Prop 16: California’s Referendum On Affirmative Action 

Friday, October 23, 2020 | 12:50 – 2:00 pm
Zoom | Berkeley Law

Co-sponsored by The Citrin Center for Public Opinion Research

Event Video

*Scroll to the bottom of the page for transcription*

Event Description

Proposition 16 is a proposed amendment to the California Constitution that will appear on the November ballot asking voters to repeal Proposition 209 passed in 1996. If passed, Prop 16 would allow “diversity” to be a factor in public employment, education, and contracting. 

Professor and former Berkeley Law dean, Christopher Edley, MALDEF General Counsel Thomas Saenz, University of San Diego law professor Gail Heriot and UCLA law professor Richard Sander will discuss the legal and policy arguments for and against Proposition 16.


Christopher Edley, Jr. was dean of the U.C. Berkeley School of Law from 2004 to 2013, after 23 years as a Harvard Law professor. His academic work is in administrative law, civil rights, education policy, and domestic public policy generally. Professor Edley has moved between academia and public service, each enriching the other and together giving him broad familiarity with many areas of public policy. He served in White House policy and budget positions under Presidents Jimmy Carter and Bill Clinton.

Thomas A. Saenz serves as General Counsel of the Mexican American Legal Defense and Educational Fund (MALDEF). Prior, as Counsel to Los Angeles Mayor Antonio Villaraigosa, Saenz honed his leadership skills by serving on the four-person executive team to the mayor, where his legal and policy advice proved invaluable. During his four-year tenure with the City of Los Angeles, Saenz helped to lead the legislative effort to change the governance of Los Angeles Unified School District (LAUSD), the effect of which has been to take the City a step closer to securing a quality education for all students in Los Angeles. Saenz also served as the lead liaison on labor negotiations, with a personal goal of addressing serious financial challenges in partnership with the city’s workers.

Gail Heriot is currently a member of the United States Commission on Civil Rights. She was an editor of the University of Chicago Law Review. She is also a member of Phi Beta Kappa and Order of the Coif. She sits on the board of directors of the National Association of Scholars and the California Association of Scholars. 

Richard Sander is a law professor at UCLA. He teaches courses in property, quantitative methods, urban housing, and policy analysis. In 2004, Sander published a comprehensive study of affirmative action in American law schools, focusing particularly on the ways in which large preferences imposed unexpected but substantial costs on their intended beneficiaries.

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Event Transcript
Steven Hayward: Today is a special webinar of the Public Law and Policy Program here at Berkeley. I’m Steven Hayward. I’m a resident scholar at the Institute of Governmental Studies and visiting lecturer at Berkeley Law and I’ll be the moderator for this event. Our topic today is Proposition 16 which, if approved by California’s voters, will repeal Proposition 209 passed almost twenty-five years ago now that forbids state agencies and universities from taking race into account in contracting or admissions. Needless to say, this initiative has been in the works for a while but it arrives before voters at a particularly heightened moment of the national debate on race as everyone knows. So we have a distinguished panel of four experts from each side of the issue to walk us through this today. Each has an extensive biography and background and I’m going to limit myself to the most succinct introductions so we can maximize time for their discussion. I encourage everyone who is interested to look up each of them in the usual way on the internet – that’s what the internet is for – and I’m going to introduce all four siri autumn right now and then get out of the way. Speaking first will be Thomas Saenz, the president and general counsel of Maldef – the Mexican-American legal defense and education fund. He brings extensive experience in civil rights litigation, including before the United States Supreme Court. Our second speaker will be Professor Gail Heriot who teaches civil rights among other legal subjects at the University of San Diego Law School. She’s a member of the U.S. Commission on civil rights and co-chair of the No On 16 campaign this year. Our third speaker will be Professor Christopher Edley who was the Dean of Berkeley Law for nearly a decade, coming after more than twenty years at Harvard Law, and he’s also served in many senior posts in Washington DC over the years, and he’s widely acknowledged as one of the preeminent legal scholars in both education and civil rights policy. And finally rounding out the field is Professor Richard Sander. Rick Sander – as his friends call him – who teaches at UCLA Law School where he specializes in aspects of discrimination, especially in housing markets. He’s also spearheaded a wide-ranging empirical analysis of race-based college admissions practices. Each panelist will have about seven minutes for an opening statement, which I’ll try and police at least as well as Chris Wallace, then we’ll have some open discussion among the panelists for about ten, twelve minutes or so. If viewers want to have a question, I encourage you to use the Q&A button at the ribbon at the bottom – if you move your cursor down on the Zoom screen, you’ll see a Q&A tab that’ll pop up a window. Type in your questions and I will get to those questions in due course. And with that, Thomas Signs please launch us off.
