Proposition 209 and the Hidden Diversity Ecosystem: The Aftermath of California’s Affirmative Action Ban

Following the Supreme Court’s decision in Students for Fair Admissions declaring the consideration of race in university admissions unconstitutional, institutions of higher education across the country are looking to the University of California (UC) for guidance on how to proceed. A quarter of a century after becoming the first state to ban affirmative action, California has once again taken center stage in the affirmative action debate. Advocates on both sides of Students for Fair Admissions have pointed to California and how its public universities have fared since Proposition 209 passed. The party challenging affirmative action has emphasized that California’s elite public universities recently admitted their “most diverse class ever” despite the State’s ban on racial preferences, while parties defending affirmative action have presented California as evidence that no workable alternative to race-conscious admissions exists. As the country looks to California for guidance, it is more important than ever to understand what Proposition 209 prohibits, what effect it has had on student body diversity in the UC system, and how the UC and others have responded.

This Note first advances a comprehensive review of Proposition 209 case law, clarifying what the ban prohibits. Second, it tells the story of how the UC responded to the ban and has continuously adapted its strategy to pursue racial diversity. Lastly, this Note asserts that the ban on race-conscious practices has created a hidden ecosystem in higher education designed to advance diversity without violating Proposition 209. Taken together, this Note argues that today’s increased racial diversity in the UC’s student body is a result of a two-part system: (1) the UC’s diversity efforts within its self-prescribed limits under Proposition 209, and (2) the hidden ecosystem of private actors acting outside doctrinal limits to increase diversity in higher education.

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Introduction

In 1996, California became the first state to ban affirmative action when its voters approved Proposition 209.[1] Almost a quarter of a century later, the state took national center stage in Students for Fair Admissions as two competing narratives emerged regarding the effect California’s ban had on student body diversity at the University of California. Advocates on both sides of the Students for Fair Admissions case referenced how California has fared since its universities stopped considering race in admissions: the plaintiffs, Students for Fair Admissions, argued that California’s elite public universities just admitted their “‘most diverse undergraduate class ever,’ despite [the State’s] ban on racial preferences,”[2] while parties defending affirmative action held out California as evidence that no workable alternative to race-conscious admissions exists.[3] The Court in Students for Fair Admissions picked up on these narratives: both the concurring and dissenting opinions pointed to the University of California’s post-Proposition 209 diversity outcomes to support their positions.[4] Today, as institutions across the country look to the University of California for guidance on how to proceed post-Students for Fair Admissions,[5] it has never been more important to understand what actually happened in California after Proposition 209 passed.

After California’s affirmative action ban went into effect, the drop in enrollment of underrepresented minority students[6] at the state’s selective public universities was immediate and extreme.[7] The University of California, Berkeley and University of California, Los Angeles saw minority student enrollment fall more than 50 percent after ending their use of race-based affirmative action.[8] And the consequences of these drops were felt well beyond college admissions—underrepresented minority applicants’ attainment of undergraduate and graduate degrees declined, and the average underrepresented minority UC applicant’s wages declined annually by 5 percent.[9] Over time, as California courts and institutions grappled with the meaning of Proposition 209, student body diversity at the University of California gradually returned to pre-Proposition 209 levels.[10]

This Note provides a full account of the development of the law after Proposition 209’s passage, and asserts that gains in student body diversity at the University of California are a result of a two-part ecosystem: (1) the UC’s increasing diversity efforts within the bounds of Proposition 209’s limits and (2) the development of a hidden group of private actors acting outside of the limits of the doctrine to increase diversity in higher education. The Note ultimately argues that while this diversity ecosystem is far less efficient and effective at increasing racial diversity than race-conscious admissions would be, it has played an indispensable role in mitigating the impacts of Proposition 209.

