Proposition 16, on the ballot this November, aims to repeal Proposition 209, passed by California voters in 1996 (it received 54.5 percent support at the time). Here is what Proposition 209 says:

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.

So, a vote for Proposition 16 is a vote to allow the state of California to grant preferential treatment to an individual on the basis of race.

I do not believe that is a good outcome for California. I do not believe it is even a moral outcome. I will develop my argument in the context of the use of race regarding admissions to the University of California. My argument is as follows:

  1. Affirmative action denies a person a benefit because of that person’s race.
  2. Affirmative action’s purposes can, in large part, be accomplished by other means.
  3. Affirmative action has unintended harmful consequences.
  4. Affirmative action is the same whether characterized as a quota, set-aside, preference, or tiebreaker.
  5. Doing away with affirmative action did not devastate numbers of minority students at University of California campuses.
  6. The moral question remains.

Let’s examine these points one at a time.

Affirmative action denies a person a benefit because of that person’s race.

If there are one hundred spaces available for an entering class, say, in the engineering program at UC–Berkeley, to rule that no more than forty could be Asians would be deeply offensive to all of us. Any Asian, within the 41st to 100th most qualified, would be right in feeling California had discriminated against her because of her race. She would have been admitted were she not Asian.

Instead, suppose fifteen of the one hundred entry positions are reserved for students who were some race other than Asian. Since there are only one hundred admissions in total, the pool available for Asians would have been limited to eighty-five. Even if all eighty-five of these slots went to Asians, the eighty-sixth would be in exactly the same position as the forty-first in my first example. She would be excluded because of her race.

Affirmative action’s purposes can, in large part, be accomplished by other means.

The Haas School of Business at UC–Berkeley was ranked seventh in the country when I was dean there in the past decade. The Wall Street Journal did a separate rating as to which business schools were the best places to recruit minority-race MBAs. Haas placed sixth nationwide. This all occurred under Proposition 209—that is, without using race as a preference in admissions.

Instead, we made sure underrepresented minorities knew that business school was for them. Our MBAs visited community colleges and California State University campuses to promote the concept of an MBA. Our undergraduates in Young Entrepreneurs at Haas worked with high school students in Oakland to communicate that college, with a business major, was a real option for them.

We also took into active consideration whether an applicant was the first in her or his family to go to college or to pursue a degree beyond that. We considered whether an applicant had the means and the time (away from having to work a job, for instance) to study for the SAT and the GMAT. We put great stock in the letters written by supervisors of an applicant who had been in the workforce for a number of years. We gave attention to any experience in which an applicant had experienced discrimination because of her or his race. We gave no preference to children of donors, alumni, or politicians. In other words, we judged individuals on their own records.

Of course, an individual’s race is a very important part of who that individual is. Of course, none of us knows the bases for many decisions made about us throughout our careers and whether race played a part in them. Of course, the legacy of slavery and Jim Crow continues in our country. All of those factors help create the record that an individual presents of herself or himself, and we considered them. But we did not consider an applicant’s race, pure and simple. And we were rated among the very best schools in the country to recruit minority-race MBAs.

Affirmative action has unintended harmful consequences.

Using race in admissions allowed UC to short-circuit the much more difficult obligation of a public university to understand, and ameliorate, what caused minority-race students to lack opportunity at earlier stages in their education.

When I was a California state senator, before Proposition 209 was adopted, we had hearings on affirmative action at the University of California. A top official from the office of the University of California president testified that UC needed to take race into account in admissions. I asked where these applicants, who were given preference on the basis of race, would go if not UC. The official responded, “Harvard and Yale.”

By using race to get the numbers it wanted, prior to Proposition 209, California’s UC system was not addressing the needs of the vast majority of underrepresented minority students in our state. Rather, it was in a bidding war with the Ivy League schools. The unintended consequence of being allowed to use race is that the University of California considered its job done when it hit its number. That’s what happened before.

Another unintended consequence is the denigration of the excluded student.

When I was a freshman US congressman, I saw an actual letter written to a Californian who had applied to the Law School at Berkeley (then called Boalt Hall). The letter the Law School sent her had two blanks in it that were filled in by hand. The letter (I quote from memory) said: “You are number ________ on the _________ waiting-list.” The first blank was filled in with a number (12); the second was filled in with the word Asian.