Thomas Saenz: Thank you, Steve, and welcome everyone. I am Thomas Saenz, president general counsel of Maldif as you have heard. I also have the great honor of co-chairing the Yes On 16 campaign. As you have heard or probably read somewhere in your newspaper or in the ballot pamphlet already, Proposition 16 would repeal proposition 209 which was enacted by fifty-five percent of California voters in 1996. I think it’s important to begin by noting that the measure, when it was enacted in 1996, was a divisive measure. Indeed, in the end, the vote on proposition 209 was divided racially. In fact, super majorities of all voters of color voted against proposition 209. Indeed The LA Times exit poll tells us that seventy-six percent of Latino voters in ’96 voted no, seventy-four percent of African American voters in ’96 voted no, and sixty-one percent of Asian American voters in ’96 voted no. But because of the composition of the electorate in November 1996, despite those super majorities against, Proposition 209 did pass by fifty-five percent of the vote. What proposition 209 did is to add a provision to the California Constitution and Proposition 16 would repeal the entirety of that provision. That’s important to note because there are portions of that provision that may be confusing. Proposition 209 was written to prohibit both discrimination and preferential treatment. It is important to note that the prohibition on discrimination was redundant and unnecessary because both the US and California Constitutions have prohibited discrimination on the basis of race ethnicity or gender in public policy for many decades at that point from the from the civil rights era. So that provision was unnecessary – the operative provision was the prohibition on preferential treatment – now those words may not be self-defining for many of us so it’s important to note that that prohibition on preferential treatment has been interpreted by California courts to bar all race or gender conscious affirmative action in public education, public employment, or public contracting. I emphasize all three of those. Often debates around affirmative action tend to focus on higher education admissions, but the prohibition in 209, and what would be repealed by Proposition 16, actually applies to all public education – that includes not just higher education admissions, but graduate schools, it includes also kindergarten through twelfth grade. So it has affected a policy debate in all matters of education – public education – in the state of California. Public employment means, of course, that this affects not only higher education admissions but who is hired or promoted in all aspects of a public employment, including higher education administration and professoria. Finally public contracting may be the biggest impact of Proposition 16, but one that doesn’t often get as much attention as higher education admissions. Proposition 209, as I mentioned, has been interpreted by the courts as prohibiting all race and gender conscious affirmative action. That therefore means that policymakers, unless they find an exception, for federal law policy makers in the state of California have for nearly a quarter century been completely prevented from considering implementation of any form of race or gender conscious affirmative action. What Proposition 16 would do is to permit policy makers at local and state level, in public education public, employment, and public contracting to consider the implementation of race or gender conscious affirmative action. To be clear, Prop 16 is not a mandate for anyone to implement affirmative action. It’s not even a mandate for policy makers to consider affirmative action, but it is highly likely that policymakers from state and local level would consider implementing affirmative action once Prop 16 is enacted. The reason is, of course, what we’re all experiencing in this very extraordinary and unusual year. The pandemic itself – with disparities in the disease and fatalities from the disease experienced by both African American and Latino populations in particular, but also Asian Americans in California – have brought to our ongoing headlines a greater consciousness and transparency around the kinds of racial disparities that still exist in our society. Pandemic induced recession has also demonstrated and put in our headlines similar racial disparities when it comes to loss of income or loss of jobs as a result of the recession, experience particularly in the Latino and African American communities. Finally, the reinvigorated Black Lives Matter Movement, as a result of the murder of George Floyd, has also brought to greater public attention the kinds of disparities in law enforcement and other aspects of government that continue to adhere in California and throughout the nation. That greater awareness, that greater transparency about the racial disparities deep differences that continue to exist is why, with Proposition 16, policy makers are very likely to consider implementing affirmative action programs. But many things have changed in the twenty-four years since California has been prohibited from such consideration. Among those are that the US Supreme Court has, on several occasions, weighed in on what our federal constitution puts in terms of limits on race or gender conscious affirmative action. Specifically, the US Supreme Court has addressed higher education affirmative action in four different cases – two out of Michigan and two out of Texas. The court has also addressed employment through the Richie versus New Haven case. It’s important to note that those protections put in place by the US Supreme Court would continue to apply in California. That means that before implementing any race affirmative action, policy makers would have to consider very carefully and thoroughly what causes racial disparities and worthy approaches to address them and specifically they would first have to consider implementing race neutral, gender-neutral approaches to those disparities. That means that the conversation in policy triggered by Prop 16 will lead to many changes, but many of them will be race neutral and gender neutral simply by the ability to consider affirmative action we’ll have we will have greater attention and thorough consideration of racial disparities and how to address them. I’ll end by citing one of the most significant racial disparities that could be more aggressively addressedL today in California, sixty percent of high school seniors twelfth graders are Black or Latino, and yet at the University of California system wide, only twenty-nine percent of undergraduates are Black or Latino. Sixty versus twenty-nine. There’s no way that California could continue to thrive with that kind of disparity. We need the ability to address it aggressively and Proposition 16 would catalyze the policy discussions to lead to such solutions. Thank you.
Steven Hayward: Thank you. Professor Heriot.
Gail Heriot: Thank you. Okay I’ve got only seven minutes to to talk about a subject that is very complex. Let me start by giving you the words that Prop 16 seeks to delete from the state constitution. Those words are: “The states 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.” Those words were put in the California constitution by a large majority – fifty-five percent – back in 1996. Mr. Saenz suggests that the exit polls show that minorities voted against it. Of course, exit polls are notoriously inaccurate so we don’t actually know that, but what we do know is the gallup poll over the years has asked very very specific questions on this issue designed to be fair to both parties and to show arguments on both sides. And it turns out that minorities are against preferential treatment just like non-minorities. Those words should stay in the constitution – they are fundamental to the American creed. So important, I’m almost you know tempted to recite them again, but let me just summarize them again: they they prohibit the state from discriminating or giving preferential treatment based on race, sex, color, ethnicity, or national origin. Mr. Saenz has suggested they are redundant as to discrimination. Would that that were, true discrimination and preferential treatment are the same thing, but through some very ill-considered and ill-advised decisions of the Supreme Court, the Supreme Court ended up authorizing despite statutes that made it clear that congress intended to prohibit. They ended up authorizing certain kinds of discrimination and Prop 209 was designed to go back and to correct errors made, for example, in the old Bakke case against the University of California, but also, you know, later cases as well. Including the Post 209 case – McGregor versus Bollinger, where the court allowed discrimination in college admissions. So let me emphasize, also, what Prop 209 doesn’t do. It doesn’t prohibit the University of California or any other agency of the state of California from giving a leg up to lower income students, lower income individuals, or otherwise disadvantaged students so long as it’s not defined in terms of race, sex, color, ethnicity, or national origin. Bear in mind, for example, that there are more Asian Americans and more whites who are below the poverty line here in California than there are African Americans for example. That’s because there happen to be more Asian Americans and more whites in the state of California than there are