Part I of this Note contextualizes Proposition 209 within the history and politics of affirmative action policies in the United States and California. Part II reviews in-depth the twenty-seven years of courts’ interpretations of Proposition 209, codified in California’s Constitution as Article I, section 31. This Section explains that while courts have clarified aspects of Proposition 209, ambiguities remain that influence how the UC has sought to comply with the ban while furthering racial diversity. Part III discusses the UC’s response to the affirmative action ban, arguing that the ambiguities left by the case law have allowed the UC to more aggressively pursue student body diversity efforts over time. Finally, Part IV describes the emergence of a hidden ecosystem of private actors not bound by the affirmative action ban—including student organizations, nonprofits and philanthropic organizations—that aim to increase racial diversity in higher education. The Note concludes that this ecosystem, along with the UC’s hampered efforts to diversify its student body, has played a necessary role in filling the gap left by Proposition 209 and ensuring racial diversity at the UC.

I. Contextualizing California’s Ban on Affirmative Action

The history of affirmative action and the debate surrounding it contextualize Proposition 209’s origins and progression. This Section briefly recounts the history of affirmative action in the United States, describes the context surrounding the passage of Proposition 209, and summarizes the immediate impact that Proposition 209 had on student body diversity at the University of California.

A.     Affirmative Action Prior to Proposition 209

Affirmative action policies emerged in the United States in the early 1960s when President John F. Kennedy issued an Executive Order that instructed federal contractors to take “affirmative action to ensure that applicants are treated equally without regard to race, color, religion, sex, or national origin.”[11] This was the first time the government imposed a requirement to do something more than refrain from discriminating.[12] Amidst the Civil Rights Movement and after the passage of the Civil Rights Act of 1964, President Lyndon B. Johnson signed Executive Order 11246 in 1965, which mandated government contractors to “take affirmative action” in all aspects of hiring and employing minorities.[13] When explaining the principles behind affirmative action in a speech at Howard University, President Johnson said:

You do not take a man who for years has been hobbled by chains, liberate him, bring him to the starting line of a race, saying, ‘you are free to compete with all the others,’ and still justly believe you have been completely fair . . . . This is the next and more profound state of the battle for civil rights. We seek not just freedom but opportunity—not legal equity but human ability—not just equality as a right and a theory, but equality as a fact and as a result.[14]

Executive Order 11246 led to the contemporary usage of the term “affirmative action.”[15] It not only imposed the affirmative action requirement on all contractors receiving $10,000 or more of federal funding, but it also created a new agency, the Office of Federal Contract Compliance (OFCC), to monitor compliance. The OFCC issued administrative orders that delineated the affirmative action obligation and eventually required employers to develop written affirmative action plans.[16] These requirements, which included developing “goals and timetables for eliminating underrepresentation of minority groups and women,” are the foundation for affirmative action as we understand it today.[17]

Before implementing affirmative action policies, institutions of higher education across the country had a striking lack of diversity. For example, in 1960, there were a total of fifteen Black students in the combined entering classes at Harvard, Yale, and Princeton.[18] From 1955 to 1968, not a single Black student received an M.D. from UCLA School of Medicine.[19] Fewer than 1 percent of all lawyers were Black, and lawyers of other races were so few that they were not counted.[20] Prior to using affirmative action policies, Berkeley Law had only enrolled an estimated total of fifty-six non-White students over the fifty-seven years it had existed.[21] Access to higher education for non-White students was nearly nonexistent prior to the adoption of affirmative action admissions policies.

Following the development of affirmative action in government hiring and contracting throughout the late 1960s, higher education institutions began to implement affirmative action policies in their hiring and eventually in student admissions.[22] The Department of Housing, Education, and Welfare (HEW) amended its Title VI regulations in 1973 to require schools to take “affirmative action” if they had been found to have discriminated against students in the past.[23] In the absence of a finding of such prior discrimination, the regulations still encouraged schools to take “affirmative action” in order to “‘overcome the effects of conditions,’ which resulted in limiting participation” by persons of a particular race.[24] In response to these regulations, institutions of higher education began implementing affirmative action programs.[25]

Almost immediately after schools started implementing affirmative action programs, opposition emerged. Prominent newspapers and journals began publishing articles in the early 1970s denouncing the policies, asserting that schools were discriminating against qualified applicants and advancing reverse bias.[26] This ideological opposition was quickly accompanied by legal challenges, beginning with DeFunis v. Odegaard, a 1971 case challenging the affirmative action policy at the University of Washington Law School.[27] Although the Washington Supreme Court found that the school had a compelling interest in pursuing a racially diverse student body, the Supreme Court declared the case moot upon review in 1974.[28]

