3. Dismantling Diversity
In 1993, two San Francisco Bay Area academics—Glynn Custred and Thomas Wood—introduced a ballot initiative that in one vote promised to eliminate affirmative action throughout the state of California. Custred and Wood viewed affirmative action as both unfair and contrary to their own interests. Custred was a white anthropology professor at California State University at Hayward who was upset by, among other things, the hiring and firing practices employed by his university to create and maintain racial diversity on the faculty. Consideration of race had been a factor in a number of hiring decisions and had also threatened to override the seniority system in determining which professors should be laid off in a budget crunch. Custred felt it was unfair that as a senior, white male professor he might be asked to leave, while a junior, female or minority professor might be allowed to stay in order to maintain a diverse teaching staff. His distaste for affirmative action prompted him to help start the California chapter of the National Association of Scholars, which billed itself as "the only American academic organization dedicated to the restoration of intellectual substance, individual merit, and academic freedom in the university." Through this organization, Custred met Thomas Wood.[1]
Also frustrated with affirmative action hiring policies, Wood blamed these policies directly for his difficulty in finding a job as a white university professor. After working outside of academia for several years, Wood had applied for a position at San Francisco State University as a professor of religious philosophy but was turned down, he felt, because the position was earmarked for a minority candidate.[2] He thought it unfair that
The initiative process—adopted into the state constitution in 1911— had been designed to give citizens a way to bypass the government and enact new laws with a popular vote. However, the day when ordinary citizens could successfully propose an initiative appeared to be long gone. The initiative process had come to be used more often by well-organized political and economic entities, particularly on the right, and by incumbent politicians from the governor on down, than by "the people." It was still "the people" who voted on the initiatives, but interest groups, backed by media consultants, direct mail specialists, pollsters, and others, usually financed the costly signature drives required to get measures on the ballot and the advertising campaigns that put them over.[3]
Custred and Wood were not prominent or wealthy men, nor were they part of political or economic organizations interested in placing an anti–affirmative action measure on the ballot. They were ordinary men who thought that if they wrote a legally sound and politically viable initiative on affirmative action, they would be able to get the backing necessary to mount an initiative campaign. They spoke with countless constitutional law professors and political consultants to develop the language of an initiative. A look at the polls told them that voters disliked quotas and preferences, but distinguished these from affirmative action policies, which they still tended to support. So without using the words "affirmative action" Custred and Wood wrote their initiative—the California Civil Rights Initiative (CCRI)—which amended the state constitution and prohibited affirmative action in public education, employment, and contracting.[4]
In October 1993, the authors filed their initiative with the state attorney general in time to coincide with a newfound interest in the prohibition of affirmative action in the state legislature. Assemblyman Bernie Richter, a Republican from Chico, a rural district in California, had proposed
Ward Connerly was an African American businessman from Sacramento and a regent of the University of California who adamantly opposed affirmative action. Though he was black, he claimed Indian, Irish, and French Creole blood. Originally from Louisiana, Connerly had grown up in Sacramento under the wings of his grandmother, who was fairskinned and, according to family members, barely "tolerated black people." A cousin of Connerly once told a New York Times reporter doing a story on Ward that his grandmother "thought she was better than black people," and that this had rubbed off on the young Connerly.[6] The cousin stated that growing up, "Ward always disliked being a child of color. He [thought he was] white." Nevertheless, graduating from Sacramento State University in 1962, Connerly knew his dark skin was an impediment to getting a job in the private sector. He had done well in school, had become student body president, and had held a full-time job during college. But as Connerly later reflected, "Back in the sixties if you were black and you graduated from college, you felt the [only] option available was government." So Connerly went to work in the public sector at the state Department of Housing and Community Development, where he met Pete Wilson, the aspiring politician who was then the head of the new Assembly Committee on Urban AVairs and Housing in the state legislature.[7]
In many ways, Pete Wilson was the antithesis of Ward Connerly. Originally from Illinois, Wilson had attended private schools, graduated from Yale University, and gone on to enroll at Boalt Hall Law School. It was an era when competition to get into Boalt was minimal for white men from good schools, and Wilson enjoyed the privilege of his circumstances. He was an indifferent student and it took him four tries to pass the state bar exam, though this hardly mattered to his political career. Coming out of law school, he ran for a seat in the State Assembly and won. As the head of the Assembly Committee on Urban AVairs and Housing, Wilson heard about Connerly, an up-and-comer, and recruited him to work for the assembly committee as its chief consultant. Though
Wilson soon left the assembly and went on to become the mayor of San Diego, then a senator in the United States Congress, and finally the governor of California. During this time, Connerly left the public sector and started Connerly and Associates, which consulted for local governments that needed to meet changes in planning laws put into place by Wilson when he was in the assembly. Connerly's business thrived, and he supported Wilson's political ascent with generous campaign contributions. As governor, Wilson did not forget his friend, and when it came time to make appointments to the Board of Regents of the University of California, Wilson named Connerly to fill one of the seats. He did so, however, under pressure to diversify the regents. Wilson had wanted to appoint another longtime friend who was white to the post, but Wilson's critics promised a revolt, arguing that the appointment of another white millionaire would not broaden the board's outlook. Wilson also faced the constraint of a 1974 revision of the state constitution that required the Board of Regents to reflect California's "economic, cultural, and social diversity … including minorities and women." As of 1993, the board's eighteen appointees—out of a total of twenty-six board members—included twelve white men, four women, two Latinos, one Asian American, and one African American.[9]
In a move to appease his critics and diversify the regents, Wilson appointed Connerly. Lydia Chavez, in her book The Color Bind, noted the irony of the race-conscious appointment. "In a sense," Chavez wrote, "the Connerly appointment reflected Supreme Court Justice Powell's recommendations on affirmative action in the Bakke case. Connerly was entirely qualified—he had proven himself a capable businessman—but race was among the many factors that Wilson considered." The irony lay in the views of the new regent, who opposed the race-conscious practices that had led to his appointment and, previously, had helped his company win public contracts as a minority-owned firm.[10] As a regent, Connerly was outspoken about his views on affirmative action and questioned the continued use of race-conscious policies at the University of California. In August 1994, he focused his attention on the issue when he was approached by two white parents, Jerry and Ellen Cook, who believed that their son had been kept out of medical school by race-conscious admissions practices that let in less-qualified minority students. Connerly examined the admissions process and stated that he was shocked to find out
Speaking in support of AB 47, Connerly told the standing-room only audience, which included Glynn Custred and Thomas Wood, that "[t]here was a time when affirmative action had a value. … There was discrimination in all sectors of California and we needed some sort of shock treatment." But, he asserted, "The time has come to take off the training wheels." Despite Connerly's support and the support of other opponents of affirmative action, Richter's bill failed to make it out of committee. Nevertheless, Custred and Wood were impressed with Connerly and introduced themselves as the authors of an initiative in which Connerly might be interested. Connerly was indeed interested and promised to keep in touch with the two men. The California Civil Rights Initiative had not attracted the support necessary to get off the ground, and the short-lived campaign was over for the time being, but another race-based initiative—Proposition 187—was gaining momentum and cutting the electoral path for a reincarnated CCRI to follow.[12]
Proposition 187, otherwise known as the "Save Our State" or "SOS" initiative, was written to curb illegal immigration, denying undocumented children access to public schools and excluding illegal aliens from virtually all other public services, including health care. Most of the provisions of the initiative were considered unconstitutional, but supporters of 187 did not care. At a time when the economy was suffering from a recession and many whites blamed immigrants—particularly those from Mexico—for drawing down public resources, supporters of 187 wanted to send a strong message to immigrants that they were not welcome. Because the demographics of the state were also changing and immigrants threatened to tip the racial balance, the xenophobic and exclusionary overtones of 187 had additional appeal to many white voters.[13]
The vote on 187 coincided with the gubernatorial election in which Pete Wilson was running for a second term. Trailing behind his opponent Kathleen Brown, Wilson made Proposition 187 his issue and appealed directly to white voters. He ran campaign ads showing shadowy figures, presumably illegal aliens, running across a road while a narrator said eerily, "They keep coming." The ad was a covert, though hardly subtle, assault on all of California's ethnic minorities, despite Wilson's vehement
The victory also demonstrated that California was fertile political ground for racial wedge issues—issues that could split whites (particularly white males) away from the Democrats and send them to the Republicans. White men had voted 63 to 37 percent in favor of Proposition 187—nearly the same proportions in which they voted for Wilson.[16] In addition, the victory demonstrated the advantage of taking a racially divisive issue directly to the voters. Though the population in California was changing rapidly, and in a few years the state would no longer have a majority racial or ethnic population, the voting population remained overwhelmingly white, and to a lesser extent male. The consequences of these demographics were clear. If proponents of a racially divisive initiative could successfully place a measure favorable to whites on the ballot, voting demographics would be on their side. This boded well for Custred and Wood, who sought once again to bring their initiative to life.