African Americans. So here’s an example of how it works: under the current law, under Prop 209, the University of California is free to give a little leg up to students who are from low-income families or whose parents didn’t have a chance to go to college, and it does so, it does. So no matter what their race – black, white, Asian, Latino – whoever happens to need the help, that’s largely thanks to Proposition 209. Since Prop 209 essentially forced the state and the University of California to turn away from what has been doing before, and that is defining disadvantage almost exclusively in terms of race or ethnicity, regardless of income, regardless of other measures of disadvantage. In other words, Prop 209 forced the University of California to focus on the right thing – and that is individual disadvantage. And by the way, it also forced the University of California to start actually focusing on K-12 rather than papering over the problems with racial preferences. Here in San Diego, for example, University of California at San Diego started the preschool which has had some success in in preparing disadvantaged students, regardless of race, for college. So what will be the effect of repealing Prop 209 with Prop 16 instead of helping the disadvantaged? The point of Prop 16 seems to be to allow the University of California to, again, give preferential treatment based purely on race or ethnicity. Its effect will thus be to benefit students from higher income families who happen to be the right race or ethnicity. And by the way if you look back at the UC’s preferences back before Prop 209, those preferences were very large – we’re not talking about a gentle thumb on the scale in favor of underrepresented minorities, these were big preferences – that makes no sense to me. In 2007, then Senator Barack Obama was asked whether his daughters should be given given preferential treatment on account of their race when they apply to universities and he responded no. And I think most Californians of all races would agree on that. Weirdly, repealing Prop 209 is not necessary to get racial diversity that the University of California says that it needs. Fully forty-one percent of all admittees to the UC in 2020 came from underrepresented minority groups – that is African American or Latino. It’s surprising to me how much misinformation there is out there. People are arguing that African Americans and Latinos at the UC have been decimated by Prop 209, but there are almost five times more Latinos/Chicanos at the University of California in their system now than there were prior to Prop 209, and I think the number is about double the number of African Americans in the system. The difference is that these days, again thanks to Prop 209, they are more likely to come from lower income families, less likely to come from higher income families. I should say a word about public employment and public contracting too if I have the time here, since Prop 209 also covers those. In general contracts ought to go to the lowest qualified bidder, jobs ought to go to the most qualified person, but should California have a program to help the chronically unemployed? Should it have a program that might help people who’ve been previously incarcerated? Should it have programs that might help small businesses there’s businesses that have just gotten started? You know Prop 209 allows for all that. It just doesn’t allow disadvantage to be defined in terms of race, sex, color, ethnicity, or national origin. So one more point I want to be able to make, since I’ve been told to wrap up, is identity politics has been just poisonous for America. Rather than causing us to focus on what unites us, it causes us to focus on what’s what divides us. I would urge everyone here to vote no on Prop 16. And I’m going to stop because Steve will kill me otherwise.
Christopher Edley: Alright, I’m up. Hello everyone, thanks for joining us. I’m Christopher Edley. These two prior presentations have both been terrific, and thus far, I don’t have the the reaction in my gut that I have had to the presidential debates, which is appropriate of course for this academic setting. So I only have a couple of points to make. The first is that there are a few domestic challenges facing the United States that are as important, as complex, as controversial as the imperative that we build a more inclusive society that includes the economy, it includes education,, it includes our politics, it includes all the opportunities to climb the ladder of opportunity. If we do not have a more inclusive society, in particular across these long-standing divides of race and ethnicity, then America’s future will be much dimmer than we hope it will be. The division is not simply a moral pain, it is also a pragmatic pain in terms of the economic drag that these divisions have on the country and the social drag in terms of the richness of our cultures, our ability to understand, appreciate, and embrace our differences. All of that is critical to the future of the United States, precisely because we have a diversity that is inevitable and is growing and unless we do a better job of dealing with that diversity, closing disparities, narrowing the misunderstandings, eliminating the sense of disaffection and lack of empathy across lines of race, ethnicity, national, origin, and yes class. Unless we tackle those things that Americans simply cannot lead in the world and it simply cannot have any hope of allowing our children in the future to achieve the dreams that they hold on to right now. So that’s my first point: there’s no more difficult problem. My second point is: why given the difficulty of this problem and given uh the the impervious nature of the sort of resistance to change that we have faced for hundreds of years, with respect to these racial differences, why would we take away tools that hold some hope of accelerating the marrying of the disparities that divide us? President Clinton had a verbal formula that was mended, don’t end with respect to affirmative action. And I think he got it exactly right – affirmative action should end. It should end when it is no longer needed, it should end when it is no longer needed. Meanwhile, where there is a need for affirmative action what we must make sure that it is not so deeply flawed as it was in some circumstances in the past. Affirmative action must not mean quotas, it must not mean rigid rules of decision that ignore all of the other attributes of individuals. Having affirmative action to try to be more racially inclusive is not antithetical to the idea of having inclusion based upon class, based upon ideology, based upon any number, based upon religion, based upon national origin, it simply is not. In fact, if affirmative action displaces our concern with the inclusion of these other groups then it’s being done the wrong way. Affirmative action has to be about inclusion, not exclusion, not subordination. It’s a tool to dismantle the consequences of past disorders, of past subordination, and a tool to counteract the inherent tendency of all the innate tendency of all of us to feel more connected with people who are just like us. It helps us lean against that human tendency summarized as birds of a feather flock together, observed when you look at cafeterias on college campuses or in middle schools, when we look at the the lists of contacts and the first people you call when you want to hire somebody, when you want to fill a political appointment. We tend to look towards people we know and affirmative action leans against those headwinds that prevent us from moving forward in inclusion. The last point I want to make is is to underscore something that Tom Simon said earlier. At a time when the nation is refocused on the importance of bringing more justice to criminal justice and the importance of bringing more opportunity to the economics of America. To dismantle tools that may be helpful in those domains seems to me backwards and exactly the opposite direction the nation needs to move in. Policing is an outstanding example – to throw away affirmative action, to throw away tools of inclusion which Prop 209 does, to make it difficult to allow police forces to better represent the communities they seek to serve, it strikes me as exactly contrary to the passions that we’ve seen among protesters in the streets, exactly contrary to the research literature about effective community policing. So let me just stop by saying that I do believe that at the heart of many of these controversies over race and specifically of affirmative action, at the heart of them are disagreements about values. It’s not about the empiricism, it’s not really about the numbers, it’s about who we think of as being part of our community and who we believe must be included in our community to produce the kind of country, the kind of neighborhoods that we want into the future. But in in facing these difficult disputes, I always preach, that it’s important to search for the kernel of truth in what the other side is saying. So the opponents of affirmative action are correct when they say it has been misused in the past, but I believe it’s only been misused in some circumstances and President Clinton had the right solution, President Obama had the right approach, when both of them said, “Mend it, don’t end it.” California should reverse course and be more inclusive in its public policies and in its civic life.