Just two months later, a White student, Allan Bakke, brought a similar challenge against the University of California, Davis, School of Medicine in a case that reached the Supreme Court in 1978. In Regents of University of California v. Bakke, the Court heard a constitutional challenge to UC Davis Medical School’s admission policy, which set aside sixteen of one hundred positions each year for “qualified minority applicants.”1[29] Though the decision had no majority opinion, five justices agreed that racial “quota[s],” like the one UC Davis Medical School used, violated the Equal Protection Clause of the Fourteenth Amendment.[30] However, those justices also found that the consideration of race was permissible as one of several factors used in admissions policies.[31] Justice Powell’s opinion rejected the idea that the consideration of race was justified by the history of racial injustice in America, instead endorsing the rationale that a diverse student body provided educational benefits for everyone.[32] After Bakke, higher education institutions modified their affirmative action policies, which continued around the country amongst growing debate.[33]

The political discourse notably became more hostile in the 1980s, as politicians referred to affirmative action as “reverse discrimination.”[34] The next major challenge to affirmative action came in the 1990s in the form of a ballot initiative proposing an affirmative action ban in California.

B.     Affirmative Action After Proposition 209

California became the epicenter of the national affirmative action debate in mid-1995, when the University of California Regents passed the country’s first affirmative action ban, Special Policy 1 (SP-1), that would prevent the UCs from considering “race, religion, sex, color, ethnicity, or national origin as criteria for admission.”[35] SP-1 was set to go into effect in 1997.[36] Shortly after the Regents passed SP-1, Californians voted on a ballot measure—Proposition 209—that would amend the state constitution to ban public actors from using race- or gender-based affirmative action.[37]

Proposition 209 qualified onto California’s 1996 general election ballot as the “California Civil Rights Initiative.” The ballot measure would add the following language to the California Constitution: “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.”[38] The initiative passed in November 1996 with 55 percent of voters approving and 45 percent rejecting.[39]

Immediately after Proposition 209’s passage, opponents challenged its constitutionality.[40] The District Court for the Northern District of California issued a preliminary injunction in December 1996, which remained in place until the Ninth Circuit vacated it in April 1997.[41] Thus, public education institutions were not required to implement changes to their undergraduate admissions policies until the admissions cycle for the class entering in 1998.[42]

As soon as Proposition 209 went into effect, underrepresented minority (URM) applicants became significantly less likely to gain admission to the UCs.[43] The most selective UC campuses at that time, UC Berkeley and UCLA, saw the most dramatic reduction of URM students admitted and enrolled in their undergraduate programs.[44] At UC Berkeley, the total number of admitted Black students dropped 66 percent, and the number of admitted Latinx students dropped 53 percent.[45] At UCLA, those numbers fell 43 percent and 33 percent, respectively.[46] Prior to the implementation of Proposition 209, Black students made up 7 percent of the undergraduate student body at Berkeley—a number that dropped to just 3 percent the first year of the ban.[47] Since Proposition 209 went into effect, Black students have not once made up more than 4 percent of the student body at UC Berkeley.[48] Latinx students at UC Berkeley dropped from 13 percent to 7 percent of the total population, and Native students went from 1 percent to 0 percent.[49] At UCLA, Black students went from 6 percent of the student body to 3 percent, and Latinx students dropped from a pre-Proposition 209 high of 22 percent to 10 percent in the first year the ban was implemented.[50] UCLA has only once reached 1995 levels of Latinx students, twenty years after the passage of Proposition 209.[51]

The impact was lesser but still notable at other, less selective UC undergraduate campuses. UC Irvine admitted 19 percent fewer Black students and 8.6 percent fewer Latino students, and UC Santa Barbara saw admissions drop by 14 percent and 23 percent for those groups, respectively.[52] Though there was a notable drop in admissions of URM students across all UCs, it generally did not result in a similar decrease in enrollment levels at the less selective universities.[53] The drop in admissions of URM students at the most selective UCs led to a “cascade” of URM students from more to less selective universities, which resulted in stable or slight increases in URM student enrollment at the rest of the UCs after 1998.[54]