Here was a resident of California, entitled by our constitution and every rule of decency not to be categorized by her race, being told her race put her in a different position for admission to the University of California than others. Horrible as any form of racial discrimination is, especially by government, the history of discrimination against Asians in California is particularly odious. Did the writer of that letter, presumably approved by the leadership of UC–Berkeley’s Law School, even know of the Chinese Exclusion Act, of the practice of denying Chinese Americans access to courts of general jurisdiction in San Francisco (because “they” had “their own” courts), or of the forced relocation and internment of Japanese American Californians during World War II? I take nothing away from the discrimination suffered by Latinx and Black Americans to point out that California should be particularly sensitive to issues of discrimination against Asians, given what California has done to Asians in our state’s history.

Another unintended consequence is that any permitted use of race perpetuates the salience of race in our society. Before Proposition 209, a high official of UC–Berkeley said the university had to use race because otherwise the campus would be “100 percent Asian.” The speaker was himself Asian. (This confession was quoted to me by the person to whom it was made; it is, therefore, hearsay. Nevertheless, I do not doubt for an instant that it was true.)

In another example, when I was a Stanford Law professor, I had a conversation at lunch one day with a highly respected colleague (now deceased). The name of a student came up, and he remarked, “Oh, yes, he’s one of the brightest Black students we have here.” Stanford Law gave preference on the basis of race, and this professor catalogued a student accordingly.

Another unintended consequence is that the excluded person, who was not able to claim membership in the race being preferred, is often not a member of the public at large but, rather, a member of another group that has often suffered discrimination. For that reason, the Anti-Defamation League of B’nai B’rith, in its amicus curiae brief in the 1978 Supreme Court Bakke opinion, argued against the UC–Davis Medical School affirmative action plan. B’nai B’rith pointed out that Jewish students comprised a much higher percentage of American medical school students than the Jewish population in society would indicate. So, to B’nai B’rith, it wasn’t a favor for Blacks at the expense of Whites; it was a cap on the number of seats open to Jewish students. The Sons of Italy made the same point in their amicus brief opposing affirmative action. (I do not know the positions of those two organizations today; I recite only what is recorded fact of what they said when affirmative action was first presented in Bakke.)

At the UC campuses, Asians are today’s analogue to those represented by B’nai B’rith and the Sons of Italy. Asians comprise 15.3 percent of Californians, yet are 35.6 percent of UC enrollees.

Allowing affirmative action at UC today means taking from Asians in order to give to Blacks and Latinos.

Some supporters of Proposition 16 argue that Asians and Whites have many advantages that California’s Blacks and Latinos do not. What a huge generalization! Maybe this Asian applicant is a first-generation American whose parents barely speak English. Maybe that Black student applicant is a child of professionals educated at the best universities. The right answer is an approach that takes into account every student’s own story. That story will, of course, be influenced by the student’s race, but it is the individual’s own experience that should matter, not a sweeping generalization that an Asian kept out of UC now will somehow be compensated for elsewhere in that student’s life. We should treat individuals as individuals.

Affirmative action is the same whether characterized as a quota, set-aside, preference, plus factor, or tiebreaker.

Before Michigan voters banned affirmative action back in 2006, the University of Michigan used race but only as a plus factor, the school claimed. The outcomes were as stark as under a quota. A study by the Center for Economic Opportunity released last month reported that, under affirmative action at the University of Michigan, Black applicants with otherwise similar qualifications were admitted over White applicants at a ratio of more than 70 to 1, Latinos at 46 to 1, and Whites over Asians at 1.46 to 1. Similar results were reported for the University of Virginia, the University of Wisconsin, and the UC campuses prior to passage of 209, which all practiced affirmative action.