Steven Hayward: Thank you, Professor Edly. Professor Sander the floor is yours.
Richard Sander: Thank you Steve. So I’m going to make a few points of my own, but also try to tie together various strands from the three distinguished speakers who preceded me and I’ll start by saying that that, you know, I agree with almost everything that Dean Edly said. I think I think race is is the preeminent problem that we face in America. We’ve got to find ways of reducing racial disparities, we’ve got to be imaginative and proactive, but we also have to honestly evaluate what we learn as we try strategies and see what works and doesn’t work. So most of most of my scholarly life is spent on the issue of of racial inequality. I published a book two years ago on housing segregation in which I argued that housing segregation is as close as we’ve found, so far, to a root cause of racial inequality and that if we can find ways to reduce the very high levels of segregation, that’s been empirically shown to have powerful effects on all kinds of racial disparities from education and test scores to health outcomes to employment so on. So I’ve i’ve set about with some other colleagues, I’ve set up an organization in the past year and a half to work on desegregation issues. Spent about five hours this morning working with this organization and we’re doing lots of stuff – lots of innovative stuff – and I would like to see more of our national conversation dealing with real solutions like the ones I’m describing, rather than what Prop 16 is is is about. It’s important to look at Prop 16 on its merits. It’s important to look at what Prop 209 did and did not do. And to really understand these things and think critically about them -not say, “Well as long as it’s in the general direction of trying to be more activists on racial issues then we should support it,” no we’ve got a twenty-four year history with Prop 29 and we can evaluate what happened. So the first thing that we know about about Prop 209 is that it did not end – what Gail and I would describe as – affirmative action. It ended racial preferences and discrimination. You know when you ask– a couple of the speakers have talked about public opinion and voters and so on and I want to try to sort out some confusion there. Because if you if you ask the public how they feel about affirmative action, about seventy percent are in favor of it. If you ask the public how they feel about racial preferences only about thirty percent are in favor of it and seventy percent are against. So Mr. Saenz, I think, views those two things as sort of the same thing. Gail and I view them as different things and apparently a large segment of the public views of this very different things too. Racial preferences and discrimination are about using different criteria to actually select who’s going to get a job or who’s going to be admitted to a university and so on. Affirmative action includes that, but it also includes lots of other things like affirmative like affirmative outreach -trying to do outreach uh in a way that levels the playing field, trying to do proactive things that improve the pool, improve the pipeline through which decision makers can consider candidates for admissions or jobs or contracts. And by that definition, it’s completely clear that Prop 209 did not eliminate affirmative action in California. I know that because I’ve been at University of California all that time and after Prop 209 passed, I was asked by the president of the university to participate in panels that were trying to come up with solutions of what do we do next? How do we how do we save diversity at the university? And it was always abundantly clear that we could be race conscious in thinking about how to proactively deal with that. The university came up with a detailed plan in 1998 – the year that Prop 209 and i was implemented at the undergraduate level – of how it was going to reform its outreach efforts. And, you know, it did not say and could not say “We’re going to set up programs in high schools that are only got to tutor Black and Hispanic kids.” But it could say, “We’re going to identify high schools and disadvantaged areas that are overwhelmingly Black and Hispanic and we’re going to set up tutoring programs there we’re going to help people understand how to apply to the university. We’re going to have on-campus tours, we’re going to pour more resources into those into those schools.” And all that was done and had a dramatic effect. No other state can say what we can, which is that since the late nineties, the Hispanic high school graduation rate has gone from sixty-six percent to eighty-eight percent. In other words, the the size of the dropout pool has fallen by two thirds during those twenty years. That’s not entirely due to what you see then, but but it’s due to a lot of things that happen after Prop 209 that were aimed at trying to offset the loss of preferences with other affirmative strategies. Gail has mentioned some of the numbers at the University of California and they’re they’re really quite stunning. These affirmative efforts that the university launched took a long trend where admissions and applications from underrepresented minorities had been completely flat at the university to taking off. So the number of applications from African Americans tripled over the over the dozen years after Prop 209. Applications from Hispanics quintupled and enrollment went up. It’s, you know, underrepresented minority enrollment has has something like gone about a factor of two and a half since late nineties. And because students without preferences were better matched at campuses where they would be academically successful, all the outcomes of the university have also improved dramatically. So four-year graduation rates have roughly doubled for underrepresented minorities, the number of four-year graduates has tripled over this time, the proportion of students who persist and graduate in stem fields – the most difficult majors generally – has tripled for underrepresented minorities since the late nineties. I want to particularly dispute something that that Mr. Saenz said. He said sixty percent of high school seniors in California are Black or Hispanic, but only twenty-nine percent of UC undergraduates are Black or Hispanic. I think both those numbers are incorrect – if you look at the census data on high school graduates in California, you see that uh underrepresented minorities make up fifty-four percent, not sixty percent of the, of California’s high school graduates and the UC URN presence is not twenty-nine percent, but thirty-eight percent. Thirty-eight f the freshmen coming from California high schools uh in the University of California are Black or Hispanic or American Indian. And those numbers are not only dramatic absolute increases from the nineties, but they’re also increases in relative terms. In other words, both those groups are better represented. So if you actually look at what’s happened in California, you see a whole series of successes that are actually directly linked to phasing out the use of preferences and discrimination at the university. How much time do I have left Steve?
