Prop 16 bans racial quotas but promotes diversity: Here’s why

Last week we learned that California Proposition 16 is behind in the polls, with 47% of likely voters inclined to vote no on the California constitutional amendment to permit affirmative action by the state of California. Why? One common fear is that under affirmative action the University of California would be permitted to use racial quotas in admitting students. The fear is utterly misguided. To the contrary, Prop. 16 bans racial quotas but promotes diversity; here's why.

The law of affirmative action in university admissions is grounded in legal arguments that were made in the 1960s and 70s, which led to the five Supreme Court decisions that continue to govern the issue today. In the 60s and 70s, the proponents of affirmative action did support quotas, arguing that they were permitted under our civil rights laws because they were necessary to promote racial equality. The opponents argued that our civil rights laws are "color-blind" and government should never use race in making decisions.

In the Bakke case, decided in 1978, four of the nine justices concluded that race should never be a consideration in deciding which applicants to admit. Four other justices concluded that the need to promote racial equality justified using race -- including racial quotas -- to create space for minority students. Regents of the University of California v. Bakke, 438 U.S. 265.

One justice reached a conclusion that none of the others fully agreed with, yet it became the law of the case, and eventually the law of the land. That was Justice Lewis Powell, a moderate/conservative Republican appointed to the court by Richard Nixon, who is widely credited as the inspiration for the Federalist Society. Justice Powell agreed with the four more conservative justices that our civil rights laws provide that racial quotas are forbidden. Thus, there were five votes (a majority) for the position that racial quotas in university admissions are prohibited.

But Justice Powell disagreed with the four more conservative justices on whether race could ever be used. He concluded that a university could consider an applicant's race as one of a number of factors as part of an effort to admit a diverse group of students. Justice Powell wrote that just as a university might consider artistic talent, athletic skills, regional diversity, or relationship to alumni, it might also properly consider racial or ethnic diversity in making admissions decisions.

As Powell wrote, favorably quoting a description of Harvard's admission plan, "When the Committee on Admissions reviews the large middle group of applicants who are 'admissible' and deemed capable of doing good work in their course, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer."

The four more liberal justices agreed with Justice Powell that racial diversity was a proper justification for affirmative action. Thus, while their support for quotas to promote racial equality failed, so did the position of the four conservatives that race should never be used in admissions decisions.

In sum, there were five votes against quotas and five votes in favor of diversity. This remains the law today, and would not (could not) be changed by Prop. 16.

Justice Powell's principle, now described as the diversity justification for affirmative action, has been reaffirmed by the Supreme Court each time it has reached the court, in the two University of Michigan cases in 2003 (Gratz v. Bollinger, 539 U.S. 244, and Grutter v. Bollinger, 539 U.S. 306) and the University of Texas case decided in 2013 and again in 2016 (Fisher v. University of Texas, 570 U.S. 297, and 136 S. Ct. 2198, respectively). It is the principle used by most selective colleges and universities in the United States, but not in California, where it was limited by Proposition 209, which prohibits public universities from using of racial/ethnic preferences even as one of many factors in admissions decisions.

California Proposition 16 will restore California law to the same status provided by federal law as interpreted by the U.S. Supreme Court. Thus, quotas will continue to be prohibited, but race/ethnicity will be a legitimate consideration (along with other factors) when universities seek to admit a diverse student body. 