Breaking down the status of affirmative action at UC Berkeley

The U.S. Supreme Court dealt a significant victory to supporters of affirmative action June 23 when it upheld the consideration of race in the admissions policy of the University of Texas at Austin. But the decision won’t impact the university’s admissions policy because California state law supersedes the verdict. Related article

By Sahil Chinoy

June 29, 2016

What is affirmative action?

Affirmative action is a policy of favoring those who have historically suffered from discrimination. In the case of college admissions, it usually refers to giving extra consideration in the admissions process to underrepresented minorities — Black, Latino and American Indian students, among others.

What did the Supreme Court say?

Thursday’s decision reaffirmed that race-conscious admissions policies can be legal. It rejected a challenge to the University of Texas at Austin’s admissions policies brought by Abigail Fisher, a white applicant who in 2008 claimed the university had denied her admission on the grounds of race.

At the time of Fisher’s application, the University of Texas at Austin automatically admitted the top 10 percent of each Texas high school’s graduating class. Applicants who didn’t make this cut, such as Fisher, could still be awarded admission under a holistic review process, which, among factors such as leadership qualities and family circumstances, also considered the applicant’s race.

The court ruled 4-3 that because the university has an interest in promoting the racial diversity of its student body, and because race-blind policies had failed to accomplish that goal, the university’s policy was indeed permissible. Justice Anthony Kennedy wrote in the majority opinion:

“A university is in large part defined by those intangible ‘qualities which are incapable of objective measurement but which make for greatness.’ … Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”
Justice Anthony Kennedy

What is the legal precedent?

1978 Regents of the University of California v. Bakke
Upheld affirmative action at the UC Davis medical school but ruled that specific racial quotas are not permissible.
2003 Grutter v. Bollinger
Upheld the University of Michigan Law School’s admissions policy and elaborated the conditions under which affirmative action programs are lawful. If a university can explain why diversity is important, show that considering an applicant’s race is necessary to achieve diversity and prove that it isn’t using racial quotas, then it can use race as a factor in its admissions process.
2013 Fisher v. University of Texas
Fisher’s case was first heard in 2012, after which the Supreme Court sent the case back down to a lower court to examine whether the admissions policy was too far-reaching in attempting to achieve diversity. The lower court upheld UT’s policy, but the decision was again challenged and brought to the Supreme Court.

Does the UC system use affirmative action?

No. California schools are bound by Proposition 209, which in 1996 disallowed state public institutions from discriminating on the basis of race, sex or ethnicity. That means the UC system can’t use an individual’s race as a factor when considering his or her application.

How is UC Berkeley similar to the University of Texas at Austin?

Both schools are the flagship campuses of large public universities in majority non-white states. Furthermore, both have evidence of campus climates that some students from historically underrepresented groups find hostile.

Does this mean UC Berkeley might begin an affirmative action policy?

No — the Proposition 209 ban will remain effective despite the Supreme Court decision. In California, an affirmative action program cannot be implemented unless state law is changed. Seven other states have passed similar affirmative action bans.

How did Proposition 209 impact minority admissions at UC Berkeley?

The admission rates to UC Berkeley for Black and Latino applicants dropped precipitously from 50 percent and 45 percent, respectively, in 1997 to 20 percent and 21 percent in 1998. The rate for white applicants increased from 31 percent to 33 percent in the same period. In 2015, the admission rate for Black students was 13 percent, while the rate for Asian American applicants was 23 percent.

Admission rate at UC Berkeley

Source: University of California

Why is diversity important?

According to the state Master Plan for Higher Education, the university is obligated to create a student body reflective of California’s diverse population. Since 1996, however, UC Berkeley has struggled to meet that goal.

While Black students represented 6.4 percent of California high school seniors who graduated in 2013, they made up less than 4 percent of new UC Berkeley enrollees — just 117 students. That year alone, 2,559 Black students applied for admission to UC Berkeley.