Steven Hayward: Very little so-
Richard Sander: Okay. I’ll leave it for there and make some other points later thank you.
Steven Hayward: Okay. Thank you all. So I have some follow-up questions that have um occurred to me already, but let me allow anyone on the panel if they want to pick up on any particular threads or points, I mean we have a a statistical dispute. Oh all right, go ahead Mr. Saenz.
Thomas Saenz: No, we don’t have a statistical dispute. I’m not going to accuse Mr. Sander of making up statistic as he’s apparently accused me. They’re different statistics – he cited a number of high school graduate, percentage of high school graduates. What I said was the sixty percent of twelfth graders in this state are Black or Latino. He also cites the freshman percentage for University of California – I don’t know if that’s system-wide, what I said was that twenty-nine percent of undergraduates system-wide at the University of California are Black or Latino. Those are verifiable numbers from both the University of California and the California Department of Education. But the bottom line is whether the distinction is sixty percent versus twenty-nine or fifty-four percent versus thirty-eight, and I can argue for why the better comparison is not graduates but twelfth graders, but whatever. Whether it’s a sixteen point disparity or a thirty-one point disparity, it’s a significant and unjustifiable disparity and we ought to avail ourselves of the tools to address it. Additionally, we need to recognize that progress can come from many sources, but when numbers go up in light of changing demographics we ought to acknowledge that. And the fact is that the Latino community has grown substantially as a proportion of the population, particularly of the youth population in California in the last twenty-four years and that largely explains increases in representation. Finally, I have to say that suggesting that Prop 209 has catalyzed this progress is simply nonsensical. The fact is the main proponent of Proposition 209, a few years later, attempted to prevent any discussion of racial disparities by seeking to have voters enact the Racial Privacy initiative in 2003 – the Gubernatorial Recall Election. The Racial Privacy Initiative promoted by the main proponent of Proposition 209 would have present prevented public entities from even gathering data to identify and document racial disparities. So that gives you a sense of what 209 was really about – it was about preventing discussion among policy makers about addressing significant racial disparities. Indeed as I tried to suggest in my opening, the biggest damage from Proposition 209 is not solely and barring race or gender conscious affirmative action – and it does apply to all racers under conscious affirmative action, including the most a light-handed of such approaches. For example it is under California court’s interpretation, unlawful under Proposition 209 to engage in race targeted recruitment of any kind for employment or education. But the point is that no policymaker – whether elected or appointed – is going to highlight an issue like racial disparities if they don’t believe they have the power to significantly address it and that’s the situation Prop 209 put policy makers in. They know and understand and sometimes they’ve been advised by institutional lawyers perhaps over reading Prop 209, but they know and understand that in the end they can’t use all of the tools to address racial disparities. As a result they have no incentive to highlight or to focus on those racial disparities. The result is that even race neutral gender neutral changes have not been considered because of Proposition 209, so the notion that 209 has catalyzed progressive change on racial disparities is simply contrary to human nature and in fact the practice of policy makers in the state.
Richard Sander: Well, Steve, can I can I just try to narrow disagreement here on a couple points?
Steven Hayward: Sure.
Richard Sander: So I think Mr. Saenz – one reason why Mr. Saenz has different numbers than I am – is he’s only looking at public schools. He’s citing the California state state school website, which doesn’t include private school enrollment and I think obviously if we’re if we’re going to talk about, you know, how do California schools feed into the UC system, we need to look at private as well as public schools. That changes the number some. Secondly, his numbers on enrollment are simply wrong. The enrollment numbers are very similar to the freshman entry numbers that I gave you. Third, he’s incorrect that the growth of Hispanic enrollment at UC is accounted for by the growth of the hispanic population. Hispanic grads in 1997 made up thirty-three of the high school graduate population and now they make up forty-seven. So that’s a fourteen point increase from thirty-three to forty-seven. The proportion of UC freshman who Hispanic has risen from thirteen to thirty-two percent over that time. That’s a nineteen point increase and a more than doubling. So anyone can look at these numbers by going to UC Info Center. It’s a it’s a pretty good website maintained by the university that has all this data on enrollment and entry. You can find out for yourself which set of numbers are correct. So that by itself goes heavily to Mr. Saenz’s point that somehow when you pass Prop 209, you cannot you cannot have racial progress. It’s unquestionably the case if you look at the data that the the sort of UC’s record for URM enrollment was was rather pathetic before Prop 209. They were using preferences as just a crush to not really have to deal with the pipeline issue – they could use whatever size preferences they needed to to kind of get the freshman numbers to where they wanted. And the results for students were terrible the the Black four-year graduation rate at UCLA – my school – was fifteen percent before Prop 209 because the administrators were focused on sort of public relations numbers and not actual substantively doing things. And that changed after Prop 209. Warren Connerly may have wanted to get rid of race as a as a category, but I didn’t and no one else I know what UC did. We took this as a challenge and we came up with better programs that improved on on the pipeline and had a dramatic effect.
Steven Hayward: Can I try and broaden the focus a little bit? I mean, I always hesitate to allow – not to allow – sometimes debating how we qualify statistics gets us all into a dead end pretty fast. Let me let me try this with you, Professor Sander, and anybody: California is one of three states that passed something like Prop 209. There was also Michigan, also Washington State, I’m not sure if the forms are exactly the same or not, I don’t remember. The question is: do we have any comparative data on how California or those three states compare for a) to each other and b) to other states? Like, you know, New York, Connecticut, Massachusetts, you name it?
