, sex and ethnicity.

Friends and Foes of Liberty just put up a new audio interview with him. Click here.

I voted against Proposition 215, the so-called Compassionate Use Act, which legalized marijuana use here in the nation’s largest pot-growing state for — wink, wink, nod, nod — “medicinal purposes.”

That’s why it is rather ironic that I find myself compelled to come to the defense of the 1996 law, which the California Supreme Court’s seven justices this week unanimously agreed to review.

It’s not that I have changed my mind about Prop. 215 over the past 16 years.

I still believe it was a Trojan Horse sponsored by all-too-clever interests whose ultimate aim is to decriminalize use of not only cannabis, but also cocaine, heroin, crystal meth and every other currently illegal drug. I also remain troubled that the Compassionate Use Act brazenly contravenes longstanding federal drug law.

So why am I defending Prop. 215? Because it was approved by 56 percent of California voters. Because I think it a mockery of the democratic process when judges overturn the results of a public plebiscite.

The temptation for the 44 percent of us who voted against Prop. 215 is to applaud the state’s highest court for addressing itself to the continuing controversy the law precipitated.

To urge the justices to allow local governments throughout the state to ban marijuana dispensaries if they see fit. To strike down the Compassionate Use Act altogether on grounds that it violates federal law.

But the time for the courts to strike down Prop. 215 was back in 1996, before the measure actually made the state ballot. Not after the measure was approved by the voters. Not 16 years after the fact.

If the forthcoming court review of Prop. 215 was an aberration, perhaps it would not so offend my democratic (small d) sensibilities. But California judges and courts have been notorious over the years in nullifying the expressed will of the state’s electorate.

Other Initiatives

In 1994, Proposition 187 was approved by 59 percent of California voters. The Save our State initiative would have prohibited illegal aliens from receiving public education, health care and other taxpayer-funded entitlements.

However, it was declared unconstitutional by federal judge Mariana Pfaelzer, a liberal judicial activist appointed by President Jimmy Carter. When Gray Davis became governor, he decided not to appeal, effectively killing the law.

Proposition 209, the California Civil Rights Initiative, was approved by 54 percent of voters in 1996, the same year Prop. 215 won passage. It prohibited the state from considering race, sex or ethnicity in public employment, public contracting and public education.

It was initially stuck down as unconstitutional by federal judge Thelton Henderson, yet another liberal judicial activist appointed by Carter. However, a three-judge panel of the 9th U.S. Circuit Court of Appeals subsequently upheld the law.

Props. 22 and 8

In 2000, Proposition 22 was approved by an overwhelming 61 percent of California voters. The Knight Initiative, as it was known, specified that only marriages between a man and woman would be lawfully recognized in the Golden State. Eight years later, the California Supreme Court struck down Prop. 22 as unconstitutional.

The court’s action led, in turn, to Proposition 8, the California Marriage Protection Act. That 2008 constitutional amendment, which prohibited same-sex marriages, was approved by 52 percent of the electorate.

Prop. 8 was overturned in 2010 by federal judge Vaughn Walker, who retired not long after his ruling and announced that he was in a long term same-sex relationship. His ruling was stayed and the fate of the voter-approved law may ultimately be decided by the U.S. Supreme Court.

California’s initiative system, which worked just fine for much of the past 101 years, has in recent decades become a democratic bait-and-switch. The people of the state are supposed to have the power to enact law at the ballot box, but the reality is that judges and courts — all too often politically motivated — decide what voter-approved propositions may and may not become state law.

That’s why initiative system needs a fix. The suggestion here is a judicial tribunal that previews proposed propositions before they reach the ballot. Before millions of dollars are spent for and against the measure. And before — rather than after — the measure is approved by the state electorate.

Such judicial preview will not all together prevent the courthouse assault on direct democracy we’ve witnessed over the past couple decades. But it will raise the bar considerably for judges and courts that presume to thwart the will of the electorate.

— Joseph Perkins