PASADENA - While it may have changed face since the affirmative action debates of the 1990s, the battle for diversity in California's higher education system has intensified in recent years, taking on new urgency as the state struggles to get ahead of its deep fiscal maladies.
Since voters approved a constitutional amendment prohibiting the state from considering race, sex or ethnicity 15 years ago, critics say minority enrollment at the California's public universities has plummeted - even as the number of minority high school graduates rises.

On Friday, Gov. Jerry Brown heartened affirmative action supporters when he filed a brief arguing that ban - Proposition 209 - is unconstitutional when it prohibits race-conscious admissions programs.

Those supporters are hoping that dual victories in California and Michigan - where the 6th Circuit Court of Appeals last week struck down that state's own version of Proposition 209 with regard to university admissions - will reopen the door to thousands of students they say have been shut out.

"By banning constitutionally permissible admissions programs, Proposition 209 violates the political-structure doctrine because it imposes unique political burdens on minorities," Brown wrote, echoing activists' contentions.

Some say Prop. 209 ultimately made for bad law.

"Anybody who wants a special program for any group - poor kids, rural kids, kids with learning disabilities, veterans - can go to the (University of California) regents and say, `we think you ought to give special consideration to this kind of background," explained George Washington, an attorney with the Coalition to Defend Affirmative Action, Integration & Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN), which is sponsoring both challenges to Prop. 209 and a similar provision in Michigan.

Minorities find themselves in a different situation, Washington said.

"And the only group that cannot do that
Ed Hernandez
are Latino and black students because of Proposition 209," he said, explaining that those students would need a statewide referendum to approve a special program.

Prop. 209 `a throwback'

Prop. 209 may be a throwback to the separate-but-equal era of history that followed the Civil War, he said.
"We think creating a separate and unequal process for Latino and black students to seek change is the definition of a Jim Crow law."

Washington said he thinks there could be a decision in six months to a year. If a federal court agrees with Brown, Prop. 209 will be overturned without the need for a referendum.

In the meantime, state Sen. Ed Hernandez, D-West Covina, has been quietly pushing a bill that would allow UCs and CSUs to consider race, gender and economic background, among other factors, in admissions decisions.

The bill passed the Assembly's higher education committee Wednesday; last year, a similar bill made it through both houses before getting vetoed by then-Gov. Arnold Schwarzenegger.
Both Hernandez's bill and the BAMN case against California are based on two key cases decided by the Supreme Court in 2003.

In Grutter v. Bollinger, the Court ruled the Equal Protection Clause does not prohibit a narrowly tailored consideration of race in admissions decisions at a Michigan law school.

Writing for the majority, Justice Sandra Day O'Connor reasoned that the Constitution did not prohibit a school's use of race as a consideration "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

Solid legal ground

While the issue is highly divisive and many details remain unparsed, USC law professor Daria Roithmayr said that the legality of using race as a consideration in admissions is solid.

"It isn't exactly clear in terms of what the high court ruled with regard to how you could use race as a factor in admission ... but it's pretty clear that you can use race," Roithmayr said.

"There are some general things you can say: it can't be the only factor - it should be one of many; you can't use quotas, you can't use point systems where you assign points for being member of an underrepresented minority.

"It's a hot topic but it's not an open question ... there are a lot of people who disagree ... but the Supreme Court has spoken on that question."

What is less clear, Roithmayr said, is how the challenge Hernandez's SB 185 proposes to Prop. 209 will play out.

"I don't think it is at all clear that this legislation is not in conflict with (Prop.) 209, particularly because it states that the intent of the Legislature is that the provision be implemented to the maximum extent possible under Grutter," she said.

Grutter's admission preferences, she explained, would directly conflict with Prop. 209, leaving a statute pitted against a constitutional amendment.

Hanging on language

The balance seems to hang in language that, following Grutter, permits race, gender and economic background to be used in admissions outreach programs "so long as no preference is given" - that is, no quotas - a distinction Roithmayr said won't likely protect it from legal challenges.

In Hernandez's camp, the idea seems to be to let the lawsuits come and view the measure as one step in a broader movement toward knocking out Prop. 209.

"We have legislative counsel opinions that say this would not violate Proposition 209," said Hernandez spokesman Pedro Salcedo.

"What we really did is thread the needle. It's a very narrow channel of legal language that could raise concerns. And people have raised questions ... but I think that's really up to the opponents of the bill."

For Hernandez, the issue is elimination of an obdurate barrier to diversity and economic health and a matter that hits close to home.

"I am a product of affirmative action," he said. "I think what kind of drove me to move this legislation - to look at this issue, but more so at the issue of Prop. 209 - is just kind of my personal story and how it reflects workforce (development) in healthcare."

"If you look at cities in the San Gabriel Valley - Baldwin Park, La Puente, Azusa, El Monte, East L.A. - these are predominantly communities of color - and they have the highest incidences of chronic diseases but the fewest number of doctors that go there and even fewer who take Medi-Cal."

Hernandez said he made a conscious decision to return home to his own predominantly Latino community and set up shop as an optometrist.

"Who better and who else goes back to those communities if it isn't individuals from those communities ... young African Americans and Latinos?" he said. "That's what drove me to look at this in a much different perspective."

Suits, opposition certain

California's movement away from affirmative action can generally be traced to Ward Connerly, the activist and former UC regent who backed Prop. 209 and is currently squared off against BAMN in the Court of Appeals.

William Tierney, director of USC's Center for Higher Education Policy Analysis, said he expects lawsuits and vigorous opposition - but is concerned with bigger problems.

"My larger concern is that the state needs more people participating in higher education. These are the people who need to participate - and what we're lacking from the governor is any sense of direction in terms of public policy for managing higher education in this state."

That Latinos and blacks are underrepresented in the UC system is not open for debate, Tierney said.
"We also know as a state that we need more individuals participating in higher education ... and, the state is broke. So for any new initiatives, you need to question where the money would come from."

Tierney said he could see a few options for implementing a Grutter-style policy - including systemic outreach efforts to historically low college-going groups in schools, or rethinking the admissions process and broaden the scope of factors looked at - without making them determinative.

But the legislation comes on the heels of significant cutbacks in the public sector, he said.

"I really think for this state economy to get where it needs to go in next 10-15 years, we need more people participating in higher education," he said. "If that's the case, it's going to come from underrepresented groups. But there is no clear strategy from the governor on how to do that."