Elites to Anti-Affirmative-Action Voters: Drop Dead

The University of California has spent a decade wiggling around Proposition 209

In 1996, Californians voted to ban race and gender preferences in government and education. Ten years later, the chancellor of the state-funded University of California at Berkeley, Robert Birgeneau, announced a new Vice Chancellorship for Equity and Inclusion, charged with making Berkeley more "inclusive" and "less hostile" to "underrepresented minority . . . groups." This move is just the latest expression of the University of California's unrelenting resistance to the 1996 voter initiative, in every way possible short of patent violation. Stasi apparatchiks disappeared more meekly after the Soviet Empire's collapse than California's race commissars have retreated after voters tried to oust their preference regime.

The last decade in California shows the power, and the limitations, of the crusade for a colorblind America led by Ward Connerly, architect of the 1996 anti-preference initiative. Without a doubt, Proposition 209, as that measure is called, has cut the use of race quotas in the Golden State's government. But it has also exposed the contempt of the elites, above all in education, for the popular will. "Diversity"-meaning socially engineered racial proportionality-is now the only official ideology of the education behemoth, and California shows what happens when that ideology comes into conflict with the law.

When Prop. 209 passed, a few politicians, such as San Francisco mayor Willie Brown, loudly vowed to disobey it. Most public officials, though, were more circumspect. Doubtless they counted on a highly publicized lawsuit, filed the day after the election, to eviscerate the new constitutional amendment before it affected their operations. A coalition of ethnic advocacy groups and big labor, represented gratis by some of the state's top law firms, had sued to block the amendment from taking effect. The plaintiffs argued, remarkably, that requiring government to treat everyone equally violated the Equal Protection clause of the Fourteenth Amendment.

The plaintiffs could not have found a more sympathetic audience than Judge Thelton Henderson, one of the federal bench's most liberal activists. He quickly issued an injunction against Prop. 209, on the grounds that American society is so racist and sexist that only special preferences for minorities and women could ensure their constitutional right to equal protection.

Henderson's 1996 ruling was the high point of the preference racket's reception in the courts. The Ninth Circuit Court of Appeals reversed Henderson the next year, declaring that Prop. 209's ban on discrimination and preferential treatment was fully compatible with the Equal Protection clause-a point evidently not obvious to the crSme of the state's lawyers.

From then on, both state and federal judges would show an admirable respect both for voter intent and for the plain meaning of the state's new constitutional amendment. Not so California's bureaucrats and pols. Many chose passive resistance or tried to hide noncompliance under Orwellian name changes: San Jose's affirmative-action bureaucracy rechristened itself the "Office of Equality Assurance," for instance.

Without the efforts of a small public interest law firm, some of the state's largest government employers would still be using racial preferences for hiring and would be requiring contractors to do the same. The Pacific Legal Foundation has had to drag into court the city and county of San Francisco, the Sacramento municipal utility district, the state lottery commission, the state bond commission, and the California community college system, among others, to vindicate the people's will. The Los Angeles and Berkeley school districts continue to assign students and teachers by race, even though the foundation has won suits challenging the practice in other school districts.

California's then-attorney general, Bill Lockyer, filed an amicus brief supporting San Jose's continuing preferential-outreach requirements for contractors. As for enforcing the state constitution against violators of 209, Lockyer could not be bothered. Members of the state legislature have also busily tried to thwart the voters' fiat, often under pressure from Latino advocates. In a particularly desperate move, the state assembly in 2003 adopted a definition of discrimination put forward by the 1969 UN International Convention on the Elimination of All Forms of Racial Discrimination, whose terms would have restored racial preferences in contracting. California courts saw through this ruse and overruled it in 2004.

Ward Connerly estimates that by now, 65 to 75 percent of California's agencies no longer use race in hiring or contracting-hardly resounding compliance but a huge improvement over the pre-209 era. A pro-preference organization, the Discrimination Research Center, claimed in 2004 that transportation-construction contracts awarded to minority-owned business had dropped 50 percent since 1996 and that the percentage of women in the construction trades had declined by one-third. These figures suggest the extent to which race and gender discrimination had been keeping many noncompetitive enterprises afloat.

California's university system is a different matter entirely. That diehard center of race and gender obsession has managed to stay out of court (except for one sweetheart suit brought by pro-preference advocates) through fiendishly clever compliance with the letter of the law, while riding roughshod over its spirit. In doing so, university officials have revealed a fatalism about the low academic achievement of blacks and Hispanics that they would decry as rankest bigotry in a 1950s southerner.