The success of Proposition 187 gave the California Civil Rights Initiative a boost. Custred and Wood had set up an office on Martin Luther King Jr. Way in Berkeley and, until the passage of 187, had received few phone calls from people who could help turn the idea of an initiative into a reality. But this changed in the aftermath of the election. On December 27, 1994, the Washington Post published an article drawing national attention to the changes taking place in California: "California voters gave the nation a jolt from the right last month when they passed Proposition 187. … Now the state could be on the verge of doing it again. Conservatives hope to place [an] anti-affirmative action measure … on the ballot." Wood told the reporter from the Post,"The tide has turned: there is an anti-affirmative action issue coming down the pike in California that is going to make 187 look like kindergarten." After the Post article, Custred and Wood were contacted by a group of Republican men who helped them put together a campaign team to try, for the second time, to get the CCRI off the ground. However, no one on the team had fund-raising experience
In January 1995, Ward Connerly put the issue of affirmative action at the top of the news when he called for a "review" of affirmative action at the University of California.[18] He used the term "review" euphemistically to signal the beginning of an aggressive campaign to eliminate racebased policies at the university. Describing affirmative action as "unfair," he told the regents, "I want something in place that's fair." As Lydia Chavez recounted, "The impact of a successful black man publicly questioning affirmative action in the name of fairness was powerful. … [I]f a black regent had lost faith in affirmative action, how could others keep the faith?"[19]
For minority students at Boalt Hall, the question was not about faith, but about reality. For many of these students, affirmative action was about fairness. It was about giving traditionally underrepresented students a chance to pursue a legal education and correcting for embedded preferences that worked to their disadvantage. It was also about welcoming and supporting diversity within the law school and in the larger society. Without affirmative action, Boalt would be a different place, and many minority students understood that they would not be included at the prestigious public law school. Shortly after Connerly called for a review of affirmative action, minority students at Boalt received hate mail, foreshadowing the demise of race-inclusive policies and race-sensitive attitudes. On February 11, 1995, around the time when fall-semester grades were posted, a first-year law student discovered the following message (uncorrected for grammar and punctuation) in her box and the boxes of fourteen other students of color:
Rejoice you cry baby Niggers it's affirmative action month. A town hall meeting will not save you the wetbacks or the chinks. Your failures are hereditary and can't be corrected by these liberals. Look around Boalt Hall besides the few hand picked affirmative action professors this is a quality law school. Clinton nomina tion of Foster another unqualified monkey is similar to your existence here at Boalt a failure. When I see you in class it bugs the hell out of me because you are taking the seat of someone qualified. You belong at Coolie High Law don't you forget!
This was the second of two flyers distributed to first-year minority stu dents. The first had been distributed the previous semester, on December 13, 1994, the first day of fall exams, and read, "affirmative action sucks!!!! don't flunk out!!!!" on one side, and on the other side, next to a photocopy of an article reporting the resignation of former Surgeon General Jocelyn Elders, it read, "clinton and tien agree: monkees belong in the jungle hasta la vista sayonara sans blague respondez sil vous plait."
Appalled by, but not unfamiliar with, these hateful comments, the black student group at Boalt Hall, the Law Students of African Descent, responded:
We are both angered and disappointed, but unfortunately not surprised, by this hateful gesture. Beyond hurting the sensibilities of those targeted by it, hate speech creates a hostile environment where students of color do not feel safe or comfortable in the larger community. Despite the challenges such an affront cre ates, we want the entire student body to know that this type of cowardly act will not deter us from striving to excel. We will not apologize for being here and we certainly are not leaving (without JDs). We will not, however, isolate ourselves from other people at Boalt who understand the value of our diverse environment.
We abhor the note as a cruel and demeaning attack, but recognize that it tangentially references issues which elicit strong opinions within the Boalt community. Affirmative Action and diversity in faculty hiring are currently debatable topics throughout the state and the nation. We do not oppose civil and respectful discourse on these matters; as a group, we seek to promote tolerance and inclusion. We will continue to advocate the atmosphere of openness promised to us all at Boalt. We request that all like-minded individuals stand together against those who would interject hate into our community.
The administration and faculty did not immediately respond, and mi nority students were upset by what they viewed as an attempt by the administration to cover up the incident; not until minority students brought the hate mail to the attention of the press did the administration and faculty publicly condemn the incident. Echoing the 1993 admissions policy, administrators and faculty issued a statement that read, "We reaffirm our commitment to keeping Boalt Hall a place where diversity and excellence are understood to be consistent, and are consistently honored." Minority students felt betrayed by the law school, which did little more than issue this public statement, and felt more alienated at Boalt. One African American student commented, "The first year of law school is already difficult, and there is a lot of pressure on you as a minority to do well and prove yourself, and then to receive hate mail like that is a real
The truth was that at Boalt, despite the new leadership of Dean Kay, minority students continued to feel marginalized. Though Boalt endeavored to enroll a "critical mass" of minority students, their number still fell short of their representation in the population, and long-standing concerns about more relevant coursework, more faculty diversity, and a more supportive environment remained largely unresolved. In fact, in the spring of 1993, Latino law students at area law schools had conducted an analysis of how different law schools fared in their commitment to diversity. The students convened at Boalt to announce their findings as part of a rally for diversity. In their analysis, Boalt was rated mediocre, and Latino students pointed to problems and suggested areas of improvement. Dean Kay appeared before the crowd and rebutted student assertions that Boalt had fallen short on its commitment to diversity. The students at the rally were dismayed that the dean, whom they considered to be a pioneer of civil rights, did not seem to recognize the problems they had identified.[22]
Kay left students to continue with their rally and stepped onto the grassy Weld in front of the courtyard, to practice throwing a baseball in preparation for the following day, when she would throw the opening pitch at the Oakland A's baseball game. A photographer who had come to cover the rally snapped a picture of the dean practicing her pitches against the backdrop of frustrated students. The scene seemed symbolic of the dean's treatment of minority student concerns.[23] Unlike former Dean Choper, Kay was the first to pursue diversity at the law school. But much like him, she believed Boalt was doing all that it could on the issue. This was perhaps a practical view. The faculty remained mostly white, male, and conservative, and Dean Kay knew from more than thirty years of experience that the faculty, which made all major decisions at the law school, would only move so far and so fast on issues of diversity.
In February 1995, two weeks after the hate mail incident at Boalt, the state Republican Party held its semiannual convention, pushing California one step closer to deciding how it would distribute opportunity in the state. At the convention, Governor Wilson sought to use affirmative action, as he had used illegal immigration, to create a racial wedge issue that would fuel his political career. Though he had promised his supporters
California was a must-win state in the 1996 presidential election, and President Clinton understood the demographics of the voting population—it was predominantly white and male. Affirmative action was quickly becoming a Republican cause, and already Speaker of the House Newt Gingrich and all the leading Republican presidential aspirants, including longtime affirmative action supporter Senator Bob Dole, had endorsed the CCRI.[25] President Clinton responded by steering a middle course, attempting to address the concerns of frustrated whites whose votes he needed to win the election while not offending minorities, who constituted his traditional support base. He refrained from unequivocally supporting affirmative action and instead, in February, called for a review of all federal affirmative action programs. Seeing how vulnerable Clinton was to the divisive issue, Republicans pushed it even further. They had less to lose and everything to gain in opposing affirmative action; they sought the white vote and had no minority support base that they worried about losing.
Senator Dole, the Republican front-runner in the upcoming primaries, asked the research staff at the Library of Congress to compile a summary of all the affirmative action programs operated by the federal government so that he, as well as President Clinton, could review them. In March, attacking affirmative action on the Senate floor, Dole declared, "Race-preferential policies, no matter how well-intentioned, demean individual accomplishment. They ignore individual character. And they are absolutely poisonous to race relations in our great country." In that same month, the bipartisan Glass Ceiling Commission that had been created at the suggestion of Dole as part of the Civil Rights Act of 1991 completed its review of racial progress in America. The commission stated, "Before one can even look at the glass ceiling, one must get through the front door and into the building. The fact is large numbers of minorities and women of all races and ethnicities are nowhere near the front door." Nevertheless,
In California, Governor Wilson and Ward Connerly kept affirmative action in the news. Governor Wilson, having embraced affirmative action as his new target, issued a series of executive orders ending those state affirmative action programs that were subject to his sole discretion. With unnerving zeal, he also filed suit against his own state to end affirmative action programs that he had once supported.[27] In a similar vein, Ward Connerly declared, "We need to give affirmative action, as a system of preferences, a decent burial." He stated ominously, "[T]he digging should start at the University of California."[28] Two weeks later, UC President Jack Peltason, who had replaced former President David Gardner, issued a report concluding that the elimination of affirmative action would mean sharp decreases in the numbers of African American and Latino students attending the university. The report found that the consideration of socioeconomic factors—an often-suggested replacement for the considerations of race—would not mitigate this result.[29] Connerly responded that he was dubious about claims that black admissions would drop so dramatically. Expressing his resolve, he stated, "I don't think this information is going to detract me from the path I'm on."
