What the Supreme Court Affirmative Action Ruling Means for CA

Since 1978, the U.S. Supreme Court has allowed universities to use affirmative action as a tool to increase racial diversity, but on Thursday the court slammed the door on the practice, finding it unconstitutional.

The decision is extremely controversial and there is much to be said for the court’s reasoning. But for present purposes, we must focus on a narrower question: the impact of the decision in California.

At public universities like UC Berkeley, the immediate impact should be small. But private schools like Stanford will be hit hard.

The reason is clear: California law has banned affirmative action since 1996, when Proposition 209 was passed. So for schools like Berkeley, the changes in the court’s ruling don’t represent a big change. Scholars will no doubt study the opinion to see if some details of the process need to change, but essentially the court imposed on national schools the same rules that already apply in California.

For private schools, the impact will be broader because they were not subject to California’s ban on affirmative action. If they accept any form of federal funding, they will have to comply with the Supreme Court’s new ruling. This will likely mean adopting something similar to the application process used in the UC system. However, they remain free to maintain other aspects of their admissions process such as personal interviews or preferences for the children of alumni or major donors.

Some schools may try to take advantage of a door the court left open by justifying affirmative action as a remedy for past racial exclusion. Past precedents concerning the remedial use of affirmative action in government fallows will be scrutinized, assuming they can make a case. Schools will have to show that there is a clear connection between their programs and instances of past wrongdoing.

Despite the failure of a recent effort in 2020, talk of repealing Proposition 209 continues. Whatever California does with its own law, federal law will continue to limit what public schools can do. Unless they can prove that a program is aimed at unequal admissions, the court’s ruling would make affirmative action in college admissions illegal even if Proposition 209 goes away.

In addition to college admissions, the court’s ruling will affect other racially oriented programs nationally. The court said it had found that only two government interests were strong enough to justify such programs: One was to remedy “specific, identifiable cases of past discrimination that violated the Constitution or law.” The other is “avoiding immediate and serious risks to the safety of people in prisons, such as race riots”.

Arguably, even outside of prison, an acute risk to people’s safety would be relevant, but this still seems like a very narrow exception.

A proposed constitutional amendment in the California Assembly would allow race-based programs if there is strong evidence that the program will “for the purposes of increasing life expectancy, improving educational outcomes for, or lifting out of poverty specific groups.” Programs related to sexuality or gender are also allowed, but they raise different legal issues, and that’s a discussion for another day.

The affirmative action case does not speak directly to the constitutionality of the initiative of the National Assembly. However, given the very narrow description of past Supreme Court precedents, such as the prison exception, it seems doubtful that the Assembly’s initiative will pass. The overall improvement in life expectancy, educational outcomes, or poverty rates is simply not comparable to the immediate safety risk described by the court.

With programs that consider an individual’s race already excluded, addressing racial disparities will be more difficult. But this is nothing new for California schools and state government.

The rest of the country can look to us for guidance on how to meet the challenge.