After Prop. 209's passage, UC Berkeley, like the rest of the UC system, "went through a depression figuring out what to do," says Robert Laird, Berkeley's pro-preferences admissions director from 1993 to 1999. The system's despair was understandable. It had relied on wildly unequal double standards to achieve its smattering of "underrepresented minorities," especially at Berkeley and UCLA, the most competitive campuses. The median SAT score of blacks and Hispanics in Berkeley's liberal arts programs was 250 points lower (on a 1,600-point scale) than that of whites and Asians. This test-score gap was hard to miss in the classroom. Renowned Berkeley philosophy professor John Searle, who judges affirmative action "a disaster," recounts that "they admitted people who could barely read."

The downward trajectory of those students was inevitable, Searle says. "You'd be delighted to find that your introductory philosophy class looked like the United Nations, but that salt-and-pepper effect was lost after six to eight weeks," he recalls. "There was a huge dropout rate of affirmative-action admits in my classes by mid-terms. No one had taught them the need to go to class. So we started introducing BS majors, in an effort to make the university ready for them, rather than making them ready for the university." Searle recalls a black studies class before his that was "as segregated as Mississippi in the 1950s." One day, Searle recounts, the professor had written on the blackboard that a particular tribe in Africa "wore colorful clothing."

Even though preference beneficiaries often chose the easiest majors-there were, and still are, virtually no blacks and Hispanics in the most competitive engineering and computer science majors, for example-graduation rates also reflected the qualifications gap. The average six-year graduation rate for blacks and "Chicanos" (California-speak for Mexican-Americans) admitted from 1991 to 1997, the last year of preferences, was about 20 percent below that of whites and Asians. The university always put on a happy face when publicly discussing the fate of its "diversity" admits. Internally, however, even the true believers couldn't ignore the problems. A psychology professor at UC San Diego recalls that "every meeting of the faculty senate's student affirmative-action committee was a lugubrious affair. They'd look at graduation rates, grades, and other indicators and say, `What we're doing is failing.' "

Yet for the preference lobby, a failing diversity student is better than no diversity student-because the game is not about the students but about the self-image of the institution that so beneficently extends its largesse to them. Thus, when "underrepresented minorities" accepted at Berkeley dropped by half in 1998, the first year that Prop. 209 went into effect, and by nearly that much at UCLA, the university sprang into crisis mode. Never mind that the drops at other campuses were much smaller. Berkeley's then-chancellor, Robert Berdahl, came to Berkeley's Boalt Law School, recalls a law professor, and demanded that the faculty increase its shrunken minority admissions. When another professor asked how Boalt was supposed to do that consistent with 209, Berdahl responded testily that he didn't care how they did it, but do it they must. UCLA law professor Richard Sander was on a committee to discuss what could be done after 209. "The tone among many of the faculty and administrators present was not `How do we comply with the law in good faith?' but `What is the likelihood of getting caught if we do not comply?' " he says. "Some faculty observed that admissions decisions in many graduate departments rested on so many subjective criteria that it would be easy to make the continued consideration of race invisible to outsiders."

Like Proteus caught in a net, the University of California struggled furiously over the next decade to rework its admissions formulae, trying to re-create its former "diversity" profile without explicitly using race. If, in 1967, an Arkansas fire department had devised pretextual, ostensibly nonracial, job qualifications to foil a desegregation order, it would have been judged in violation of the Constitution. But legal elites will never object to such pretextual surrogates for race in order to engineer a certain level of representation for "underrepresented minorities."

The university's attitude was as damaging as its actions. How to explain the significant drop-off in black and Hispanic applications to UC's most elite campuses after Prop. 209 passed? The then-dean of Boalt Law School, Herma Hill Kay, gave PBS's NewsHour the pro-preference answer: "I think that there was a feeling that California in general had turned its back on minority applicants. People felt that they didn't have to come here if they weren't welcome here." Another explanation, of course, might be that minority students, well aware of how much they had previously benefited from preferences, realized that without those preferences they stood little chance of getting in to the most selective campuses.

UC could have responded to the charge of being "unwelcoming" with a resounding rebuttal: "We welcome students of all races and ethnicities. Every student will be judged according to his accomplishments, and anyone who meets our standard-equally high for all-will win admission. UC has never discriminated and never will." Instead, UC continued throwing its weight behind the argument that the only way to "welcome" minority students is to make sure that they get in whether or not they match the academic qualifications of white and Asian students.

