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Misshaping the River: Proposition 209 and Lessons for the Fisher Case


William C. Kidder


University of California, Riverside

February 21, 2013

39 Journal of College and University Law 53 (2013)

Abstract:     
This article advances the following findings and conclusions:
Lesson #1 – At the University of California, which is subject to an affirmative action ban, recent survey data from eight campuses confirms that the campus racial climate is significantly more inhospitable for African Americans and Latinos than at UT Austin and two other peer universities. In particular, these survey data from 9,750 African American and Latino students confirm that having an affirmative action ban and low diversity is associated with African Americans and Latinos perceiving that students of their race or ethnicity are less respected on campus compared to those on campuses with affirmative action and/or higher levels of diversity. Although establishing a correlation is not the same as proving causation, these data are consistent with the conclusion that affirmative action bans and lower diversity (at least in combination) lead African American and Latino students to feel that they are less respected by their peers. Moreover, on the question of “critical mass” versus racial isolation that was discussed at length during the U.S. Supreme Court’s oral argument in the Fisher case – and that was one key consideration taken into account by UT Austin in devising its admissions program – the comparative data in this article suggest that the threat of educational harm associated with racial isolation is very real (particularly for African Americans) and should not be minimized or overlooked.

Lesson #2 – Contrary to recent claims by groups opposing affirmative action, Proposition 209 (“Prop 209”) triggered a series of educationally harmful “chilling effects.” Data on UC’s freshman admit pools spanning a dozen years show that underrepresented minorities (more so for those with the strongest credentials, and especially for African Americans) are more likely to spurn an offer from UC than they were before Prop 209, and the difference compared to whites/Asian Americans has gradually widened under Prop 209. In combination with the survey data above, these findings about students’ enrollment choices again cast doubt on claims by affirmative action critics that Prop 209 benefited underrepresented minorities by lessening racial stigma. Declines in law school applications and undergraduate enrollments are also reviewed and contextualized.

Lesson #3 – Affirmative action critics supporting Petitioner are propagating two related myths about credentials and performance. First, they scapegoat affirmative action as the overwhelming cause of racial/ethnic differences in SAT scores at UT Austin and elsewhere, when this relationship is quite modest for reasons stemming from the mathematics of admissions. Secondly, the critics stubbornly insist that affirmative action causes substantial “mismatch” effects on underrepresented minority student performance when in fact there is a voluminous social science literature indicating that affirmative action at highly selective institutions has a net positive effect on graduation rates and other important outcomes. Law school mismatch claims are also reviewed.

Lesson #4 – While some argue in favor of class-based affirmative action in lieu of race-conscious programs, UC’s atypically large enrollment of low-income undergraduates is strong “natural experiment” evidence verifying that class-based policies are not effective substitutes for race-conscious policies

Lesson # 5 – The experience of: UC Business Schools and UC Law Schools after Proposition 209 provide compelling case studies regarding the need for race-conscious affirmative action

Number of Pages in PDF File: 74

Keywords: affirmative action, mismatch, stigma, University of California, Fisher, University of Texas at Austin, freshmen admissions, MBA admissions, law school admissions, Proposition 209, Hopwood, test score gap, yield rate, racial climate, racial isolation, African American, Latino, American Indian, Asian

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Date posted: August 4, 2012 ; Last revised: March 1, 2013

Suggested Citation

Kidder, William C., Misshaping the River: Proposition 209 and Lessons for the Fisher Case (February 21, 2013). 39 Journal of College and University Law 53 (2013). Available at SSRN: http://ssrn.com/abstract=2123653 or http://dx.doi.org/10.2139/ssrn.2123653

Contact Information

William C. Kidder (Contact Author)
University of California, Riverside ( email )
900 University Avenue
Riverside, CA 92521
United States
951 827-1128 (Phone)
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