UC professional programs also saw an immediate decrease in URM enrollment when the schools stopped considering race in 1996, a year before Proposition 209 took effect in undergraduate admissions.[55] The largest impact was felt at the most selective law schools, Berkeley Law and UCLA Law.[56] The drop in admitted URM students at Berkeley Law was dramatic. In 1996, Black students made up 9.2 percent of admits; in 1997, the percentage dropped to 1.8 percent.[57] Latinx students similarly made up 9.6 percent of admits in 1996 and dropped to 4.9 percent the next year.[58] Native student admits made up 1.1 percent in 1996, and 0.3 percent in 1997.[59] In the first year that Berkeley Law implemented the affirmative action ban, only a single Black student enrolled—one who had deferred his acceptance from the prior admission cycle.[60] And only seven of the Latinx students admitted in the 1997 cycle chose to enroll at Berkeley Law that year.[61] The percentage of Black students enrolled at UCLA Law fell from 7.4 percent to 2.6 percent.[62] Both UCLA Law and Berkeley Law saw their Black student enrollment go down to the level they were at in the 1960s, prior to the implementation of race-conscious affirmative action policies at those schools.[63]

The UC’s five medical schools experienced a somewhat less pronounced drop in the enrollment of URM students after Proposition 209. Black students went from making up 10 percent of the state’s public medical school students in 1993 to 5 percent in 1997, while Latinx students went from 16 percent in 1992 to 10 percent in 1997.[64]

While Proposition 209 had an immediate impact on student body diversity at selective UC campuses, there was much uncertainty around what the new constitutional amendment prohibited.[65] Courts have since explored and somewhat clarified the boundaries of Proposition 209, providing more guidance on what is permitted. However, the case law has not addressed some key questions about the meaning of Proposition 209, leaving state actors on their own to figure out what is permissible.

II. Determining The Meaning of Proposition 209: A Review of the Case Law

Surprisingly, after over twenty-five years of legal challenges and judicial interpretations of Proposition 209, there are few decisions applying the law. The available judicial decisions provide important guidance, but the body of case law leaves key areas of the law unclarified, providing state actors with little guidance about how to proceed. The following Section reviews the existing case law on Proposition 209. It summarizes pre-election litigation, describes several challenges to the measure’s constitutionality, and then explains how courts have applied the measure throughout a series of cases. This Section concludes by identifying the areas that the judiciary has not defined and where ambiguities continue to exist.

A.     Pre-Election Litigation

Proposition 209 became the basis of a legal challenge before Californians had the opportunity to vote on it. A few months before voters would cast their ballots, opponents of Proposition 209 challenged the California Attorney General’s selected ballot title and ballot label for the initiative in Lundgren v. Superior Court.[66] The Attorney General described the constitutional amendment in the ballot title and label without using the words “affirmative action,”[67] and opponents argued that the ballot title and label should be revised to “[r]eflect that the chief purpose of the measure is to prohibit affirmative action programs by public entities.”[68] The California Court of Appeal found that the Attorney General met his statutory obligation in providing an accurate and impartial ballot title and statement.[69]

The court reasoned that the title, summary, and label were all “essentially verbatim recitations” of the ballot measure’s language, and thus must be accurate.[70] The court also reasoned that the term “affirmative action” was not well defined.[71] Because the term could mean many things, the court argued that “[m]ost definitions of the term would include not only the conduct which Proposition 209 would ban . . . but also other efforts such as outreach programs”; thus, including the term in the ballot language would be “overinclusive and hence ‘false and misleading.’”[72] This first Proposition 209 case foreshadowed the ambiguity courts and public actors in California would grapple with when the measure became law.