University spokesmen constantly convey the idea that 209 is forcing them to do something unjust. "It's a hard message to send-persuading kids that they have a place at the university, when we deny so many qualified students," says administrator Nina Robinson. (Robinson masterfully blends the "unwelcoming" topos with the university's current line that students who would only be admitted under affirmative action are all "highly qualified.") But the University of California rejects many white and Asian applicants with credentials identical to those "qualified" underrepresented minorities, and no one accuses UC of being unwelcoming to rejected Asian students with combined SAT scores of 800 and 2.85 GPAs, say. If proportionally far fewer black and Hispanic students qualify for admissions than whites and Asians, the problem lies with the systemic academic weakness of those students, not with the admissions standards. But this is a truth that, post-209, the university has persistently denied.

Only in 1998 did the university's admissions processes operate without either explicit racial preferences or stealthy surrogates for race. The results were telling: at Berkeley, the median SAT gap shrunk nearly in half, to 120 points; black and Hispanic admits logged an impressive 1,280 on their combined SATs. The six-year graduation rates of this class would increase 6.5 percent for blacks and 4.9 percent for Hispanics, compared with the class admitted two years earlier.

The more pedagogically and socially sound environment that resulted didn't matter to the race-mongers, however, who flung themselves into their long experimentation with different admissions schemes, with one purpose: "To maintain a racially and ethnically diverse student body," as former UC associate president Patrick Hayashi wrote in 2005. The first scheme that the university tried was to give an admissions preference to low-income students. This device backfired, however, when it yielded a lot of Eastern European and Vietnamese admits-not the kind of "diversity" that the university had in mind. So the campuses cut their new socioeconomic preferences in half and went back to the drawing board.

Various components in the system began diluting their academic requirements. Boalt Law School reduced the role of the Law School Admissions Test (LSAT) and college grade-point average (GPA) in ranking students, and it lowered the LSAT cutoff score that would disqualify a student for consideration-measures that previously it had applied only to minorities but would now technically apply to all students. It also removed the quality adjuster for high school GPAs, so that a 3.8 from a school where half the students drop out before graduating counted as much as a 3.8 from a school where the student body is frantically competing to rack up academic honors.

Other schools created pretextual institutions in the hope that they would be minority magnets. UCLA's law school established a specialization in critical race studies, a marginal branch of legal theory contending that racism pervades nearly every category of the law and that writing about one's personal experiences grappling with that racism is real legal scholarship. College seniors who say that they want to specialize in critical race studies on their UCLA law school applications get a boost in the admissions process: as the school discreetly puts it, a student's interest in the program "may be a factor relevant to the overall admissions calculus." In 2002, UCLA rejected all white applicants to the program, even though their average LSAT score was higher than the average score of the blacks who were admitted.

The university as a whole started admitting all students in the top 4 percent of their high school class, regardless of their standardized test scores, hoping that this would net more kids from all-minority schools. The public justification for this practice, which Texas and Florida have also implemented in response to affirmative-action bans, is that getting to the top of one's class signals the same academic talents regardless of whether your school awards As just for showing up. But a 2005 college board study found that 30 percent of the African-American and Hispanic students with an A average have mediocre SAT verbal scores of 500 or lower. Indeed, while only half of the blacks and Hispanics who rank in the top tenth of their class also score over 600 on either section of the SAT, all the whites in the top 10 percent do. And contrary to the claims of affirmative-action proponents, the evidence is irrefutable that students with 900 combined SATs, say, are far less likely to do well in competitive colleges than students with test scores several standard deviations above that. In addition, UC also started giving preferences to students who had attended university-sponsored tutoring programs, which, while technically open to students of all races, target underrepresented minorities.

None of these new admissions measures produced the numbers of "underrepresented minorities" at Berkeley and UCLA that the diversity ideologues and the ethnic lobbies in the state legislature demanded, however. The legislature's Latino caucus told the university that more of "their people" at Berkeley and UCLA was the price of budgetary support. Clearly, the university remained too wedded to its old, meritocratic ways to achieve the "critical mass" of minorities that diversity advocates claim is necessary for a sound education. So the university began to "question all criteria, including criteria that have long been regarded as reflecting high academic achievement," in the words of former associate president Hayashi. Incredibly, it began to ignore entirely its applicants' objective academic rankings.

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Disenfranchised: The Buzz in Education Reform

The word that most aptly describes the momentum behind education reform going into 2007 is disenfranchised. This can be applied to students in grades P all the way to 16. It can also be applied to adults who want to go back to school, who never completed school, or who are learning English as a second language. It can be used to describe those who find themselves on the wrong side of the law. This word can be mixed and matched with pretty much any type of person that is deserving of more opportunity; and who isn't?

To be sure, the word disenfranchised will inevitably be used to call for more education funding, to fight for more equitable education and to appeal for universal education. Disenfranchised is the sort of descriptor that can be mixed and matched by any education reformer for any type of reform because it appeals to the conscience; it begs the decent person to look out for those amongst us who might need a little action on their behalf. "It is the right thing to do." But be forewarned; those whose heartstrings are being pushed and pulled in every direction must try and be discerning about the various offerings and work through the maze of rhetoric so that the disenfranchised are truly helped by our efforts. Like it or not, sometimes the solutions can become part of the problem.