1997 1998 2013
Black students as a percentage of CA graduating seniors 7.7% 7.5% 6.4%
Black students as a percentage of UC Berkeley enrollees 7.8% 3.7% 3.8%

Source: National Center for Education Statistics, University of California

The story is even more dramatic with Latino students, who have constituted an increasing fraction of the state’s graduating seniors. While Latino students represented 47 percent of California high school graduates in 2013, they made up 17 percent of UC Berkeley enrollees. That number, however, has increased from just 8 percent in 1998.

1997 1998 2013
Latino students as a percentage of CA graduating seniors 30.5% 31.1% 47.1%
Latino students as a percentage of UC Berkeley enrollees 14.6% 8.0% 17.0%

Source: National Center for Education Statistics, University of California

Asian students — some 13.7 percent of the state’s high school graduates — accounted for 47 percent of UC Berkeley’s fall 2013 enrollees.

Many argue for affirmative action on the basis that student body diversity has documented benefits, some of which are listed in an amicus curiae brief filed in the Supreme Court case on behalf of social and organizational psychologists.

“Social science research demonstrates these benefits, including reducing anxiety that may result from interracial interactions, promoting better problem solving and academic performance, reducing prejudice and bias, reducing the racial isolation of underrepresented students, and reducing stereotype threat. Racially diverse educational environments also better prepare students to navigate an increasingly diverse professional society, workforce and civic life.”
Brief of social and organizational psychologists

What are the arguments against affirmative action?

The advocates of Proposition 209 argue that any preference granted based on an individual’s race or gender is discriminatory and illegal. The original campaign for the proposition was led by Ward Connerly, a former UC regent, who on June 23 commented in a statement:

“The (Supreme Court) has, once again, betrayed the United States Constitution and a central tenet of American society and law that the color of a person’s skin should not be a factor in the public domain.”
Ward Connerly

Some opponents of affirmative action also argue that racial consideration can lead to ill-prepared applicants being admitted, a phenomenon sometimes referred to as the “mismatch effect.” They cite the improved six-year graduation rate of Black students from UC Berkeley — which has increased from 61 percent for freshmen entering in 1990 to 79 percent in 2009 — as evidence that banning affirmative action has led to better student outcomes. The Black graduation rate still lags behind that of Asian and white students, who have 94 percent and 91 percent six-year graduation rates for freshmen who entered in 2009, respectively.

Six-year graduation rate at UC Berkeley

Source: Cal Answers

The late Supreme Court justice Antonin Scalia sparked controversy when he cited this position during the oral argument for the case:

“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less advanced school, a slower track school where they do well.”
Antonin Scalia

What is the university doing to try to achieve racial diversity?

Unable to consider an applicant’s race in the admissions process, the university has expanded its admissions criteria to include an applicant’s life experience and his or her performance relative to the opportunities available in high school. It has also moved toward holistic application review instead of fixed weights for particular criteria. In addition, it has sought to reduce its reliance on standardized test scores, given evidence that family background can affect an applicant’s performance on such tests.

Still, these measures have not been enough, according to a UC brief filed with the Supreme Court:

“While this effort produced some benefits, the bottom line is that today — more than seventeen years after passage of Proposition 209 — the enrollment rates for underrepresented minorities still have not rebounded at UC’s most selective campuses, and the overall enrollment figures at UC have not kept pace with the demographic changes in California.”
UC amicus curiae brief

In September, UC Berkeley announced the African American Initiative, aimed at correcting a culture unwelcoming to Black students. Among other measures, it provides for a $20 million scholarship fund for Black undergraduates.

Have there been any attempts to overturn Proposition 209?

In 2012, Senate Constitutional Amendment 5 — an initiative that would overturn the provisions of Proposition 209 that restrict affirmative action at California public universities — was introduced in the California State Senate. The amendment was passed by the state Senate in 2014, but after the state Assembly referred it back to the state Senate, it was withdrawn from further consideration.


A previous version of this article incorrectly stated that the six-year graduation rate for Black freshmen entering in 1990 was 72 percent. In fact, it was 61 percent.