At Boalt, the architects of the affirmative action program at the law school expressed their support for its continuation. In an interview discussing the origins of affirmative action at Boalt, Professor Jan Vetter, who had served on the law school's first affirmative action Admissions Committee and had helped defend affirmative action in the Bakke case, commented, "We thought [it] was a good idea [then]. We still do."[30] Vetter had joined the faculty just as affirmative action was being put into place and throughout his time at the law school had stayed heavily involved in the admissions process. Affirmative action was something he believed in.[31]
In the course of his life, Vetter had come to realize the necessity and value of race-inclusive policies. He had started his education as a white child in a segregated school system in Kansas City, Missouri. Indicative of the times, however, he was unaware of the segregation and was not cognizant of the substantial black population in the city. His only contact with a black person in his early childhood was with the maid of his house and her child. He subsequently moved to Los Angeles and attended a predominantly white but somewhat integrated high school, where he came to know several Japanese and Latino students as well as
However, little more than a decade later, in 1965, riots broke out in Watts—a mostly black section of the city close to downtown Los Angeles, where Vetter was then practicing law—shocking many, including Vetter, out of their naïveté. Vetter remembered, "Along with a lot of white people in Los Angeles who had no significant relations with the city's black residents, I had the notion that Los Angeles, and Watts specifically, was not like, for example, the South Side of Chicago or Harlem, and that Watts was a happier place and that relations between blacks and whites were better in Los Angeles than in those places or in the South." Looking back on the incident, Vetter reflected, "It seems to me that the shock of the Watts riots and the riots that followed in many other cities over the next few years had a great deal to do with creating the climate of opinion in which affirmative action was more or less spontaneously and simultaneously developed in higher education across the country."
In affirmative action, Vetter saw hope. His first exposure to affirmative action was not at Boalt as a new professor of law in the late 1960s, but in the army, in the late 1950s. At that time, the army was the most integrated institution in America, and this was so because of a conscious policy of racial inclusion. Vetter found the army to be very democratizing and very diverse. Certainly there were still instances of discrimination, but "people who were expected to get along, got along." They lived, worked, and drank together, and, in the process of interacting, they learned to respect one another and found common ground. At Boalt, affirmative action had resulted in the admission of minority students who would not have otherwise been admitted. To Vetter, this was important for two reasons. First, the admission of minority students had produced minority lawyers who represented the school well in every sector of the legal profession. Second, paralleling his experience in the army, the admission of minority students had forced people of different races to interact and had fostered varying degrees of cross-cultural awareness, understanding, and friendship. Getting below a superficial level was hard, but in Vetter's
Joe Jaramillo (class of 1995), a third-year student at Boalt, felt the same.[33] Jaramillo was a Chicano[34] student who grew up in a racially mixed neighborhood and went to a racially mixed high school in Vallejo, a medium-sized, working-class city in the San Francisco Bay Area. He came from a world where people of different races appreciated one another. But when he enrolled at UC Davis as an undergraduate student, he discovered that this was not always true in other places. At Davis he was surprised to find, for example, that Chicano literature was belittled and devalued at the university. He took this personally and became involved in multicultural issues, joining in student efforts to get the university to require an ethnic studies course so that students would be exposed to cultures other than their own. Jaramillo reasoned that students could not appreciate differences between people if they did not even understand those differences, and perhaps an ethnic studies course would help. Apart from courses, Jaramillo thought it was important to interact with students of different racial backgrounds, and this he was able to do, first at Davis and then at Boalt, where he found his classmates to be quite diverse.
At Boalt, Jaramillo met for the first time students who were Bolivian, Nicaraguan, Taiwanese, Vietnamese, and Native American. This diversity was meaningful to him. He valued getting to know students from different cultural backgrounds, to learn where their families came from and what sort of things formed their ideas and beliefs. Interacting with these students destroyed certain stereotypes he had and gave him a better sense of how different people viewed the world. In this exchange of thoughts and experiences, Jaramillo also shared his background, and gave his classmates insight into the views and values of a Chicano from Vallejo. Through their interactions, Jaramillo and his classmates learned not only about their differences, but also about their similarities, their shared interests in sports and music, as well as their interests in politics and the law.
Jaramillo was concerned about the path that Ward Connerly was on— it steered too close to home. Jaramillo was a product of affirmative action and knew that without it he would not be at Boalt. He had been involved with the admissions process at the law school and knew that traditional admissions criteria were not finely tuned to select the people who would succeed and to keep out the people who would not. More important, he knew that the consideration of traditional criteria alone, without the additional consideration of race, would preclude many mi
Professor Jan Vetter was also worried about the direction in which Ward Connerly was headed. Vetter thought that at the University of California the only way affirmative action could be effectively challenged was if a black regent led the charge.[35] Affirmative action had been under attack for some time, but its critics were mostly white neoconservatives who could be accused of ulterior, racially self-serving motives. However, as a black man, Connerly brought legitimacy to the view that affirmative action was wrong. His role in opposing affirmative action was pivotal, and its effect on others could not be underestimated. Professor Vetter watched with great interest and deep concern as the events of the summer began to unfold.
On May 18, the regents held a hearing to review the affirmative action programs employed at the university, and particularly at the law schools. Dean Herma Hill Kay was invited to speak and stated her unequivocal support for affirmative action. She remarked, "The need to diversify the legal profession is not a vague liberal ideal: it is an essential component of the administration of justice. The legal profession must not be the preserve of only one segment of our society. Instead, we must confront the reality that if we are to remain a government under law in a multicultural society, the concept of justice must be one that is shared by all our citizens.[36]
The dean forewarned the regents that if Boalt were to admit students only by reference to their LSAT scores and undergraduate grades, the numbers of underrepresented minorities—African Americans, Latinos, and Native Americans—would fall precipitously. She noted that had the entering class of 1994 been admitted solely on the basis of numerical indices, the numbers of underrepresented minorities would have dropped from 66 to 9, and the total percentage of minority students, including Asians, would have been reduced from 40 percent to 14 percent.[37] Drawing from the Boalt admissions policy, she added, "These numbers are insufficient to create a critical mass of minority students who can help sustain the robust exchange of ideas necessary for a diverse education in the law."[38] Dean Kay echoed the testimony of all other university administrators and officials who came before the regents that day. She, like they, argued for affirmative action programs that had proven to be effective in increasing diversity and maintaining excellence at the University of California.
Although the hearing was held during final exams, a group of dedicated students from across California attended the hearing at the Mount
Turning a deaf ear to students and ignoring statements made by administrators, Connerly released a proposal on July 5 to abolish all racebased admissions and announced his plans to bring a vote to the full Board of Regents on July 20.[40] The next week, President Peltason sent a letter to Connerly stating it would be a "grave mistake" to dump UC affirmative action programs. He wrote, "We are a public institution in the most demographically diverse state in the union. Our affirmative action and other diversity programs, more than any other single factor, have helped us prepare California for its future. Any action now to dismantle our diversity programs would be premature and against the best interests of the University and California.[41]
The letter was backed by the university's vice presidents and by chancellors of all nine campuses. They unanimously urged, in the strongest possible terms, the continuation of affirmation action policies at the university. In a separate statement, which President Peltason also signed, they declared, "California cannot afford the economic and social consequences of failure to foster leadership for the 21st century. Such leadership must be able to negotiate the complexities of a global economy and multicultural world. Cultivating a campus community of diverse ethnicities, ideas, cultures, talents, races, interests and values must remain at the center of the University's obligation to the state and the nation. The University must remain committed to a diverse and rigorous intellectual environment.[42]
In the weeks leading up to the vote, national events focused attention on the drama unfolding in California. In June, the U.S. Supreme Court struck a heavy blow against affirmative action. In a case called Adarand Constructors v. Pena, the Court struck down a program that set aside a portion of highway construction contracts for minority firms, declaring that all racial classifications by federal agencies were inherently suspect and presumptively invalid, and were subject to strict scrutiny.[43] The Court did not declare all affirmative action programs to be unconstitutional, but it raised the bar of legal scrutiny. The Court had come to the
The Adarand decision gave President Clinton cover to pursue his middle course, and the day before the regents' vote, he concluded his fivemonth review of affirmative action. On the evening of July 19, Clinton delivered a nationally publicized speech in which he declared that "[a]ffirmative action has been good for America," and that instead of ending it, the country needed to mend it.[44] Affirmative action would be a front-page story the following day, and the vote to overturn it at the University of California—the country's premier public university—was not to be missed. By the time night fell in California, every major newspaper and network was in San Francisco, preparing for the meeting that would take place at the Mount Laurel campus the next day.
It appeared that Ward Connerly and Governor Wilson would carry the day. They had made repeated statements in the press that they had the votes to eliminate affirmative action at the university. Behind the scenes, it was believed that Governor Wilson had met and carried on phone conversations with a majority of the board members, seeking assurances from some and pressuring others to vote for the proposal. Governor Wilson had a lot riding on the vote. Passage of the proposal would likely give him the notoriety he needed to become a national contender in the presidential race. To Wilson, the proposal to end race-conscious programs at the university was not so much about good public policy as it was about good political strategy. The governor did not want any surprises on the day of the regents' meeting, and he made sure that the votes were counted and in the bag.