Richard Sander: Well, yeah, that’s a good way to put it Steve. I haven’t looked at those three – they’re actually about they’re about ten states that restrict the use of race of the university level, anyway. There are seven or eight that have propositions similar to Prop 209. I have compared California with the rest of the country and you find three things – three things have struck me. One is that we’ve had the largest increase in Hispanic high school completion over the last twenty years. Second is that we’ve had a significant narrowing of lots of racial disparity gaps. Say, you know, in life expectancy and unemployment rates. Our Black-White gaps have have improved, whereas in much of the nation they’ve remained stagnant. The third is that that at in the high school level, the proportion of Blacks who are scoring sort of in the top eighth of their class has almost tripled in the last twenty years. And the fourth I’ll throw in is that at UC, we’re we’re kind of bucking a national trend. Black PhDs in stem fields have been flat or declining for the last fifteen years, but they’ve been rising at UC. So I think there are many many cases. You know if you just sort of pick something at random, California looks better than the rest of the country.
Steven Hayward: Alright well let me, now let me like a challenge someone– oh sorry does someone else want to jump in on that?
Christopher Edley: Let me let her let me just say broadly that I don’t think the question is whether or not California has made progress. The question is how might California have made more progress because we’re not where we need to go. And so and nobody is claiming, nobody is claiming rick – at least no one I know of is – claiming that that Prop 209 in California is the only way to make progress, I mean that repealing Prop 209 is the only way to make progress. At least my claim is simply that we could do better if we had more tools. We could do better if we had more tools, but I will also say that it has to that those tools have to be wielded correctly. What you point to as some of the prac– what you and Gail had both pointed to as some of the practices in the eighties and nineties, when affirmative action was used at some in some places affirmative action meant rigid numerical quotas. That was wrong. That was unconstitutional. It was also wrong if it was the only tool that leaders, administrators, managers were trying to use to be more inclusive. That also was wrong. But hopefully everybody has learned a lot over the last thirty years and it can be done, it is being done better all over the place. So I would just urge that we think about given the persistence of these problems around race, is this really the time to put a lock on a toolbox that contains useful approaches toward building what we want to build? It’s almost like saying should we try to vote fight the COVID-19 uh but not use masks? Or should we try to fight COVID-19 but not use tracers? No, we need all the tools that can be effective provided they are used correctly. And that and and there are just just finally I want to say that that I agree with Tom completely – that the United States Constitution and indeed the Equal Protection Clauses of State Constitutions provide a backstop against gross abuses of affirmative action. They do. That’s where Supreme Court Law is right now. It would rule unconstitutional. Many of the practices that the proponents of 209 complained about. So open up the toolbox – that’s my position.
Steven Hayward: Go ahead, Gail.
Gail Heriot: I just want to respond to some of that/ I mean i’m kind of getting getting so much I want to say and I keep forgetting some of it, but let me just– that’s the way it is with this issue. For example, the issue the Pro Prop 16 people have argued that almost all states permit the kind of preferential treatment that 209 outlaws. You know, that’s because most states don’t have a direct democracy provision and so elites have supported preferential treatment for some years and, you know, those states haven’t been able to do anything about the problem and California fortunately has been able to do something about it. and more importantly the results have been good. Rick mentioned how Prop 209 has affected graduation rates – the study that was led by Peter Arcediacono at Duke University looked in particular at California and it’s not just a question of other states are doing things better. We’re the ones that are coming out on top here – it’s the University of California’s graduation rates for underrepresented minority students went up as a result of Prop 209. Not all of the increase was due to Prop 209, but I think his numbers were about twenty percent of the increase was directly attributable to students going to the schools where their academic credentials put them in the ballpark with other students. The notion that that bad preferential treatment is something of the 1990s – that’s not true. There are plenty of studies showing outside of California very very large preferential treatment that does lead to the kind of problems that we’ve been talking about: lower graduation rates, not majoring in stem. For example, the Supreme Court in in in the two Supreme Court cases from the University of Michigan: Gratz vs Bollinger and Grutter versus Bollinger. The Supreme Court in the the the Grutter case and in the Gratz case essentially, you know, suggested that some sort of preferential treatment would be permissible under the constitution. Well as a result, you know, it got worse at the University of Michigan. And that’s why the voters in in Michigan – I think it was in the year 2006 – decided that despite the Supreme Court’s authorization allowing states to to discriminate and grant preferential treatment based on race, they didn’t want it to happen in their state. And they got this matter under control and things are better at the University of Michigan now. The Supreme Court had basically dropped the ball and said, “Okay, you know, as long as you don’t don’t do it as a quota.” They didn’t say anything about how big the preference can be, they just said you can’t have a set number. But the preference could be very very great, and it was and it got worse. And it’s important that in California we’ve gotten beyond that and as a result our graduation rates for underrepresented minorities are better, our grade point averages for underrepresented minorities are better, and the number of stem majors that underrepresented minorities follow through on is higher. That is a triple crown as far as I’m concerned.
Steven Hayward: Alright–
Gail Heriot: By the way I think would be a big mistake.
Steven Hayward: Let me-
Thomas Saenz: Steve, I want I wanted to express agreement with something Rick said, if you don’t mind this.
Steven Hayward: No, it’s fine.
Thomas Saenz: Rick did say that prior to 209 – and I think after 209 in too many cases – affirmative action was, I think he used the word crutch, basically a reason not to delve into some of the existing causes of racial disparities and I happen to agree with that. I do think that, unfortunately, affirmative action, as important as it is, often was relied upon instead of doing the deep and thorough analysis of criteria for selection that otherwise might have occurred. You know, the example at the University of California is the regents knew when they adopted the SAT as an admissions requirement, they knew and had the data to tell them about the discriminatory effects – pronounced discriminatory effects – of standardized tests against African Americans and Latinos. They knew about it, nonetheless they adopted it. Was that because they thought at the time prior to 209 that affirmative action would somehow make up for it? I don’t know. But it certainly did mean that they made that choice, and it also means that there was no analysis of finding something other than the SAT to use in admissions. But the truth is, even after 209 for the reasons that I’ve described, there was no serious consideration of abandoning standardized testing as a criterion of admission. I took twenty-three years – until last year – for the University of California to begin to reconsider the use of discriminatory standardized tests. So Prop 209 didn’t catalyze that – it took twenty-three years to finally get some focus on it, but I do agree with the notion that affirmative action – unless your policymakers are being aggressive about addressing racial disparity – can be a crutch. But that doesn’t, in my mind, mean that you eliminate that as a tool. You make all the tools available but force your policy makers to really give attention to racial disparities, which I think 2020 – with the kinds of disparities we’ve seen in our headlines – catalyzes even more and why California should have all the tools at its disposal.