The assertion that using race as a “plus factor” and using race as a determinative factor (as in a quota) are different was rejected by eight of the nine Supreme Court justices in the Bakke case of forty-two years past. Four of those justices said California violated Allan Bakke’s constitutional rights when it reserved sixteen of the one hundred entering spaces at the Medical School at UC Davis for Blacks, Latinos, and Native Americans, telling Bakke he was the wrong race to be considered for those spaces. It was wrong, they wrote, for the state of California to use his race against him. Two of those four justices were John Paul Stevens and Potter Stewart, whom no one could claim were right-wingers. Four other justices said California could set aside these sixteen slots, so long as its purpose was benign. Only one justice, Lewis Powell, said that the issue turned on whether California had a quota or just a preference. All the other justices saw no difference; as, indeed, there was no difference from the point of view of Bakke himself.

To those eight justices, quotas and “plus factors” were the same. The controlling opinion, however, said they were different; so, even though eight justices disagreed with him, Justice Powell’s view that there was a difference prevailed, and it has much currency in popular debate today. That is remarkable longevity for a logical sophistry, rejected by all but one of the Supreme Court justices when it was first proposed.

Doing away with affirmative action did not devastate numbers of minority students at University of California campuses.

Here are the enrollment rates, by race, the year before the UC system was ordered to stop considering race, and today. (The 1996 numbers are courtesy of “University of California Applicants, Admits and New Enrollees by Campus, Race/Ethnicity," prepared by Institutional Research, the University of California Office of the President.)

Blacks (3.7 percent then, 3.87 percent now)

Latinos (13.4 percent then, 25.45 percent now)

Asians (36.1 percent then, 35.61 percent now)

Whites (38.4 percent then, 19.30 percent now)

In other words, the rising percentage of Latinos graduating from California’s high schools has been matched by the rising percentage in their admission to UC, and the drop in Whites’ percentage of California’s high schools has registered in their drop in UC enrollments. The other races stayed about the same. These numbers do not call out for reparation.

Proposition 16 supporters draw attention to different statistics. The ratio of Blacks and Latinos in the population of California, they observe, is not replicated in each group’s enrollment at UC. Blacks comprise 6.5 percent of Californians yet only 3.87 percent of UC enrollees. Latinos are 38.1 percent of California residents but 25.45 percent of UC enrollees.

Even those discrepancies vanish, however, when we standardize basic requirements for admission. The Bakersfield Californian noted in this editorial opposing Proposition 16: “According to a 2020 California Legislative Analyst report, only 21 percent of African American high school students who graduated in 2018 were prepared for college or a career. This compared to 33 percent Latino graduates, 52 percent White graduates and 74 percent Asian graduates.”

So, do we attack the problem of lower performance in high schools located in Black and Latino neighborhoods? Or do we simply fix the final numbers of college admissions? Affirmative action does the latter; real commitment to helping people does the former.

The moral question remains.

I do not believe Californians would vote in favor of Proposition 16 if the question were asked this simply: “Shall California be allowed to keep some Californians out of public universities because of their race?” Yet that is precisely what Proposition 16 would permit.

Repealing Proposition 209 will likely increase the number of Blacks, Latinos, and Native Americans admitted to UC–Berkeley and UCLA. That alone is enough for some supporters of Proposition 16. They might dispute the harm done by affirmative action’s reinforcing the use of race in our society; they may argue all the unintended consequences are trivial; they may say there is no other way to achieve this goal.

Let’s stipulate for a moment that they are right in all these points. Still, the moral question remains. You have an applicant physically sitting before you, and you can admit her or not to UC. You know that if her race were different you would admit her. Can you find it in your conscience to keep her out of her state’s university, just because of her race.

This is not an original dilemma. It is to ask whether one can do good in general by embracing wrong in the particular case. If you answer yes, then be prepared to respond to all the sophistries of history used to justify specific immoral behaviors for the sake of a more general, greater good.

We know the answer.


Tom Campbell is the Doy and Dee Henley Distinguished Professor of Jurisprudence at the Fowler School of Law and a professor of economics at the Argyros School of Business and Economics at Chapman University. He was also a tenured Stanford Law professor, dean of the Haas School of Business at UC–Berkeley, dean of the Fowler School of Law at Chapman University, a US congressman for five terms, a California state senator for two years, finance director of California, and a Supreme Court law clerk the year Bakke was decided. Campbell holds a PhD in economics from the University of Chicago, where Milton Friedman was his faculty adviser. He holds a JD, magna cum laude, from Harvard, where he was an editor of the Harvard Law Review.

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