As the vote approached, Joe Jaramillo felt compelled to call Ward Connerly.[45] The vote seemed strategically timed to take place during the summer when students were out of school and less able to organize against the proposal. Students had really only become aware of the proposal in late spring and had not had time to mobilize an effective opposition. School was now over, and Jaramillo was worried that student voices were not being heard. In the middle of studying for the bar exam, Jaramillo called the office of Connerly and Associates in Sacramento and asked to speak to Ward Connerly. At the very most, Jaramillo hoped to get Connerly to reconsider his proposal. At the very least, Jaramillo wanted him to know that his proposal was affecting real students like himself and that if it passed it would shut out others like him.
When Connerly picked up the phone, Jaramillo began to make his case. He explained that he and his Chinese American friend in law school were prime examples of why affirmative action worked. His friend was someone who did well on standardized tests, had scored in the 95th percentile on the LSAT, and was admitted without affirmative action. Jaramillo had scored in the 79th percentile on the LSAT, and was admitted with affirmative action. Nevertheless, Jaramillo earned higher grades than his friend, who had been predicted to outperform him. The bottom line was that the lower standardized test scores of underrepresented minorities did not say anything about their ability to succeed at the university. Connerly disagreed. He stated that he worked in public contracting, and had seen what happens with racial preferences—unqualified people get the contracts—and the same thing appeared to be happening at the university. The conversation turned argumentative, devolving into a shouting match, and ended with Connerly yelling an expletive at Jaramillo and hanging up.
On July 20, the day of the vote, Ward Connerly and Governor Wilson marched into the regents' meeting confident that they would prevail. At the meeting, a number of public officials and civil rights leaders spoke before the regents, many urging them to delay their vote until the issue had been considered further. California State Senator Tom Hayden, who had been a civil rights and antiwar activist leader in the 1960s, warned the regents against a "Darwinian rationing of seats." Reverend Jesse Jackson urged the regents to reject outright the proposal to eliminate affirmative action, and in a moving statement explained, "I remember what it was like to live in a colorblind society—I was invisible." Calling for the continuation of race-conscious policies, Jackson stated, "In a color-caring society, each of our unique experiences would come into play, broadening our collective lives to bring compassion into a national dialogue on over coming race and gender inequality.[46]
Despite vocal opposition to the proposal and multiple pleas to delay the vote, the bitterly divided regents proceeded with the roll call. They would first decide on affirmative action in hiring and promotion and then on admissions. On the issue of hiring and promotion, the regents voted 15–10 to end affirmative action. Of the appointed regents, only two white regents—Roy Brophy, a Sacramento real estate developer, and William Bagley, a San Francisco attorney—voted against the proposal. The other appointees who voted "no" included Ed Gomez, a Latino student regent, Alice Gonzalez, a Latina and former state employee, and Tom Sayles, a black executive appointed by Wilson in 1994. The remaining "no" votes
The regents next turned to the issue of admissions and, with a vote of 14–10, ended affirmative action at the university.[48] The resolution they adopted—Special Policy 1 (SP-1)—stated, "[T]he University of California shall not use race, religion, sex, color, ethnicity, or national origin as criteria for admissions to the University."[49] With their vote, the regents dismantled the most effective means the university had ever had to increase racial diversity in the student body. Affirmative action policies that had been well reasoned and fine-tuned over the years were all at once and with very little consideration eliminated. Schools such as Boalt, which had adopted and implemented race-conscious policies to address racial inequalities and educational necessities, were left in a precarious position without a means to ensure diversity at their schools.
The vote to end affirmative action provoked an angry response. Amid police in riot gear, more than five hundred protesters just outside the meeting listened in disbelief as the results were announced. After the vote, Regent Roy Brophy, who had voted against ending affirmative action stated angrily, "The votes that came out were not based on what's good for the university. We didn't listen to the chancellors; we didn't listen to the faculty. We simply believed the best way to cure a sore throat was to cut the baby's head off."[50] Jesse Jackson charged the governor and the regents with "ramrod[ding] the academic community." He stated, "They didn't just run over students, they ran over the President of the university, the chancellors, the faculty, and others.[51]
The decision to end affirmative action, and the manner in which that decision was made, frustrated many in the faculty. Boalt Professor Robert Cole, who was particularly concerned with issues of governance, remarked, "This was very much a top-down decision that came out of the blue. There was inadequate consultation, and what there was took place too close to the decision making." Furthermore, he added, "It was a complete violation of the implicit rules of governance here, that the regents are not going to make decisions like this and certainly not without much more consultation."[52] Cole concluded, "The whole thing was like a coup.Indeed, it appeared that way. After Connerly called for a review of affirmative action in January, every piece of information and every administrator who spoke before the regents had made clear that affirmative action was working at the university and that without it, problems would ensue. Nevertheless, affirmative action had been eliminated a short six months after it was called into review.
Following the vote, Lieutenant Governor Gray Davis, a Democrat who had supported the continuation of affirmative action, stated, "[This is a] sad day for California."[53] But not everyone felt that way. On the Berkeley campus, an undergraduate student applauded the regents' decision and told a news reporter, "I think it is good affirmative action was started 30 years ago. Thirty years is one generation. I think that is enough time for minorities … to make it … without help."[54] Homer Mason, one of the early African American law students who had helped implement affirmative action at Boalt, read these comments and responded, "People who say that thirty years is enough forget about the long history of oppression in this country." He added, "We should be working toward policies of inclusion not exclusion. The regents' vote shows a lack of interest, care, or concern about minority students. In taking away affirmative action the regents have taken away hope for a number of talented and hardworking students, who still face discrimination and for whom opportunities are still hard to come by.[55]
Summing up the significance of the vote, one journalist wrote, "[The] vote places the [University of California] in the middle of the national debate over the future of racial preferences."[56] Wilson's ratings, which had been lagging in the national polls, shot up five points, and four days after the regents' meeting, he enjoyed his biggest fund-raiser yet.[57] On that same day, Senator Bob Dole held a press conference in Washington to announce that he and a congressman from Florida had just proposed legislation to abolish all federal affirmative action programs.[58] This new infusion of interest encouraged the authors of the California Civil Rights Initiative. With fresh financing within reach, Glynn Custred and Thomas Wood filed the CCRI for the second time with the state attorney general.
By the end of August, New Hampshire voters were watching television commercials boasting that Pete Wilson "was the first to outlaw affirmative action quotas in state hiring and end preferences for college admissions." Polls showed that voters responded favorably to the ads, and affirmative action promised to deliver Wilson into the running for the Republican presidential nomination. But Governor Wilson faced troubles at home. He had promised his financial backers that he would not run for the presidency, and many of his supporters refused to support his presidential bid. They needed him in California, if for nothing more than to prevent a Democratic lieutenant governor from becoming governor. This lack of support proved fatal, and in September, Wilson withdrew from the race.[59]
About that time the political pendulum began to swing when affirmative action programs received the public support of General Colin Powell—the first black chairman of the Joint Chiefs of Staff—who was more popular than either President Clinton or Senator Dole, the probable contenders for the presidency. Powell was not running for president, but both political parties courted him, and the media hung on his every word. Countering the rhetoric of neoconservatives directly, Powell told the press, "We should not deceive ourselves into thinking the playing Weld is equal. We should not deceive ourselves that we are a color-blind society." When asked about racial preferences, Powell said that the nation was "full of preferences" and added that the very politicians "who scream about quotas and preferences" are the ones who vote to give preferences to their corporate supporters.[60]
At Berkeley, students returned to school angered by the action of the regents and began to organize to put pressure on the regents to reverse their decision. At Boalt, students started a new group called Boalt Students for Affirmative Action (BSAA). Daniel Tellalian (class of 1998), a second-year Puerto Rican law and business student, was one of its founders. Over the summer, Tellalian had watched in disbelief as the regents dismantled affirmative action. He considered SP-1 to be an affront to minorities; it was blind to the educational inequities that persisted in California and negated the value of racial diversity in higher education. Moreover, it perpetuated a feeling of resentment against minorities that had begun with the passage of Proposition 187. With its racist overtones, Proposition 187 had been a wake-up call for Tellalian that minority rights were in danger. While participating in public protests against the ballot measure, he had been told, "Go home, this is our country." This had hurt him, but not as much as the hate mail he and other minority students received in their first year of law school. Tellalian had grown up in Los Angeles as one of a few Latino students in an overwhelmingly black elementary school and one of a few minorities in an overwhelmingly white high school, so he knew well the feeling of racial isolation. But it was not until he arrived at Boalt that he felt truly unwanted. He had been shocked by the hate mail and viewed it as a reflection of things getting worse. To him, the passage of SP-1 was a confirmation that hard-won advances in civil rights were tenuous at best. When he returned to school in the fall, Tellalian was determined to do what he could to respond to the attacks on racial and ethnic minorities in California.