Steven Hayward: So, Thomas, I was– I had written down on my possible aspects of this topic the SAT business is part of a larger conversation. Now going on rethinking meritocracy, then I rejected the idea because it takes us too far afield and that’s a subject that deserves its own separate consideration. I would, though, like to go back to a comment of yours that takes us out of the whole college scene for a moment. You know, you’re unfortunately stuck here with all those academics and we think about this primarily, but you made a very important point that Prop 209 also affects public contracting, public employment hiring. And so my challenge to Gail or anybody – but maybe I’ll start with Gail – is forget the universities for a moment and think about the changing demographics of the state. And doesn’t it make some sense to say that Oakland maybe does want to have more black police officers? Maybe Stockton wants to have more Hispanic police officers? Maybe certain cities in Orange County that have changed so dramatically also want to have more Asian police officers? I don’t know. To the extent that makes sense, doesn’t Professor Edley have a good point that a tool of taking into consideration that kind of social good is sensible?
Gail Heriot: It’s utterly poisonous. It leads to lifts in society that, you know, you don’t wanna have. Do we already have African American police officers? Hispanic police officers? Of course we do. We do because they’re qualified for those jobs and, you know, that makes perfect sense to – hire the person who’s qualified for the job. Are there things that might actually cut in favor? You know, you do want Spanish-speaking police officers. Is that going to be more commonly found among Latino police officers? Of course it is, but it’s important that we have police officers who speak the language of the people that live in the city and, you know, that will therefore come, diversity will come naturally under those circumstances. I don’t think that there’s any reason to give, for example, preferential treatment to a a Latino applicant who doesn’t speak Spanish, but nevertheless, can say yes but I am the same racial group as as the the people of the city. What does – matter language does matter and that will automatically create a situation where you’re more likely to have more Latino police officers. Do I think that in public contracting that it’s a good idea to give preferences based on race? No I don’t, and I do think, on the other hand, that it may make sense to give a little leg up to smaller new businesses and that might be disproportionately African American or women-owned businesses or it might not be. But doing it on the basis of race or sex, strikes me as as as simply a way to divide society in ways that are going to cause an unraveling as they seem to be doing now. By the way, taxpayers come in both sexes and in all races. Prop 209 has saved taxpayers over time billions of dollars and that is hugely important, I think, and it benefits people who pay taxes and that’s important. There are very very wealthy people who happen to be female or happen to be be from what would otherwise be an underrepresented race, but they are themselves very well off. Does it make sense to give them preferential treatment? I think not.
Steven Heriot: Professor Edley, I think– go ahead.
Christopher Edley: Yeah, I mean– let me say two quick things. One one is I think evidence matters and if the research says that policing works best when the police force reflects the community it’s serving, I think that’s evidence that we should pay attention to. And that’s that’s point number one. I’m not saying that it’s dispositive, but I’m saying if you can put that fact in – that evidence – in the mix with concerns about qualifications, you should do so. The second thing I want to make say is that the point that Tom made earlier about the exit polls from the original Prop 209, I think, is very telling because the the racial split over the issue back then reveals something that today remains true. And that is kind of a values-based difference in the amount of patience we have for racial progress in this country. And some people think that we should just try to be good people and let things happen naturally and someday everybody will be able to sing Kumbaya. Others of us think that there’s not only an enormous history, but there is research on the psychology of differences that tells us that natural solutions to the kind of dangerous differences that plague us now, that natural solutions are all but a fantasy. Last point I want to make is that the word “racial preferences” or “preferences” is not self-defining. And uh someone who says they are against racial preferences might from another perspective be viewed as someone who is indifferent to racial differences even though you’ve got to pay attention to them in order to overcome them. And so I guess at the at the bottom I think this real the real discussion to me is largely about how much of it, how much of it, how much of an imperative it is that we tackle effectively these racial ethnic gender divides in in the country. And I for one can’t think of a greater imperative right up there with climate change.
Steven Hayward: So let me turn now – if I can – to a few audience questions. One person takes note of the fact that the few polls that we have by good posters, including our unit at IGS, shows Proposition 16 trailing. And the question wonders that the panelists could speculate why. Is it, you know, confusing wording? Is it the presidential election has just made a mess of everything? Or is, you know, public opinion still roughly where it was – at least the entire population is taken as an aggregate – is still where it was twenty-five years ago? Does anyone want to take a stab at that? Professor Sander.
Richard Sander: Yeah the the latest, the latest poll from Public Policy Institute of California was released just yesterday and showed fifty percent of the California likely voters against thirty-seven percent before the rest undecided. One striking thing about that poll is that there was, I believe, a plurality of Hispanics we’re also against. So it suggests something different from the racial divide that Mr. Saenz outlined at the beginning. This is, I don’t think, a sign of stagnation because many other polls have shown really a quite significant changes in racial attitudes in the last year, partly as a result of the, you know, the the the civil civil uprisings and and protests from May and June. I think there is a much higher there’s much higher support for Black Lives Matter. There’s much higher support for trying to proactively tackle these problems. And longitudinally we see a steady increase in the proportion of Whites, for example, who are interested in living in Black neighborhoods, and in fact the proportion who do move to Black neighborhoods. Almost every indicator of racial attitudes has shown slow but steady progress year after year . So what do what does what does it mean that people don’t like Prop 16? I think it means that they don’t want simplistic solutions. I think it goes to the idea that they don’t like the idea of racial preferences and they do see a distinction between affirmative action – which the official ballot language does not mention – and and, you know, making decisions based on diversity goals. They see that as not not a fair or effective way of advancing change. And, you know, we haven’t talked about it so far, but but the undercurrent here is is who’s going to experience discrimination under Prop 16. At the University of California that would clearly be Asian Americans. The Asian American community is very very upset about this. Thousands of people are – thousands of Asian Americans are working against it – have contributed to the No Campaign. And, you know, if we if we really want to move forward on race is it a good thing for the state of California to legalize large-scale discrimination against Asian Americans at the university? I think that’s incredibly counterproductive and I think that’s what a lot of other senses too.
