California Proposition 209

July 8, 1998:
President Clinton discusses the state of race relations in a NewsHour special.

April 1, 1998:
A report on the minority admissions in Berkeley.

Aug. 18, 1997:
U.C. Berkeley opens its doors to 270 new law school students this year. Only one of them is African American.

May 20, 1997:
A report on the impact of a federal court decision on affirmative action programs at the University of Texas.

Jan. 10, 1997:
Deval Patrick discusses affirmative actions, California's Proposition 209, fair lending, and race relations in America.

Dec. 13 ,1996:
An update on California's Proposition 209, the constitutional amendment that would end the state's affirmative action programs.

Browse the NewsHour's coverage of Education and Race Relations.


Proposition 209 Californians Against Discrimination and Preferences

SPENCER MICHELS: Within an hour's drive of each

other, three prestigious San Francisco Bay area law schools are coping with the problems of achieving diversity in their student bodies. Stanford University, here in Silicon Valley; Hastings Law School in San Francisco; and Boalt Hall at the University of California at Berkeley all have similar goals, but differing approaches.

Coping with Prop 209.

PETE WILSON: Are we going to treat Californians equally and fairly, or are we going to continue to divide Californians by race?

SPENCER MICHELS: Former Governor Pete Wilson made diversity an issue in 1995, when he and businessman Ward Connerly urged their fellow regents of the University of California to ban affirmative action. After contentious debate, the regents ended the use of race, gender, or ethnicity in university admissions. Then a year later, California voters, after a bitter campaign, enacted Proposition 209, that eliminated racial preferences in public education, employment, and contracting. Under this double mandate, state universities had to change admission policies that had given an edge to minorities. In the first year of the new policy, starting in 1997, U.C.'s Boalt Law School reported that just one African-American, a deferred admission, was in the entering class of 271 students. Fourteen blacks had been admitted, but none had chosen to attend Berkeley. For law school dean Herma Hill Kay, the political climate made her task difficult.

HERMA HILL KAY: 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. And one of the things that we tried very hard to do was to turn that perception-- which we thought was wrong-- around, and make clear that we do welcome minority applicants, and we want people to come here.

SPENCER MICHELS: The dean appointed Professor Robert Cole to head a task force on changing the admissions policy, with the goal of obtaining a diverse student body without violating the new rules.

PROFESSOR ROBERT COLE: You cannot have a first-class law school in this country without racial and ethnic diversity. It's just absolutely essential, both, because it improves the quality of the education, and because people are going to go out and be in positions of leadership, they have to be educated through a more diverse student body.

HERMA HILL KAY: Professor Cole recommended, and the school adopted, an admissions policy emphasizing individual achievement and placing less value on undergraduate grades and law school admission test, or LSAT scores, regarded as barriers to some minority students. Boalt Law School also began sending recruiters to some less prestigious undergraduate colleges than before, without actually targeting any one race.

They talk to people, they tell them about the school. They also make contacts with the college counselors. We produced a video last year called "Welcome to Boalt Hall" that we sent to college counselors and we sent to students we admitted.

STUDENT: (on video) You should come to Boalt because something important is going on here.

SPENCER MICHELS: But Boalt's attempt at change didn't come fast enough for some students.

MICHAEL MURPHY, Student Association President: We were concerned with what we perceived to be hesitance on the part of the faculty and administration to really take some leaps.

SONYA ENCHIL, Students of African Descent: If I was the dean of this law school and this had come down, I would have not complied with the decision and allowed a plaintiff to sue, and this is what the law is about.

What is diversity?

SPENCER MICHELS: For others, like students in Boalt's Federalist Society, the school is going too far. Second-year student Dave Weiner is vice president.

DAVE WEINER: I think it's terrifying when you say diversity is based on skin color and not on viewpoint, and that one's skin color and viewpoint are one and the same. Yeah, of course we like to see people from more diverse backgrounds, of course. But the thing is, do we then discriminate against people from other backgrounds to achieve that goal? I don't think that's right. I think that's what Berkeley stood for in the 1960's. I think that's what we're trying to create, is a society where people aren't judged.

SPENCER MICHELS: Twenty-three-year-old Sylvia Barbosa, a native of Peru and the daughter of working-class parents, was admitted to this year's Boalt Hall class after three years at a junior college and 18 months as an undergrad at Berkeley. Before she decided to attend, she was wooed by student clubs and alumni, and she was awarded a new race-based scholarship. The scholarship money was put up by an upscale San Francisco law firm, working with the local bar association. The grants, totaling $400,000, targeting minority students, are legal, since the firms are private and not covered by Prop. 209. The efforts on all fronts appear to be paying off. When school opened last August, nine African-Americans joined the new class, although one of them is no longer enrolled. That's 3 percent. And 23 Latinos are attending, compared to 14 last year, for a total minority enrollment of 11 percent. Berkeley's admission policies, and its use of essays as part of the application, were greeted with some skepticism by Ward Connerly, the regent who championed ending affirmative action.