Through BSAA, Tellalian and a small but committed group of law students met to learn how the regents had come to their decision. Tellalian
In early October, BSAA held a forum for the Berkeley community and invited civil rights activists and attorneys to speak on the politics of affirmative action. One speaker at the forum stated, "Berkeley is ground zero in the battle to preserve affirmative action." The eyes of the nation had turned to Berkeley to see how the most academically competitive as well as most politically active campus at the University of California would handle the dismantling of affirmative action. If there was going to be an organized protest, it would most likely originate at Berkeley. The California Civil Rights Initiative was coming down the pike—it would appear on the November 1996 ballot if the proponents were able to collect enough signatures—but there were already rumors that some of the regents were having second thoughts about eliminating affirmative action at the university. If students, faculty, and administrators who supported race-conscious programs could influence the regents to reconsider their decision, a reversal of policy might keep the CCRI from winning a majority of votes. In a compelling appeal, another speaker at the BSAA forum remarked, "Sometimes there is only one place to be. This is it. If students here stand up and refuse to be a mirror for society's racism and prejudice, but [instead are] a model [of resistance], other students will follow. You have two semesters, folks.[63]
On October 12, thousands of UC Berkeley students boycotted classes and gathered on Sproul Plaza as part of a full day of protest to restore the university's affirmative action policies. BSAA rallied students at the law school to join the protest, which had been organized by undergraduate students. Law students, several hundred strong, marched through the
State officials reacted to the rally with skepticism, saying the demonstration would have little effect on current policies. Ward Connerly commented, "I would characterize it as a protest that fizzled," and pointed to the fact that rally attendance was very small in proportion to the number of people affected by the decision.[65] Daniel Tellalian, who had helped organize the protest, thought differently. Defined in terms of the protests of the late 1960s—when tens of thousands of students took to the streets—the October
Admittedly, however, it was hard to sustain that kind of pressure on the regents. The core activists, such as Tellalian, had worked hard in the early part of the semester organizing students, educating the community, and putting together the protest, and by the second half of the semester they were exhausted. Though, when asked, the majority of students said they supported affirmative action, the greater student body was still not willing to miss a class or a television show or a party to defend affirmative action. In addition, many white students did not view the issue of affirmative action as affecting them directly and remained on the sidelines of the debate. One such freshman, who had not joined the October protest, stated in the Daily Californian,"I'm paying for my entire education. I'm not going to miss any classes. Not all of us have something to gain. I'm paying $25–$50 for this one session."[67] Minority students shouldered much of the burden of sustaining opposition to anti–affirmative action measures, but they alone were not enough to influence the regents.
Student efforts were supplemented, however, by faculty activism. Following the October 12 protest, the Berkeley campus faculty voted to ask the regents to rescind their July decision. In an emotional speech before the faculty, sociology professor Jerome Karabel asked rhetorically, "Is it acceptable for the governor to drag perhaps the greatest public university in the country into the lowest depths of political primaries," referring to Wilson's failed presidential bid. Karabel continued, "The Regents circumvented the University President, the Chancellors and the Academic Senates. We need to communicate very clearly this is not acceptable.[68] Over the course of the next month, faculty at all nine campuses passed similar resolutions and the UC Academic Senate voted 124–2 to call on the regents to rescind their vote.[69] Activism at the Berkeley campus and other campuses across California had a demonstrable effect on the regents, some of whom were now rumored to be preparing proposals to amend or rescind SP-1.
This was not good news for the CCRI campaign, which was having trouble qualifying for the ballot, and needed all the momentum it could get. The campaign had 150 days, until February 21, 1996, to collect a number of signatures equaling 8 percent of the last gubernatorial vote— 693,230 signatures—to place the measure on the ballot. But the drive to get signatures was riddled with problems. The campaign had no volunteer base, which meant having to build one from scratch, which took time and energy. The campaign was also conducting a paid petition drive, but even that was having trouble. The signature-gathering firms with which the campaign had contracted for seventy cents a signature were finding that women and ethnic minorities—who made up the bulk of their work-force—were refusing to collect signatures for a measure that ran against their own interests.[70]
Finally, the campaign was running out of money, and just before Halloween, the CCRI went public with the news that the campaign was broke, and if it was to be saved, the people "who talked the talk would also have to walk the walk." The campaign had only collected 200,000 signatures and in so doing had spent $500,000. Campaign managers estimated that they needed an additional $1 million to pay people to collect the remaining signatures.[71] Republicans across the state responded with
Connerly was a great asset to the campaign. Not only was he an effective speaker, astute politician, and impressive fund-raiser, but he had direct access to Governor Wilson, who offered his mailing list of small donors, asked state legislators to have their staff collect signatures, and even called on donors himself. For the first time, money was not a problem for the campaign. Less than a month after Connerly had taken over, Wilson raised more than $500,000—the bulk of which came from the Republican Party—and the campaign was able to attract more enthusiastic signature gatherers by paying more than $1 a signature. Connerly's color was also an asset to the campaign. "To be blunt, the fact that he was black was very important," stated one of the CCRI campaign managers. "It's like using affirmative action to defeat affirmative action." The campaign manager admitted "It's slightly unprincipled." But the fact of the matter was that it worked.[73]
At the regents' meeting in January 1996, several regents expressed concern about SP-1.[74] The regents had passed the resolution with only a brief discussion of the consequences of their policy, and they now understood there to be no effective substitute for the consideration of race in the admission of a diverse student body. The Task Force on Admissions Criteria found that, regardless of what other factors were considered, under a "race-blind" admissions policy the university would become less diverse. Two proposals were therefore put forth at the end of the meeting. One was to rescind SP-1 and the other was to change it from binding to advisory until the regents had undertaken a full evaluation of their policy. Discussion of the proposals was tabled for the next meeting in March. In the interim, Connerly announced that the CCRI campaign had raised the necessary money and collected the necessary signatures to place its initiative on the November ballot. At the subsequent regents' meeting, Connerly convinced the regents to postpone consideration of the proposals to rescind or amend SP-1 until after the November election, when voters would decide for themselves whether or not to allow race-conscious policies in public education, contracting, and hiring. If the CCRI passed, then any further discussion of SP-1 would be moot.[75]
Connerly, however, was not content to rely on the ballot initiative to eliminate all remaining forms of affirmative action. He announced that he
To Richard Russell, an African American who was a regent by virtue of his elected position as vice president of the Alumni Association of the University of California and who had opposed SP-1 (though at the time of the passage of SP-1, he was only a regent designate and had no vote), this was outrageous. Russell resented the hypocrisy of regents who on the one hand said that race did not matter and on the other hand lobbied for white students in the admissions process. Russell did not buy into the "color-blind" rhetoric. His children had only recently been called "niggers" by neighbors, and he knew from his own experience that race still mattered. In his view the regents were failing to represent the entire student population. How could they when they called blacks and Latinos "unqualified" and stood up for the "rights" of whites and Asians. In what way were they advocates for underrepresented minorities at the university? To Russell, they were clearly not. "For Ward Connerly to hand deliver applications to Chancellor Tien and call the Chancellor if the applications are not acted on favorably, undermines his whole argument of equality of opportunity.[78]
In Russell's mind, the hypocritical actions of the regents compromised the integrity of the whole board, which had assumed the responsibility of deciding how scarce and precious seats at the university should be distributed.[79]
By April 1996, the Boalt faculty was engaged in a reevaluation of the school's admissions policy to bring it into compliance with SP-1 before the next admissions cycle began in the fall. The regents had decided that affirmative action would first be eliminated at all graduate and professional schools, and in the following year would be eliminated at all undergraduate schools. This meant that Boalt would be among the first schools to admit an entering class under a "color-blind" policy and among the first to feel the effects of the regents' decision. The law school faculty still claimed to be committed to diversity, but without being able to consider race, it was unclear how diversity would be achieved. With the exception
Days prior to the adoption of this revised policy, Professor Marjorie Shultz— who had survived a tenure battle tinged with sexual discrimination in the late 1980s— distributed a memo dated April 22, 1996, to the faculty, which challenged the complacency of such minimal action in the face of impending doom: "Our current system of admissions intends to identify the most qualified applicants. But, in my view, it does not. Our policy lacks accuracy, efficacy, and legitimacy with regard to that task. … [W]e are in danger of entrenching those serious shortcomings in our revised policy as well.[82]
She pointed to the heavy reliance on numerical indices of qualification and questioned whether these indicators were accurate and useful for the purpose of identifying promising students. With respect to the LSAT, she noted that the Law School Admission Council—the administrator of the LSAT—emphasized that scores were only approximate and that "use of scores within the same range … to distinguish the ability of students is invalid." "Yet," she continued, "Boalt does just this." Critical of this practice, Shultz wrote, "Numbers have an appealing concreteness. They tempt us to resolve indecision, to save time, and to satisfy our sense of fiduciary obligation by giving them great weight, but it is weight that they simply cannot bear." She pointed to the limitations of numerical indicators, stating that though they reflect success in test taking in particular and school in general, they do not predict "outstanding competency in and contribution to the profession and to society." By using traditional numerical indicators to determine who should be admitted, she added, "We also inescapably choose who will have access to a scarce and coveted public resource and to the status, income, influence, etc. that they often produce.[83]
"What then should we do?" she asked: "Assigning heavy weight to numerical indicators has the advantage of comfort … [c]omfort in the reaffirmation of our own worth. Comfort in relieving us of large amounts of work in an apparently neutral and apparently precise, and therefore satisfactory, fashion. But, our comfort is too costly. Our precision is too chimerical. Our rectitude is misplaced." Shultz rejected the argument that better alternatives to the present system were implausible. She urged the faculty to try to design a better system and to "recognize the disjunction between our means and our ends." "If we need additional incentive, we need only contemplate the untenable prospect of having an overwhelmingly white class selected by a system that is traditional but grossly lacking in justification." In the end, the faculty chose not to consider alternative designs and instead nominally changed the weight accorded to numerical indicators, clearing the way for the full force of SP-1 to take effect for the admitted class of 1997. This decision would prove disastrous for diversity at the law school and would draw strong criticism from all quarters.
