Friday, October 13, 2006


So here’s the promised piece on Proposition 209. For those of you who don’t know what it is, here’s a brief summary. Around 10 years, a measure was put on the ballot to end discrimination in CA public schools based mainly on ethnicity. Sounds good, you might think, to prohibit discrimination. Except the intended target was the UC system and to bar affirmative action in admissions. Everyone should be judged on their merits, went the argument. The proposition passed, and the UC system has since been prohibited from using affirmative action for admissions purposes. (UCLAW professor Eugene Volokh served as legal advisor to the drafters of 209.)

The result: minority enrollment in the UC system has gone down significantly and the majority of the students in the UC system are 1) Asians and 2) Whites. And law school at UCLA, the great majority of students look and act like me. (Last year, there was one black female in the entire law entering class.)

I have both positive and negative opinions about Prop. 209.

The Good:
Proposition 209 was democracy in action. A group of people saw something they didn’t like and worked to put the measure on the ballot. A subsequent majority of the voting population passed the bill, and hence democracy in action. I support 209 in so much as it fosters democratic principles.

The Bad:
The UC system is a public institution, and it should serve and reflect the public. (DUH!) Except the public in the State of California is 55% minority, and the UC system does not reflect the racial diversity of the people it serves.

Personally, my biggest problem with UCLAW is the lack of ethnic diversity. Most students here are white and come from (upper) middle-class families. I understand the argument that law school is in many ways self-selecting, and simply more white students apply to law schools. Fine. But, 209 has done the disservice of causing UCLAW to be way too homogeneous. Think about it: diversity (racial, political, social, etc) is inherently a good thing, and would you want to go to a school where everyone looked, acted, and thought like you? [BigNameUndergrad] was much more diverse, and I miss that component very much.

So, we are in law school and what do lawyers do when they see a law they don’t like? They either seek (1) to overturn it, or if not (2) to find loopholes around it, while still following the letter of the law. Berkeley and UCLA are the UC’s flagship campuses, and what we do, others follow. Boalt, instead of using race, has begun to use “socioeconomic” factors as an element in its admissions process, under the assumption that the poorer area you are from, the higher the chances of you being a minority. If your application states that you live in zip 90220 (South Central LA) and/or you went to high school with sub-50% graduation rate, chances are you are an underrepresented minority. And if your application states that you live in zip 90272 (Pacific Palisades) and/or went to a high school where 95+% went on to four-year colleges, you are most likely not an underrepresented minority. Through using this process, Boalt has become much more diverse while at the same time following the letter of 209. As much as 209’s writers hate it, there’s really nothing they can do (there are some whites in South Central LA), and a law prohibiting discrimination on socioeconomic factors would never pass.

UCLA has resisted doing that for a couple of reasons. The most cynical: UCLAW has jumped in the ratings, and eliminating the use of affirmative action has caused the overall GPA and LSATs to increase, and subsequently raising its all-important US News Ranking, in its futile quest to catch up to Boalt. But luckily, there has been enough outrage and protest at UCLAW recently that chances are, it will soon move towards the “comprehensive review” of Boalt.

One more bit of criticism of proponents of 209: They don’t like affirmative action, yet argue something strangely similar to affirmative action with regards to Asians. The undergrad populations at UCLA and Berkeley are both 50+% Asian, even though they represent only 12% of the general CA population. There are arguments that meritocracy should not be the only admissions factor for Asians, that there should be limits on Asian enrollments to avoid overrepresentation, and for the need of the UC system to reflect the CA population. Hypocritical argument, anyone? I'll give you a gold star if you spot it.

[Update: Based on some inside info, apparently 60% of applicants to UCLAW are admitted on numbers alone (LSAT+GPA) and only 40% actally gets sent to readers]


Anonymous Anonymous said...

That was an interesting post. I had one (sort of long) comment. You write:

"Think about it: diversity (racial, political, social, etc) is inherently a good thing, and would you want to go to a school where everyone looked, acted, and thought like you?"