Steven Hayward: Anyone else want to– Mr. Saenz.
Thomas Saenz: So most polls – including PBIC Poll – question folks after telling them what the ballot label and the short summary and ask them what their view is. But that’s not how most people vote when they actually get down to voting. Most of them will read the remainder of the ballot pamphlet, including trying to identify who’s in support and who’s against. They’ll read the longer legislative analysts offices description of the measure and its fiscal impact, and notably no fiscal impact, despite what Ms. Heriet said in that analysis . So what our polls show – and I believe those who are doing more detailed polls across the board on Prop 16 show – is when people know more about what this ballot measure means, the levels of support go up. And so in the end, in fact all of the groups of voters of color – Latinos, African Americans, Asian Americans – end up as they were in ninety-six percent with super majorities in support of repealing Proposition 209 when they understand what it’s about. The problem, in part, is that we haven’t addressed this issue for twenty-four years in this state so many, many voters were either not alive or certainly not politically conscious twenty-four years ago, so it does take education for folks to understand what Proposition 16 is about. But once they are informed, across the board we do see high high levels of support for 16 among African Americans, Latinos, and Asian Americans. We also see majorities of support among White women for Proposition 16. So I do think it’s largely about getting information out. Now getting information out is where some of the other challenges the question are identified arise and the fact is this is an unusual year, so door-to-door canvassing that might be a usual method of getting information out is not really widely available, obviously. We have to reach folks where they are – at their homes by and large or maybe some of them at work, but we’re not going to be able to do sort of in-person work that happened previously. And this is also where the presidential campaign – critically important obviously – but lots and lots of money. Which means that it is swallowing up a lot of the television advertising space that that’s available. So it’s going to the presidential campaigns and it is also going to– there are twelve measures on the California ballot, as you know. Some of them have lots and lots of money on, one or both sides. I mean in particular Prop 22, Prop 23, Prop 15 – these are three measures where there is much, much, much more money being invested in television ads on both sides, and that takes up the space that’s available and television becomes more important when you can’t do the door-to-door canvassing to the level you might otherwise have done. But in the end, when folks are aware of what the measure is really about, there is majority support. Now that’s in part because super majority support among voters of color is different in 2020 than it was in 1996, and that’s simply because today in California forty-two to forty-three percent of registered voters are voters of color. Wasn’t even close in ninety-three, but when you get super majorities among voters who constitute forty-two or ninety-three of the total electorate, then you can win.
Steven Hayward: Well one thing I know as a political scientist is that over the last roughly twenty years, ballot propositions in California have become more unpredictable about their outcomes, harder to pull. But the other thing I think is still true – although I haven’t looked at the last ten or twelve years – is that there tends to be a bit of a no, a vote no bias to propositions. In other words, where you have a lot of undecided voters, it tends to break on the no side. So we’ll see how that falls out this year and there’s often variation and you’re right depending on advertising.
Christopher Edley: But Steve, it’s also it’s also true that– I mean I look I would not be at all surprised if Prop 16 is defeated. I mean after all, in a few days probably forty-five percent of the electorate will vote for the candidate who has been the most racially divisive president, probably since what Woodrow Wilson. So if if if forty-five of the electorate is in favor of supporting a racially divisive president, then of course there’s going to be a substantial body of people – even in California – who will care more about dismantling preferences than they will about racial progress. It’s just to be expected and so the fight is a worthy one, but it is I don’t think anybody went into it thinking it was going to be an easy one. They didn’t just believe that it was the right one.
Steven Hayward: Yeah I’ll be surprised if Trump does much better than forty, but never mind that for now.
Gail Heriot: Certainly not in California.
Steven Hayward: Yeah right. We’re just about time. I just want to mention one question – we don’t have time to treat it, unfortunately, I don’t want us to run overtime. There’s one that I had from one of our members of the audience and it’s a little bit like the meritocracy question which is an enormous thing that requires separate and serious treatment and Rick Sanders hinted at this a little bit by talking about outreach efforts farther down the educational chain in the public schools and my version of the question is is: aren’t we putting an awful lot of weight on higher education to be the point of remedy for so many things that go wrong all the way down? And about that, I bet we’d have a lot of general agreement and some good ideas and some disagreement and so forth. But so plant that is something that needs to be thought about as this issue goes forward in whatever form. But with that, I think I need to draw us to a close because we’re right up against our hard stop. I do want to make one very brief commercial announcement: if you’re not suffering Zoom fatigue, at three o’clock today – an hour from now – our friends at the Citrin Center, down in the political science department, are doing a webinar on the last ten days count down the 2020 election. It’s going to be chaired by Rob Van Houweling. Right the significant other of our Molly Howeling at the law school. You can look at Citrin Center at the Berkeley edu website and we’ll give you a link to register and I’m going to show up for it because I expect it’s going to be excellent – it’s got some other academics from around the country. And with that, I’m going to have to abruptly adjourn us because we have run out of time. I want to–
Christopher Edley: Go vote. Go vote. Go vote.
Steven Haward: You sound like Facebook, Professor Edley. I want to thank the panel – it’s this has been a terrifically sparkling, I think, conversation about what’s obviously a difficult issue, so I want to thank all of you for coming. And as I say to the audience we are out of time and we thank you for yours.