In May 1996, Richard Delgado, a University of Colorado law professor who had graduated from Boalt in 1974 and had been invited back to speak at graduation, faced his audience in the Greek Theatre. He told the departing students that his class at Boalt had been the first to experience a fully diversified student body, and he noted with regret the fact that their class was likely to be the last. Delgado explained that in preparation for his commencement speech he had asked administrators at Boalt to tell him where his fellow students of color and female colleagues had wound up. Had they all flunked out, failed to pass the bar, or assimilated quietly into obscure corners of the corporate kingdom, as predicted by the nay-sayers? Not at all, he answered. Every one of them had passed the bar exam and gone on to do quite well. They had started their own companies and their own law firms; served as state court judges and in the
U.S. Congress; acted as legal counsel for large corporations as well as state and federal agencies; headed public interest and civil rights organizations; and taught law students as professors around the country. After listing the successes of each of his classmates, Delgado commented, "[D]etractors of affirmative action warn that we are in danger of sacrificing quality. Well, you certainly could not tell it from that list." Delgado concluded his speech by lauding the rich diversity at Boalt, and inviting the graduating students who had experienced such diversity to join him in supporting affirmative action.[84]
In a commencement address on the other side of the country, at Bowie State College in Maryland, General Colin Powell also spoke up for affirmative
But it would take more than a speech from General Powell to combat the comfortable lead that the CCRI enjoyed. Polls showed that 70 percent of voters supported the initiative. This support, however, did not translate into support to end affirmative action. Tellingly, when voters were asked whether they favored "affirmative action," 50 percent said yes. When a qualifying clause was added, and voters were asked whether they supported "affirmative action programs to ensure equal opportunities for minorities," support rose to 61 percent. These responses indicated that the majority of voters supported affirmative action, particularly when it was employed "to ensure equal opportunity." But these responses also indicated that the majority of voters did not make the connection between the CCRI and the weakening or ending of affirmative action. In fact, only 41 percent of voters understood that "if passed, CCRI will end affirmative action in California.[87]
Custred and Wood, the authors of the CCRI, had been aware of this from the start and for this very reason had not included the words "affirmative action" in the language of the initiative. Now Ward Connerly, as the spokesman for the campaign, was careful not to associate these words with the CCRI. He told the press that the initiative was "an attack on preferences," and not "an attack on affirmative action." Pointing to the language of the initiative, he stated, "You will not find the words affirmative action in it anywhere."[88] This put opponents of the CCRI in the awkward position of explaining that the initiative was in fact an attack on affirmative action. A loose coalition of civil rights organizations formed an opposition campaign to get their message out, but they faced a number of obstacles, not the least of which was the Democratic Party. More than anything else the opposition campaign needed visibility, which President
Without the support of President Clinton and the Democratic Party, CCRI opponents turned to corporations who were sympathetic to their cause, but Governor Wilson preempted them by sending letters to corporate executives warning them not to contribute to the other side. He reminded potential contributors of how much business they did with the state or how heavily regulated they were. One corporate executive told an opposition fund-raiser, "The Governor is a moral pygmy, but he can cost me $250 million."[90] As a result, corporate sponsors were hesitant to step forward, and the opposition campaign was left to rely largely on individual donations. Opposition fund-raising efforts were no match for those of the CCRI, which enjoyed the support of state and national Republican leaders. Governor Wilson and Newt Gingrich, for example, pitched big contributors on the idea that to give to the CCRI campaign was to help all Republican candidates. It worked, and with money in its coffers, the CCRI was able to keep the opponents at bay.
As school began at Berkeley in the fall of 1996, the attention of student activists turned to the impending November election. Though affirmative action had already been eliminated in admissions at the university, the proposed CCRI would go one step further and prohibit race-conscious outreach, recruitment, and scholarships, making it even more difficult for the university to enroll a diverse student body. Beyond the University of California, the CCRI would also prohibit affirmative action at the California State University and all other public institutions of education, as well as prohibit race-conscious programs in the areas of public contracting and hiring. Berkeley student activists joined the opposition campaign, which was now being driven by Californians for Justice (CFJ), a statewide grassroots organization based in Oakland. CFJ
At Berkeley, student activists hoped—though it was a long shot—that if the CCRI failed at the ballot box, the loss would provide valuable momentum to convince the regents to reconsider their decision to eliminate affirmative action at the University of California. Beyond volunteering for CFJ, student activists did what they could where they could. At the law school, Boalt Students for Affirmative Action held educational forums on the CCRI and sponsored debates on the ballot measure. BSAA also formulated its own arguments in support of affirmative action, addressing head-on the arguments used against affirmative action in a one-page summary (table 3), which students distributed on the Berkeley campus.
As the November vote drew near, proponents of the CCRI fashioned themselves as civil rights advocates and billed their initiative as a return to the ideals of the civil rights movement. In the ballot pamphlet distributed to voters, they drew direct analogies to the Civil Rights Act of 1964, stating, "A generation ago, we did it right. We passed civil rights laws to prohibit discrimination. But special interests hijacked the Civil Rights Movement. Instead of equality, governments imposed quotas, preferences, and set-asides." Using the terms "quotas, preferences, and set-asides" to describe affirmative action programs, CCRI proponents characterized such programs as unfair. Without distinguishing between state-sanctioned, race-exclusive programs of the past and state-sanctioned, race-inclusive programs of the present, proponents characterized all such programs as discriminatory.
They turned a blind eye to history, ignoring the tenets of the civil rights movement of equality not only in the law but also as a result. Even
| Arguments Opposing Race-Conscious Admissions Policies | Responses Supporting Race-Conscious Admissions Policies |
| SOURCE: Boalt Students for Affirmative Action, 1996. | |
| They undermine the notion of merit. | "Merit" is what someone says it is. The problem with merit now is that it is defined by dominant social groups. Its use excludes non-dominant groups. The "merit" system used in law school admissions does not capture a student's potential for success, either in law school, on the bar exam, or in the legal profession. |
| They give unfair preferences based on skin color. | We, too, disfavor unjustifiable and arbitrary preferences. The preferences now in place (both subtle and overt) give preferences to Whites. Preferences, which accu mulate over time rather than being limited to one particular act, also flow to those with privileged economic backgrounds. Recognizing racial background is not a "preference," it is an acknowledgement of social reality. It is an acknowledgement that people's experiences and identities are still shaped by their own—and others'—perceptions of race. |
| They stigmatize members of racialized minority groups portraying them as in need of assistance. | The "social stigma" argument presents a no-win situation. Here's the choice: Whites can stigmatize non-whites for being in institutions of higher education where affirmative action is in place, or can stigmatize them for being absent from those institutions. The problem again is the insistence on seeing affirmative action as "assistance for the needy" rather than as adjustment for accumulated social inequality. |
| They promote racism by fostering resentment among White Americans. | Racialized animosity and misunderstanding is only fostered by segregation. Unless different groups of people interact with one another as peers and equals, they cannot gain insight into each other's experiences and views. Also, we need to ask why we are measuring the value of a social policy by the perceptions of one social group. Since when is a "public good" something that simply makes Whites happy? |
| Affirmative action hasn't achieved its goals. | These policies have served intended goals: Affirmative action has dramatically increased the number of women and minorities who have made their way into higher education and employment. Affirmative action was not intended to undo racism directly, but to undo racism's most pernicious effect: segregation. |
The final days of the campaign became a war of messages, proponents of the CCRI asserting that the initiative was synonymous with the Civil Rights Act of 1964, and opponents arguing that the initiative ran counter to the act and to the very goals of the civil rights movement. With the help of Governor Wilson and the Republican Party, the CCRI campaign raised a substantial amount of money, enabling the proponents to distribute their message widely and drown out the message of their opponents. On Halloween, President Clinton spoke at a rally in Jack London Square in downtown Oakland. His victory in California was already assured. Standing in front of a mostly black crowd in which a lot of CFJ posters were visible, Clinton broke his silence and stated publicly, for the first time, his opposition to the CCRI.[93] But his support was too little too late. On November 4, Californians went to the polls, and 54.6 percent of the electorate voted for the CCRI. Identified on the ballot as Proposition 209, the initiative read, "The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."