I've always thought that there was a problem with this approach as a justification for racial preferences, since it basically assumes that one's race determines how one thinks or how one acts (I'll grant that it usually determines how one looks). Do you think black people as a group think or act differently than white people as a group? If not, then what does race-based affirmative action have to do with diversity beyond diversity of appearance? In many ways, this argument supports a kind of racial essentialism.

I think affirmative action proponents have realized this problem, and now I occasionally hear the argument (from Supreme Court justices and others) that the importance of affirmative action is that it allows white students to see that black students (as a group) *don't* necessarily act or think differently than white people as a group.

It all makes me a little skeptical. Is it really about diversity, in the end? Nobody talked about diversity until after Bakke -- a bit of the tail wagging the dog.

Anyway, food for thought.

2:42 PM  
Blogger The Fox said...

Point taken.

I recognize the argument that not everyone in each racial group should be lumped as one kind of person, but my diversity argument was that by having people of different sorts is the best way to expose people to all sorts of opinions and cultures, a sort of collective diversity argument.

Classic example: in a class about civil rights and the police, I'm sure white, middle class guys will have less to say than someone from South-Central who suffers constantly from being illegally stopped and searched. I'm not saying that everyone from South Central will have the same experiences, but first-hand, and hence valuable experiences regarding race and police, can come from people in South Central and not kids from Pacific Palisades.

8:56 PM  
Blogger Mademoiselle De Rigueur said...

You bring up some good points Fox, I am however too tired to make any long comments in the fashion of anonymous (who I am beginning to think is the same person.)

All I have to say is I came from an "Opportunity" Program at LiberalNursery that accepted on the basis of econ. factors, and subsequently brought in all the minorities at LiberalNursery. Go figure.

About BillyBoy: I think we were the only law students there, everybody else didn't want to miss class. (?!)

11:59 PM  
Anonymous Anonymous said...

Here's the problem with AA: Either everyone has to do it, or no one can.

If schools like UCLA disallow AA, then the minority students that can get into UCLA on purely merit can also get into schools ranked significantly higher than UCLA that still use AA based on merit+race. So of course UCLA's diversity went out the window.

If no one was allowed to use AA, then the percentage of students at each school would be much more even. The supreme court could make it happen, and it would be glorious.

12:09 PM  
Anonymous Anonymous said...

As a person at a school that has AA, the problem is this:

When you find out that a fellow student, solely on the basis of being Hispanic and female, was able to walk into your school with a full scholarship, even though she had a 155/3.1 (especially when you had a 171/3.7 and are only getting a half scholarship) you get angry. And you have a damn good right to be angry.

Consequently, since we know exam performance is tied to LSAT scores, and we see that same person pad the bottom of the curve at exams, we are excited. AA breeds inherent racist feelings towards fellow students, and for this reason, it should be stopped.

12:12 PM  
Blogger The Fox said...

It is funny that I'm arguing for "comprehensive review" (I will not call it AA since AA is illegal according to 209) when I was a clear 17x,3.5+ numbers admit.

It is also funny that anti-AA folks feel the need to hide their identities since it is not the PC thing to say.

Let's take the anti-AA argument one step further:

I'm sure they will feel fine in a non-AA world when all those high-achieving Asian kids fill the entire undergrad populations of UCLA and Berkeley, since merits should be the only thing that matters, right?

I'm sure they'll want the SCOTUS to ban legacy and development factors in admissions for all schools, both public and private, since it is based on favorable treatment of something (money, parents) uncontrollable just like race.

And I'm sure they would want to force Wellesley and Deep Springs to stop discriminating based on gender, something as inherent and uncontrollable like race.

And also force Notre Dame, Liberty, and Yeshiva to stop discriminating based on religion.

Race, religion, gender, economic status...the four core categories people identify with. Why not ban them all?

The supreme court could make it happen, and it would be glorious. (right?)

