Jerry Brown and Racial Neutrality

Liberals just can't tolerate a race-neutral government, arguably the best and least intrusive way to keep racial discrimination at bay. But we racial preferences opponents commended Governor Jerry Brown earlier this month for vetoing SB 185, a bill that would have restored racial preferences in California.

State Senator Ed Hernandez introduced the bill earlier this year to authorize the University of California and California State University systems to consider race in admissions, despite a law barring the practice at taxpayer-supported schools. Fifteen years ago, 54 percent of California voters approved Proposition 209, a constitutional amendment that reads in part:

The state 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.

To the lay eye, the language is clear and plain. To a lawmaker's eye, the language is ambiguous, fluid, and subject to the whims of interest groups. Various groups have challenged the law, and California's highest court ruled six to one that Proposition 209 was constitutional. Groups opposed to racial neutrality in government march on.

Liberal Brown and the left-leaning Los Angeles Times agree that taxpayer-supported universities should be allowed to lower admissions standards for certain racial and ethnic minorities, but both believe the judiciary should interpret the law, as it is constitutionally charged to do. In a letter to the state senate, Brown said the "constitutional system of separation of powers requires that the courts -- not the Legislature -- determine the limits" of the law. The newspaper opposed the legislature's attempt to restore racial preferences:

As much as this page exhorted Californians to vote against Proposition 209 in 1996, the constitutional amendment that bars affirmative action in state hiring and admissions at public colleges is now the law, having survived numerous legal challenges. A bill passed by the Legislature this year that would allow the University of California and California State University to "consider" race, gender and so forth in the admissions process is a clear attempt to flout that law. Gov. Jerry Brown should veto SB 185, which would thwart the will of the voters even if it survived a certain legal challenge.

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We understand the frustration of the initiative's opponents, after multiple losses in court. Yet as a matter of principle, we also object to flouting the will of the voters who placed the measure into the state Constitution.

Why are racial preferences still an issue? In 2003, the U.S. Supreme Court in Grutter v. Bollinger upheld the University of Michigan law school's use of race as a "plus" factor in admissions. The court said the school's racial preferences policy was "narrowly tailored" to further the state's "compelling governmental interest" of increasing skin color diversity on campus; however, schools must engage in "serious, good faith consideration of workable, race-neutral alternatives" before considering race. (The court struck down Michigan's points-for-race system in undergraduate admissions in companion case Gratz v. Bollinger.)

Grutter swung the race-based admissions gate wide open, but the court has the opportunity to close it for good in Fisher v. Texas. In 2008, Abigail Fisher and Rachel Michalewicz were rejected by the University of Texas (UT) at Austin and sued for racial discrimination. The U.S. Court of Appeals for the Fifth Circuit upheld UT's race-based admissions policy. The plaintiffs have asked the Supreme Court to hear their case.

Ironically, Texas had found a way to increase skin color diversity without the explicit use of race. In 1992, Cheryl Hopwood sued UT for racial discrimination after the law school rejected her, and the Fifth Circuit ruled in her favor. The state scrambled for a racially neutral alternative, and the legislature passed the top 10 percent law. Students graduating in the top ten percent of their class are granted automatic admission to any of the state's taxpayer-supported schools. (Schools also considered an applicant's socioeconomic status.)

The plan worked, but at a price. Some high schools are more rigorous than others, and in some cases, students at higher quality schools were denied admission over students from the top 10 percent at lower quality schools. As expected, students gamed the system. The Chronicle of Higher Education reported on a study that showed a "significant share" of Texas students choose less rigorous schools to improve their chances of graduating in the top 10 percent.

After Grutter, Texas continued the top 10 percent plan, but reintroduced race. Why did the state return to the explicit use of race when the top 10 percent plan was working? The race-neutral approach hadn't achieved the "full diversity that the university believes it should," UT vice president of legal affairs Patti Ohlendorf told the Texas Tribune.

It's almost pathological the way liberals go out of their way to avoid racial neutrality. Where's Freud when you need him?