As the polls closed that day, proponents of the initiative gathered in a large ballroom at the Hyatt Regency in Sacramento to celebrate. In a room full of white men in suits, Ward Connerly claimed victory.[94] He stated, "Many people who went to the polls were voting not just to end preferences, but voting to end this obsessive concern about race.[95] Tellingly, white males, who had made up a majority of those voting at the polls, overwhelmingly approved the initiative.[96] In communities of color, however, Proposition 209 was soundly rejected: 76 percent of Latinos opposed Proposition 209, as did 74 percent of African Americans and
Twelve hours after the polls closed, the American Civil Liberties Union (ACLU), in conjunction with other civil rights organizations, filed a lawsuit in federal court in San Francisco and, pending trial, asked for an immediate order blocking Proposition 209. The ACLU asserted that the prohibition on governmental entities' taking voluntary action to remedy discrimination through the use of constitutionally permissible affirmative action programs was unconstitutional. In late December, Judge Thelton Henderson, chief U.S. District Court judge for the Northern District of California, granted the injunction, finding that the plaintiffs were likely to prevail in their case at trial. Judge Henderson (class of 1962) was one of the few African Americans who had graduated from Boalt prior to the implementation of affirmative action. He graduated at a time when there had never been an African American federal judge, and young African American law school graduates like himself could not realistically hope to be interviewed by a large law firm, let alone aspire to become federal judges. He knew how far the country had come and how far it had yet to go, and he knew what was at stake in the 209 case. In his written opinion, he stated, "It is not for this or any other court to lightly upset the expectations of the voters. At the same time, our system of democracy teaches that the will of the people, important as it is, does not reign absolute but must be kept in harmony with our Constitution.[100]
Proponents of 209 appealed the ruling and awaited a decision that would issue in April 1997. In the interim, riding the momentum of his November victory, Ward Connerly created the American Civil Rights Institute, a national organization based in Sacramento which was formed to target and dismantle affirmative action programs around the country.[101] In January 1997, on Martin Luther King Jr.'s birthday, Connerly once again invoked the image of the civil rights leader and formally launched a national campaign against affirmative action, infuriating civil rights activists. Connerly stated, "We do no disrespect to [King] by acknowledging what he wanted this nation to become, and we're
In California, Connerly attempted to take the dismantling of affirmative action at the University of California one step further. In March, he asserted that SP-1 did not go far enough and pushed for a name-blind policy so administrators would not be swayed by ethnic-sounding surnames.[103] Admissions officers, he contended, might not be able to avoid the temptation to give preference to students on the basis of race, ethnicity, or gender as long as names were available to provide clues. University administrators called Connerly's proposal "overkill." One administrator stated, "It's unrealistic to expect applications to be completely free of any reference to race or gender, particularly because applicants are required to write essays about themselves." The UCLA admissions director responded quizzically, "We tell students to write a personal statement about who they are as human beings, but we're going to take their names off so they're just a number?" Regent Richard Russell exclaimed angrily, "What's the point? Why don't we just ban blacks and Latinos." Despite Connerly's enthusiasm for the proposal, it lost steam due mostly to its impracticability.
By the beginning of March 1997, the admissions process was in full swing at Boalt. As one of the first schools to implement a "race-blind" admissions policy, the law school was already having problems with the policy. In the application to law school, Boalt had invited students to include in their personal statements instances of obstacles that they had overcome. During an Admissions Committee meeting, a student member of the committee inquired whether an applicant's individual experience of racial discrimination, as described in the applicant's personal statement, could be considered as a "plus" factor in making a decision on that file. A faculty member responded that such experience could not be considered without substantiation beyond the personal statement. Such consideration, he said, would come too close to considering "race as a criterion" and would violate SP-1. Furthermore, the San Francisco Chronicle
In addition, some faculty members of the Admissions Committee were giving greater weight to more traditional undergraduate majors that tended to favor white applicants and disfavor minority applicants. In one instance, a faculty member described an applicant who had majored in classics as the ideal applicant to Boalt. In contrast, he described an applicant who had majored in African American studies as a less ideal applicant, asserting that such a major was less rigorous and would not have prepared the student as well for the successful completion of law school.[105] This attitude and the likely results of a race-blind admissions process at the University of California, and at Boalt in particular, prompted the Mexican American Legal Defense and Educational Fund (MALDEF)—with the help of their new attorney, Joe Jaramillo, who had graduated from Boalt two years earlier—and other civil rights organizations to file a complaint with the Office for Civil Rights at the U.S. Department of Education. The complaint alleged that the admissions criteria used by the University of California, following its implementation of resolution SP-1, had resulted in the discriminatory treatment of minority applicants to graduate programs. The complaint stated, "As implemented, resolution SP-1 has operated to eliminate consideration of admission factors that have acted to ameliorate the discriminatory impact of graduate admissions against minorities [and women]. UC's concomitant failure to mitigate in any fashion the effect of the remaining criteria that have an adverse disparate impact on minority and women applicants has resulted in a pronounced discriminatory impact on such applicants.[106]
In the complaint, MALDEF asked the Office for Civil Rights to "undertake an immediate investigation and take appropriate action to enjoin, prevent, and sanction the [university]" from further discriminating against minority and women applicants. The complaint singled out Boalt in its accusation of discriminatory admissions practices, highlighting the fact that officials at Boalt had projected the decline in enrollment of underrepresented minorities from a consistent enrollment of approximately 25 percent (60–70 students) over the past several years to an estimated 4 percent (8–12 students) as a result of SP-1. These projections, MALDEF charged, "[demonstrate] how UC graduate program admission criteria,
The complaint pointed to three factors contributing to the cumulative discriminatory effect. The first of these was the improper weighting of standardized test scores. Recognizing the potential for cultural bias and the limited predictive validity of these tests, MALDEF noted that the producers of these tests themselves cautioned against relying too heavily on the scores:
[T]he Educational Testing Service, which designs many of the tests utilized in evaluating applicants to UC graduate programs, cautions that, with respect to minority students, "[s]pecial care is required in interpreting the scores of students who may have an educational and cultural experience somewhat different from that of the traditional majority."
ffiet, UC admission officials may no longer take special care in interpreting these scores because resolution SP-1 deprives them of their ability to consider an applicant's racial [or] ethnic … background. The practice of according increasing weight on standardized test scores without considering any criteria which would ameliorate the discriminatory effect of such scores results in a disparate impact on qualified minority and female applicants.[108]
The second factor contributing to a discriminatory effect was the adjustment of undergraduate grade point averages. At schools such as Boalt, an applicant's UGPA was adjusted based on the LSAT percentile for all test-takers from the applicant's university with the applicant's UGPA and on the grading patterns at the university. The effect of this practice was to adjust downward UGPAs from universities with high minority enrollment. Because minority students tended to score lower on the LSAT, the LSAT percentile for test-takers from a university with high minority enrollment tended to be lower, and consequently, the earned UGPAs of students from that university were adjusted downward. Thus, an earned UGPA of 3.4 was adjusted upward to a 3.6 for students attending Harvard and adjusted downward to a 3.2 for students attending Howard.[109]
The third factor contributing to a discriminatory effect was the consideration of "whole person" characteristics that carved out of consideration any experiences that might have arisen from an applicant's race or ethnicity. "Such a system," stated the complaint, "excludes many of the most challenging or enriching life experiences of … minority applicants, and, at the same time, continues to grant full weight to the life experiences of other applicants." This disparate impact, the complaint continued, is exacerbated by the fact that many of the remaining "whole person"
Finding enough evidence to warrant an examination of admissions practices at the University of California, and at the law schools in particular, the Office for Civil Rights (OCR) decided to open an investigation into the admissions practices at the Boalt, UC Davis, and UCLA law schools. If the OCR found the admissions practices at Boalt or any other law school in violation of federal antidiscrimination laws, then the federal government could withhold $1 billion in federal funds from the University of California. Such a move, however, would take enormous political will, which Democratic leaders from the president on down had not exhibited on the issue of affirmative action. Nevertheless, the investigation would be valuable in learning more about the admissions practices at Boalt and other graduate schools. In addition, the investigation focused media attention on Boalt and brought greater scrutiny to bear on admissions practices that were charged to be not only unjust as a matter of public policy, but also illegal as a matter of law.[111]
In early April, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit overturned Judge Henderson's preliminary injunction in the 209 case. Prior to the appellate court ruling, Governor Wilson, Republican lawmakers, and conservative talk-show hosts had vilified Judge Henderson—the only African American ever to hold his post—and condemned his opinion, an opinion which Henderson defended as a "sound bit of legal reasoning" firmly anchored in case law. For months after his decision, Henderson had come out of his chambers to find FBI agents wearing white gloves, carefully handling plastic bags with envelopes inside that contained death threats. In addition, conservatives in Washington had called for his impeachment, and demonstrators had marched outside the federal courthouse in San Francisco where Henderson worked.[112] The three appellate court judges who reviewed Henderson's decision were all Republican appointees and were considered among the most conservative judges on the Ninth Circuit. In overturning Henderson's opinion, the judges wrote, "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy."[113] The opponents of 209 appealed to the entire Ninth Circuit and waited to hear whether it would review the case en banc.