WARD CONNERLY: If the result has been obtained through a genuine adherence to the policies of the Board of Regents and the dictate of the California Constitution, as reflected by Proposition 209, then they've done a good thing. If they've cheated in any way-- and we really don't know, and I will assume that they have not-- if they have cheated in any way by looking at those essays and finding code words for black and Latino, then we are basically in the same place we were before the regents took this up.

SPENCER MICHELS: Connerly's concern is that admissions be based strictly on merit.

WARD CONNERLY: Diversity is clearly desirable, I think. But it should not be the objective, because once it becomes the objective, then you start trying to influence the outcome, and I think that's wrong.

Opportunities for the disadvantaged.

SPENCER MICHELS: At Hastings Law School in San Francisco, the outcome is prescribed by a policy adopted nearly 30 years ago. About 20 percent of places in each class are reserved for students whose education, economic status, social experience, or physical disability puts them at a disadvantage. Hastings is a University of California affiliate with its own governing board, and therefore not subject to the regents' rules. Dean Mary Kay Kane is implementing a policy that began in 1969.

MARY KAY KANE: We thought it was still very important to provide opportunities for disadvantaged individuals, of whom many would be minorities, but some would not be minorities. And so we revamped our program and set up something which we call LEOP, which is our special admissions and academic support program.

SPENCER MICHELS: LEOP stands for "Legal Education Opportunity Program," and Hastings says it is not race-based, and therefore doesn't violate Prop. 209.

MARY KAY KANE: So we have dodged a bullet to the extent that we didn't have to scramble, we didn't have to change what we were doing; we could sort of continue our efforts.

SPENCER MICHELS: Besides allowing Hastings to admit students who have overcome hardship, the LEOP program supports them once they have been admitted.

AKILI NICKSON, Hastings student: If you want help from your peers, if you want extra practice exams, you can go to LEOP and ask for the help, and it's there. And it's not just for blacks or women. You can be a white Anglo-Saxon Protestant and still come to LEOP and ask for help. And you can still be in a program. That's one thing I like about LEOP, is it's not a race-based program.

PAUL CORSCA, Hastings student: When I first came into law school, you don't know the experience you're about to have. And this causes a lot of stress, and it also can be emotionally draining and kind of counterproductive. So I went through the orientation recently, and it gave me tools and plans, and an idea of what I'm going to experience.

DIVYA BHARADWAJA: It has helped me to learn how to act in law school; it's a drama here, and it has given me the --basically given me my script.

Affirmative-action admissions?

SPENCER MICHELS: Over the past three years, between 10 and 15 percent of the Hastings student body has been made up of African-Americans and Latinos, with the numbers dropping a little after the passage of Prop. 209. At the Stanford Law school, 17 African-Americans and 25 Latinos are part of this year's class. That's 24 percent of the 180 students enrolled, a figure that has gone up slightly over the last three years. This university is private, and not subject to Prop. 209 or the California regents. Stanford seeks diversity of various sorts in its admissions process, according to law school dean Paul Brest.

SPENCER MICHELS: But race is one of the factors?

PAUL BREST: Race is absolutely one of the factors.

SPENCER MICHELS: So if you had a class that didn't have African-Americans in it, or Chicanos, this would be upsetting, right?

PAUL BREST: We would think that we could not give the student body as a whole the kind of professional education we do if we didn't have members of those minority groups.

SPENCER MICHELS: As one of the nation's top- rated law schools, Stanford attracts applications from many highly qualified minorities, increasing the chances for a diverse class. The applicants are judged not just on their scores, but on their life experience. Janice Strong is a 39-year-old single mother and a third-year law student.

JANICE STRONG, Stanford Law School: I didn't start college until I was 34. Before that, I was raising kids. I was a business owner, so I by no means was destitute, but I decided to quit everything that I had. I went to community college.

SPENCER MICHELS: She transferred to Stanford undergrad, and then applied to law school without high test scores.

JANICE STRONG: They still took me because of my life history and who I am, because affirmative action isn't just color, it's a life story, it's a life history; because my grades are good, I'm in good standing, and I'm living proof that the merit argument means nothing.

SPENCER MICHELS: Stanford's policies are outside the purview of the state and of regent Ward Connerly. Nevertheless, Connerly says considering race in admissions anytime is unfair.

WARD CONNERLY: The reverse of saying, "we want more blacks and Latinos," is saying, "we want less Asians and whites." That's the reality. It is a zero-sum game. If they want to discriminate-- and that's essentially what we're taking about; we can call it "diversity building," or whatever we want to call it-- if they choose to discriminate, that is their business. I wish they wouldn't, and if they're using government money, we should slap them and take the money away if they in fact are doing that.

SPENCER MICHELS: Stanford officials do worry that the Supreme Court could in fact ban affirmative action in schools that receive federal grants. So far, that has not happened. The deans of Stanford, Hastings, and Boalt Hall law schools say their efforts to attract minorities will continue, and California's new Democratic governor also is pushing to ensure diversity at state colleges and universities.