6:49 PM  
Anonymous Anonymous said...

As a previous anonymous poster (the first one on the 209 issue), I just wanted to point out that it was a little unfair to suggest that those critical of AA "feel the need to hide their identities since it is not the PC thing to say." I'm guessing we're anonymous for the same reason you're anonymous, right? It's not because we're ashamed of our positions -- it's because it causes various problems to post your thoughts with your name attached all over the internet.

As for the substantive response, I think you're wrong to assume that critics of AA would care if Berkeley and UCLA were filled with all those "high-achieving Asian kids." I personally wouldn't. I noticed that you made this point in your original post on 209; although I haven't done an exhaustive search, I've never heard Ward Connerly (or any other 209 proponent) arguing for quotas to limit Asian enrollment. The problem is not the racial makeup of the school when preferences *aren't* used -- it's the negative race-based outcomes when preferences *are* used.

Also, I think it's not a good-faith argument to analogize between the use of race in admissions and the use of legacy status, gender, and religion. It's just not even close to the same thing (for numerous reasons), and I think it's not very effective to counter AA critics with this reductio ad absurdum.

Finally, legacy preferences (the closest thing to race-based AA in your analogy) are not even close to being as substantial as racial preferences. And they don't target a discrete racial group. But, again, I think most AA critics wouldn't care if you got rid of them either.

11:28 AM  
Blogger The Fox said...

I didn't mean to imply that Connerly was anti-Asian; rather, if you go and talk to many anti-AA people, I guarantee you will hear something about how "there's too many Asians in the UC system," and something about how "all Asians do is study and they're not well-rounded and we need to admit people who are not just good students but well-rounded individuals," which I'm sure you would agree smacks partly of AA. I've even heard the extremists say things about how "this is our country, and white folks can't be crowded out."

I respect that you are actually reasonable in your arguments rather than argue from a strict dogmatic view. I guess we simply disagree on this issue.

Why do you think then that of the top 25 law schools, only UCLAW (Boalt in name, but not in reality) does not practice AA? Even if some deans personally think AA is unfair, why do they still do it? (please don't say something about because all law schools and academia are full of liberals.)

12:42 PM  
Anonymous Anonymous said...

I agree that there are those out there who fit the above description ("America for Americans," etc.). I just think it's not particularly useful to consider those people in discussing the arguments for and against AA. I think that the best arguments on the anti-AA side don't involve positions like the above.

As for your question about law schools and AA, I think some deans, etc. probably still believe that AA is a good thing -- albeit for remedial and not necessarily diversity reasons. But, more importantly, nobody wants to piss of the alumni, students, AALS / ABA, and the federal government (depending on the administration) all at the same time. That's what would happen if a school just went cold turkey on AA. There might even be discrimination lawsuits brought against the schools (although I'm not sure how successful they'd be). In the end, I think AA probably survives due to a mixure of good-faith belief in its value, and a lot of inertia. And I would guess that law school administrations are more conservative than you think. Yes there are conservative professors, but aside from Chicago and George Mason, I'm not sure how often they're allowed to run the school.

I should note that I don't have an emotional problem with AA -- it doesn't irritate me or anything. I just think it's not questioned as rigorously as it should be, given its presumptive unconstitutionality and its tendency to keep people thinking about race all the time.

10:48 PM  
Anonymous Anonymous said...

Whoops -- that should be "law school administrations are more *liberal* than you think."

10:51 PM  
Blogger The Fox said...

Fair enough, but I don't place too much credit on the whole liberal administration argument because I think it oversimplifies issues.

Chicago gave a college friend (URM, sub-25% #s for Chicago) close to a full ride. So, I guess to my delight (and your chagrin) AA is still alive and well even in conservative places.

I would also add Notre Dame to your list. And a certain law school in Malibu (I see you have a LA IP) is also pretty conservative.

You might also be interested that Mason's former dean now teaches here at UCLAW.

11:30 PM  

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