State Finds Itself Hemmed In

California, among the most ethnically diverse states in the nation and long a bellwether on affirmative action, now finds itself with fewer options for diversifying its public universities than nearly all other states.

The predicament stems from Proposition 209, the 1996 ballot initiative that banned racial and ethnic preferences in state institutions. The U.S. Supreme Court decisions Monday affirming limited consideration of race in college admissions do not directly apply here.

Some legislators and advocates on both sides of the affirmative action debate say they expect the rulings to prompt reexamination, and perhaps changes, in the interpretation or application of the initiative. Some foresee an effort at repeal, which would require another ballot measure.

Proponents of affirmative action seized on the rulings immediately in arguments against the ban.

Hours after the rulings, some Democratic legislators vowed to push the University of California system to adopt new policies to boost minority enrollment -- or to face their imposition by lawmakers.

Fabian Nunez (D-Los Angeles), the Assembly’s majority whip, said he favors returning race as a consideration in the admissions process at state schools and will raise the issue at the next meeting of the Latino Caucus, an influential legislative group.

“Race ought to be considered.... The makeup of our university system, in the undergraduate, graduate and professional schools, ought to look like California.... In public institutions, we have a fiduciary responsibility to see in this democracy our tax dollars are working for everybody.”

Some constitutional scholars doubted, however, whether UC has the flexibility under Proposition 209 to go beyond current policies.

Maria Blanco, national senior counsel for the Mexican American Legal Defense and Educational Fund, said her organization and its allies might push to narrow the reach of Proposition 209. “There may be legislative efforts to say, ‘Look, the court upheld’ ” the acceptability of considering race, “ ‘so California should be able to do the same thing.’ ”

Blanco added that Monday’s ruling “definitely has made people feel that Proposition 209 is out of step with the rest of the country.”

Even Ward Connerly, a UC regent and leader in the battle in the ‘90s to pass Proposition 209, said that the Supreme Court ruling would probably encourage opponents of the measure to push for a repeal and, in the meantime, to seek ways to elude its restrictions.

“This probably does embolden members of the Latino Caucus, for example, to say: ‘The court finds no problem with the use of race -- now go ahead and do it.’ ”

Connerly said, however, that a repeal effort “would be foolish. While the court is saying you may consider race without violating the Constitution, that is not the same as asking, ‘Do you want to do it?’ I think the people of California are just as resolved now as ever” that they don’t want to repeal Proposition 209.

Sen. Rico Oller (R-San Andreas) said any legislators who push to restore affirmative action “will find themselves in dire political straits,” because a majority of Californians backed Proposition 209.

UC spokesman Michael Reese said the system “would welcome legislative action on this to give us the kind of clarity we need.” He said UC needs to respect the will of the voters, while striving for diversity.

He suggested that UC’s competitiveness could suffer if it is unable to take race or ethnicity into account.

“Our competitors, which are the Stanfords, the Harvards and the Yales, have at their disposal a set of tools for creating diverse classes of students that aren’t available to the University of California.”

Adding to California’s isolation among prestigious universities is another major public university system’s intention, after dropping race as a consideration, to move swiftly to restore its use in admissions.

The development puts “the state of Texas on the same basis as the rest of the country with respect to federal law and gives us latitude

The University of Texas’ situation is different from UC’s, however, because the Texas system was not forced by a ballot initiative to stop considering race. It was ordered to do so by a court in 1996.

The pressure on UC to maintain or increase diversity is likely to be more intense for graduate and professional programs.

The UC system actually has slightly higher percentages of underrepresented minorities among undergraduates than it had before Proposition 209’s implementation. That is largely because of outreach efforts, a policy of accepting the top 4% of graduates from every high school and consideration of students’ personal hardships and achievements alongside academic qualifications.

But the percentages of underrepresented minority students at the most selective schools, UC Berkeley and UCLA, still have not fully rebounded.

And at the most competitive graduate and professional schools, percentages of underrepresented minorities are lower than at the undergraduate level.

“The real obstacle in California is Proposition 209,” said Erwin Chemerinsky, a professor of constitutional law at USC and a supporter of affirmative action. “Hopefully, over time, as California sees the benefits of affirmative action in other parts of the country, it might lead to a repeal or at least a modification.”