The Defeat of Proposition 16 in California and Mr. Dooley: Should the Supreme Court Take Note of “Th’ Iliction Returns” the Next Time It Addresses Race-Preferential Admissions Policies?

22 Fed. Soc. Rev. 72 (2021)

San Diego Legal Studies Paper No. 21-012

17 Pages Posted: 29 Mar 2021 Last revised: 22 Apr 2021

See all articles by Gail L. Heriot

Gail L. Heriot

University of San Diego School of Law

Alexander M. Heideman

Independent

Date Written: 2021

Abstract

This article makes the following points:

I. Some commentators have argued that in deciding Grutter v. Bollinger (2003), the Supreme Court (and Justice O’Connor in particular) was influenced by the “broad societal consensus” in favor of race-preferential admissions policies, there was no such consensus in 2003. Indeed, the consensus of opinion went—and remains—in the opposite direction. Thus, if Justice O’Connor was so influenced, she was mistaken.

II. Even if there had been such a “broad societal consensus,” it should not have excused the Court from its obligation to strictly scrutinize the University of Michigan’s racially discriminatory admissions policy. Unfortunately, by purporting to “defer” to the university’s judgment on whether the need for racial diversity in education is “compelling,” Justice O’Connor essentially admitted that the Court was not scrutinizing the policy with the level of care that had become customary in racial discrimination cases up to that point.

III. With the overwhelming rejection of California’s Proposition 16 in the November 2020 elections, it has become all the more clear that a societal consensus really does exist on race-preferential admissions policies, but it’s a broad agreement against such policies, not a broad agreement in favor. Certainly, therefore, if Justice O’Connor based her opinion in part on the belief that Americans were somehow favorably disposed toward race-preferential admissions (at least for the short term), that reasoning can be safely dismissed now. With Students for Fair Admissions v. Harvard University likely to come before the Court in the near future, the lesson of Proposition 16’s defeat should be (and likely will be) drawn to the Court’s attention.

IV. Unlike a broad agreement in favor of race discrimination, a broad agreement againstrace discrimination is something courts arguably should take into account. How can a governmental interest be compelling (as it is required to be under the applicable legal standard of strict scrutiny) if most Americans don’t find it even persuasive?

Keywords: Affirmative action, Grutter v. Bollinger, race-preferential admissions, Proposition 209, Proposition 16, strict scrutiny, Students for Fair Admissions.

JEL Classification: i24,k10,k41

Suggested Citation

Heriot, Gail L. and Heideman, Alexander M., The Defeat of Proposition 16 in California and Mr. Dooley: Should the Supreme Court Take Note of “Th’ Iliction Returns” the Next Time It Addresses Race-Preferential Admissions Policies? (2021). 22 Fed. Soc. Rev. 72 (2021), San Diego Legal Studies Paper No. 21-012, Available at SSRN: https://ssrn.com/abstract=3813504

Gail L. Heriot (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

Alexander M. Heideman

Independent ( email )

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