In May, one month after the appellate court ruling, nine students at Boalt held a press conference, releasing a report that they had prepared entitled "New Directions in Diversity." Expecting the worst from the admissions process and frustrated that Boalt had done little to mitigate the
[G]iven the imprecise nature of these indicators, their inability to capture an applicant's full range of qualifications and aptitude, and their potential class, race, and gender bias, we find Boalt's reliance on them to be improper and unjustiW able. By looking primarily to these numerical factors to make its admissions decisions, Boalt does little more than reinforce embedded preferences and existing disparities in the access to resources and information.[114]
The authors made four recommendations to mitigate the inequities in Boalt's current admissions policies. First, they called for greater con sideration of non-numerical indices that describe an applicant's ability to succeed in law school. Second, they recommended incorporating alumni interviews to identify attributes such as speaking skills and other interpersonal skills that an exam score or an essay cannot capture. Third, they called for greater outreach to underrepresented communities, where students face particular disadvantages in getting to law school. Finally, they recommended considering race in the admissions decision, not as a criterion in itself, but rather as a measure of experiential diversity, acknowledging the experiences of applicants that may relate to their race.
The report was well received by civil rights leaders, campus professors, and some state and federal legislators, who also urged Boalt to do more. Supporting a reevaluation of the traditional criteria used to determine admissions, U.S. Congressman Ronald Dellums commented, "Those of us who reject the assault on affirmative action do so because we believe such programs remain required to root out the continued inequality that is perpetuated by privilege and discrimination. While more subtle perhaps than in previous eras, such forces continue to skew and thereby discredit, the very criteria upon which some opponents of affirmative action would solely base admissions decisions.[115]
Several days later, Dean Kay announced the outcome of the law school's "race-blind" admissions process. The results were stunning. From the previous year, the number of African Americans admitted to Boalt had dropped 81 percent (from 75 to 14), the number of Native Americans 78 percent (from 9 to 2), and the number of Latinos 50 percent (from 78 to 39).[116] In total, the number of underrepresented minorities admitted to the law school had dropped 66 percent (from 162 to 55), unraveling much of the progress made over the previous thirty years in increasing racial diversity in the student body at Boalt.[117] The other law schools at the University of California had not fared well either. At UCLA, the number of African Americans admitted to the law school had dropped 80 percent, the number of Native Americans 60 percent, and the number of Latinos 32 percent. At Davis, the number of African Americans had dropped 26 percent and the number of Latinos 28 percent. Unexpectedly, the number of Asian Americans (who generally are not considered "underrepresented") had also declined at Davis, dropping 21 percent. Though the number of underrepresented minorities had fallen at all of the law schools, they had fallen most drastically at Boalt. These were just the admission numbers; the numbers of those who enrolled were likely to be less.[118]
Dean Kay stated to the press that while the school had expected underrepresented minority admissions to plummet following the ban on affirmative action, officials were still stunned by the severity of the drop. "It is quite shocking," Kay said.[119] She added, "This dramatic decline is precisely what we feared would result from the elimination of affirmative action at Boalt. When I testified before the Board of Regents in May of 1995, I opposed the proposed resolution banning affirmative action in admissions and explained that such a resolution would make an enormous difference in the composition of our student body." Kay stated, "The students and faculty at Boalt have obtained great educational benefit from the racial diversity of our student body. Moreover, our minority graduates have made significant contributions to the legal profession." The dean concluded, "I deeply regret that Boalt's offers of admission to minority applicants have dropped so sharply. We must do everything we can to encourage those students of color who are admitted to Boalt Hall to accept our offers of admission."
While the dean and other administrators lamented the decline in the numbers of underrepresented minorities admitted to law school, Ward Connerly welcomed the drop as the public unmasking of an "artificially engineered system of preferences that has been propping up the university." He stated, "For so long, we've operated out of a sense of political
Leslie Brown was one of the African American students who had applied to Boalt but was denied admission. Contrary to Ward Connerly's perception of who was being kept out of the University of California, Leslie had not played basketball, she had never ridiculed blacks for studying too hard, and she had never called them nerds. In fact, she had always done well in school and graduated from Brown University with a computer science degree. She had earned a B average and scored in the 93rd percentile on the LSAT. In addition, she had worked as a software consultant for almost ten years before applying to law school. She was accepted to three other California law schools—Hastings, Davis, and Santa Clara—but chose to go to Colorado, where she won a full scholarship. In the coming year, she would do well in law school and would apply to Boalt again as a transfer student, to be closer to her ailing father.[122] She would be admitted to the school that had once denied her, and would excel at Boalt, dispelling the myth promulgated by Ward Connerly that black students "are not as competitive to be lawyers.[123]
In June, Dean Kay announced that not one of the fourteen black students admitted to Boalt had decided to enroll. This turn of events prompted the dean to call the numbers "a total wipeout." Richard Russell, one of three blacks on the twenty-six-member Board of Regents, put it another way: "It's obvious that the re-segregation of higher education has begun." Kay commented that if she were a black student weighing whether to attend Boalt, "I would certainly be very concerned about my ability to flourish here." "We've already had some Caucasian students withdraw from our waiting list because they prefer to go to a school with a more diverse student body," said Kay, who added that she feared the education of the students who enrolled in the fall would suffer. "Their training will be deficient in that they will no longer have the ability to engage in debate and dialogues with members of disadvantaged groups who were here formerly," she said.[124]
In the newspaper, prominent black attorneys voiced their concern. Ray Marshall, one of the few black partners in San Francisco's major law firms, who would soon become president (1998–99) of the California Bar Association, viewed the drastic decline in minority admissions as a major setback to integrating the nation's overwhelmingly white legal profession. "I've been there, done that, I know what the history's been," said Marshall. To Marshall and others, the need for diversity went beyond employment goals to the practice of law itself. "The law, in large part, is how different people see the same set of facts," remarked Krystal Denley, an associate at McCutcheon Doyle, the law firm at which Marshall was a partner. "It hurts the profession as it hurts society if many viewpoints are not expressed."[125] Judge Thelton Henderson, one of two African Americans in the Boalt class of 1962, expressed his belief that the drop in minority enrollment would hurt not only the classroom but also the courts: "Justice requires representation and views that reflect all of society. You don't get that with one kind of lawyer or with one kind of judge with one background. … We will all be shortchanged.[126]
Robert Harris, a vice president of PG&E, who was educated in a segregated, two-room school and picked cotton in Arkadelphia, Arkansas, as a child, shared these same sentiments. Harris (class of 1972) had enrolled at Boalt twenty-eight years earlier with nine other black students. He commented, "More than a quarter of a century later, to have only one person of African-American descent in the class clearly shows something is fundamentally wrong." The African American to whom he referred had deferred enrollment from the previous year. Harris urged Dean Kay, who had once taught him family law, to do more. "I would like to believe that my former professors at Boalt are astute enough to devise some means to ensure diversity is a reality at that school," he said. "That's what they teach us at law school." Dean Kay replied that she was "happy to work with anyone who has good ideas for us." But she also said that, without lifting the ban on the use of race, "it's not clear to me what that would produce. The problem is our inability to make offers of admission to students under an affirmative action program.[127]
In early July, National Public Radio aired a segment on All Things Considered about the decline in minority enrollment at Boalt Hall.[128] Dean Kay stated that Boalt had done everything it could to attract the minority students who had been offered admission. But a Latino student, Michael Miramontes, who had been admitted to Boalt and had chosen to go to Harvard, held a different view. Miramontes said he declined Boalt because it expressed so little interest after accepting him. "Three different
At the close of the summer, the dean reported that Boalt would enroll one black student, who had been admitted the previous year but had deferred enrollment for one year. In the Washington Post, Henry Ramsey Jr., a retired judge and former dean of Howard Law School who had been one of the first African Americans to graduate from Boalt (class of 1963) and the second ever to become a professor at the law school, wrote an opinion in which he posed the question, "Are we returning to the early 1960s?"[129] Ramsey had entered Boalt Hall in 1960, as the only black student in his class. He criticized the regents for adopting a "mean-spirited and fatally flawed policy … that has caused the dramatic and drastic reduction in legal educational opportunities for California's minority students." Rejecting the use of test scores and grade point averages as surrogates for merit, he stated, "[W]e should not accept admissions policies that, however unintended, deny black Americans and other people of color the educational opportunities that are absolutely essential for positions of leadership in American society."
As the first day of classes drew near and the realization sank in that Boalt would enroll only one African American, Ward Connerly accused the dean of intentionally trying to keep admitted minorities from enrolling in order to pressure the regents to overturn their ban on affirmative action. "I don't have any proof of it, but I believe [it] deep in my soul," he said. "Kay should have been more assertive in trying to persuade the 14 to come.[130]
"It's odd that Ward Connerly has accused her of sabotaging the process," said Marvin Peguese (class of 1998), one of the students who wrote the "New Directions in Diversity" report. "We feel the Dean's been overly cautious in enforcing SP-1. Her heart is in the right place. But the political and legal fallout has made her timid." "It hasn't been easy," Dean Kay conceded. "To have to preside over the dismantling of policies that have a great deal of benefit is personally quite painful.[131]