The effort behind universal pre-school stems from the notion that some children are better prepared for Kindergarten than others. For a multitude of reasons, underprivileged children are not accumulating as much practice playing with the English language and they are not exposed to the types of concrete experiences which lay the foundation for learning abstract mathematical concepts. In my own observations with "disenfranchised" children, I've discovered that they are lacking at a much more basic level.

Some are not used to interactions where they are expected to listen, and conversely, they don't expect others to hear them. Accustomed to this deficit, and having their needs met by Power Rangers and X-Men, they tune out people and events and succumb to the symptoms of having insufficient relationships with caring responsible adults, these being stunted curiosity about the world and lack of civility. This type of child most definitely benefits from a preschool that offers opportunities for exploration and language development. But this child profits more from the consistency offered from caring adults who teach them social skills and provide them with the most basic of needs. Conversely, children growing up in homes rich in one-on-one interaction with one or two parents with the time and resources to devote to raising a child will not benefit more from the experience of preschool where a teacher's time is divided between 18 needy children. Children, whose needs can be met at home, gain much more tumbling and swimming at the local park district than if placed in universal pre-school.

Children are disenfranchised when expectations are lowered for their potential. Whether or not a child is labeled ADD, EL, LD, Gifted, or anything else, really doesn't matter if in any given situation the child isn't pushed to his or her maximum ability. When a label is used as an excuse for not meeting needs, this is when the solution has become the problem. If mainstreaming prevents some students from making optimum academic gains, the solution has become the problem. The bottom line is that while everyone is not equal, everyone should be given equal opportunity. This might not always look the same in every given situation. In sports, one child might be learning to sink or swim while another is practicing Butterfly. While the two students would not be expected to be treated the same way, this isn't the case in academics. Some serious rethinking must take place in our elementary and middle schools. In these circumstances, it must be, "one "hellava reality check" to suddenly find one self competing and placed in leveled classes upon reaching high school in this day and age. How about when it comes to looking for a job?

It used to be that everything important could be learned by the end of 8th grade. Now, colleges are finding many students cannot read or write at an 8th grade level. How is it that some students are accepted into college when they haven't met the requirements of the preceding grades? Community colleges are expected to remediate students who are not prepared for college level courses yet at the same time are awarding more and more course credits to record numbers of students who are testing out of classes because of prior AP or IB programs. How can that be? Is it because everyone is not equal but everyone should be given equal opportunity?

I used to joke that I went to college on an 8th grade education because I did the absolute minimum to get by in high school, much more concerned with socializing and rebelling than in my future. But I also tested at the 11th grade level in many areas when I was still a preteen. This is because students were grouped and challenged according to their ability in the elementary and middle grades. Perhaps I was disenfranchised in high school, for whatever the reason. One of 125 students per teacher, maybe I needed larger amounts of attention which I couldn't receive under those circumstances.

Smaller class sizes and a smaller school might have made all the difference in the world, or not. On the other hand, would I have been better off in single sex classes, where I wasn't so concerned with boys? This is not a universal rule applicable for everyone. Some students thrive amongst large numbers of people and unimaginable opportunities. This is why there should be choice in education. One size does not apply to all. One universal rule does not always benefit everyone. Beware of equalizing instead of equal opportunity. This has the effect of disenfranchising some groups while ensuring rule of the majority or minority.

Colleges should be kept affordable but not if those who can afford to supplement the cost of an education are given the responsibility of this burden. As long as there are student grants and loans and scholarships to offset tuition costs, colleges will not have the incentive to streamline their offerings and keep costs down. If colleges are not held accountable for the relevancy of their course offerings, for the quality of their teaching, and for the success of their graduates, they will not have to be held to the same standards as other businesses that must satisfy a customer base. When the government has to supplement or bail out a business, in the long run it isn't doing the economy any favors. What disenfranchises students is graduating with no appreciable skills and with a lot of debt.

Disenfranchised is a very powerful word. It can be used to further equalize everyone or it can be used to provide everyone with equal opportunity. Be careful when deciding which educational reforms to get behind in 2007.

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For greatest efficiency, lowest cost and maximum choice, ALL schools should be privately owned and run -- with government-paid vouchers for the poor and minimal regulation.

The NEA and similar unions worldwide believe that children should be thoroughly indoctrinated with Green/Left, feminist/homosexual ideology but the "3 R's" are something that kids should just be allowed to "discover"

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