AP Photo/Susan Walsh

AP Photo/Susan Walsh

Another Supreme Court case with California implications

California was prominently featured in the U.S. Supreme Court's recently ended because of the Proposition 8 Perry v. Hollingsworth same-sex marriage case. But there was another case in which California was a key player: Fisher v. University of Texas at Austin.

In that case, the court considered the university's program of using race as one of many factors when reviewing admission applicants. The court did not rule that the university's practice was unconstitutional. The court did not rule that the university could never take race into account, only that the lower court should have evaluated the affirmative action program differently.

How should the lower court have evaluated the race-weighted program? According to the Supreme Court's ruling, the university should have shown that “no workable race-neutral alternatives would produce the educational benefits of diversity.”

To take race into consideration, the school has to prove that there are zero alternatives. This is where California comes in. In the Golden State, colleges are prohibited from using race as a factor in admissions thanks to a voter-backed initiative passed in 1996. This makes our schools experts on “race-neutral alternatives” because that is all they are allowed to use.

In the Fisher case, the president and chancellors of the University of California system submitted a brief that said, “Student body diversity cannot be fully realized at selective institutions without taking race into account.” According to the document, in 1995 (right before the university removed race from consideration) UC Berkeley's student body consisted of 7.3 percent black students; by 2012, that number was down to 3.5 percent. Hispanic representation has remained at 18 percent even though the population of Latinos in California has grown from 30 percent to 41 percent since 1995.

The system has tried all sorts of race-neutral initiatives to stop the loss and plateau of black and Hispanic students. Automatic admission for the top performers at all state high schools, decreased reliance on standardized tests, and spending “tens of millions of dollars to expand programs that improve college preparation levels for educationally disadvantaged students” have resulted in high enrollment of students who are the first in their family to graduate college, but not racial diversity.

In the Fisher case, the University of Texas now has to prove to the lower court that “no workable race-neutral alternatives” exist to achieve diversity, and in doing so will be scrutinizing California's experience. How much diversity is enough? Is there an option that our schools haven't tried? What is the role of Asian students in calculating minority enrollment and diversity? A 2011 study showed that 30 percent of UC freshmen in 2010 were Asian.

The Supreme Court ruled in the Prop. 8 case that the California attorney general and governor have the power to decide which voter initiatives they want to enforce and defend. If the Fisher case exposes California's failures with race-neutral policies, will Attorney General Kamala Harris and Gov. Jerry Brown stand by California's 1996 anti-affirmative action law?

Stay tuned for the mess in Texas.


For five years I've written a weekly column in this paper, and it's been an honor and an adventure to write about two of my favorite things: politics and San Francisco. In that time, there have been many changes in my life. Recently those new responsibilities and opportunities have made it increasingly difficult to continue with a weekly deadline.

So for at least the foreseeable future, I will not be submitting articles on a regular basis. But when the subject and timing are right, you will see me again (and already have more pieces in the works).

I want to take this opportunity to thank my readers, whose fan mail and comments have carried me through many rotten days and made the good days even better. Even the people who disagree with my articles have usually taken the time to read them, and I'm grateful for that.

Until my next article, thank you again.

Melissa Griffin's column runs each week. She also appears Mondays in “Mornings with Melissa” at 6:45 a.m. on KPIX (Ch. 5). Email her at mgriffin@sfexaminer.com.

Bay Area NewsMelissa GriffinProp 8Same-sex marriageU.S. Supreme Court

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