B.     Constitutional Challenges

1.     Wilson I: Federal District Court Issues a Preliminary Injunction

Since its adoption, the constitutionality of Proposition 209 has been challenged on several occasions, none of which have been successful. The first challenge was brought just twelve hours after voters passed the initiative.[73] The Coalition for Economic Equity—a group made up of individuals and organizations including the ACLU and the Lawyers Committee for Civil Rights of San Francisco—filed a lawsuit alleging that Proposition 209 violated the Equal Protection Clause of the U.S. Constitution and was preempted because it conflicted with federal civil rights law.[74] In Coalition for Economic Equity v. Wilson (Wilson I), the plaintiffs sought a preliminary injunction against defendants Governor Pete Wilson, Attorney General Dan Lungren, and the University of California, to prevent them from enforcing or implementing Proposition 209 while awaiting trial.[75]

The plaintiffs in Wilson I asserted two claims. First, they claimed that Proposition 209 violated the Fourteenth Amendment’s equal protection guarantee of “the right to full participation in the political life of the community.”[76] Second, they claimed that Proposition 209 violated the Supremacy Clause of the U.S. Constitution because it interfered with Congressional goals of Titles VI and VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.[77]

The District Court for the Northern District of California initially granted a temporary restraining order, which would temporarily maintain the pre-election status quo for ten to twenty days.[78] The court found that the plaintiffs had a strong probability of success on the merits and had shown the possibility of irreparable injury; therefore, a temporary restraining order was appropriate “to afford the Court more time to fully consider the merits of” the challenge.[79]

Shortly thereafter, the court granted a preliminary injunction against the defendant class,[80] ensuring that Proposition 209 would not be implemented or enforced pending trial or final judgment.[81] In the opinion granting the preliminary injunction, the court recognized that much of the language in Proposition 209 simply reaffirmed existing antidiscrimination protections already provided by the federal and state constitutions.[82] The court explained that the focus of the plaintiffs’ challenge was not on that restatement of current law, but rather the closing of the “narrow but significant window that permits governmental race- and gender-conscious affirmative action programs.”[83]

The plaintiffs’ first claim relied on the political structure doctrine, articulated by the Supreme Court in Hunter v. Erickson and Washington v. Seattle School District No. 1, which prohibits laws that “distort[] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.”[84] The plaintiffs argued that Proposition 209 would require people seeking race- and gender-conscious affirmative action to first mount a statewide campaign to amend the state constitution, while anyone seeking preferential treatment on other grounds would not need to overcome such a hurdle.[85] The court agreed with the plaintiffs that Proposition 209 singled out women and racial minorities for unique political burdens, consequently violating the Fourteenth Amendment.[86]

The plaintiffs’ second claim was that Congress intended to preserve voluntary affirmative action as a means to attain the goals embodied in Titles VI and VII of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.[87] The court found that Congress intended to protect employers’ discretion to use affirmative action to comply with their obligations under Title VII, and Proposition 209 went against that Congressional purpose.[88] However, it found no indication that Congress intended to maintain affirmative action under Titles VI and IX, and thus these two provisions did not preempt Proposition 209.[89]

Lastly, the court found that a preliminary injunction was appropriate because the plaintiffs successfully showed that injury to members of their plaintiff class was “almost certain” in the absence of such an order.[90] In contrast, a preliminary injunction would impose “little hardship” on members in the defendant class who would simply have to suspend implementation.[91]

The district court granted a preliminary injunction in December of 1996, prohibiting state actors from enforcing the implementation of Proposition 209 until the Ninth Circuit decided the case. This injunction allowed the UCs to use affirmative action for the 1996–1997 admissions cycle, meaning that Proposition 209 would not impact the class of undergraduates entering in fall of 1997.

2.     Wilson II: The Ninth Circuit Vacates the Preliminary Injunction

In April 1997, an appellate panel of the Ninth Circuit[92] vacated the preliminary injunction, thereby allowing state actors to implement and enforce Proposition 209 and ending the use of race and gender-based affirmative action at the UC.[93] The Ninth Circuit reviewed the district court’s preliminary injunction under an abuse of discretion standard, asking primarily if the district court relied on an erroneous legal premise.[94] The Ninth Circuit found that the district court had relied on an erroneous legal premise in concluding that the plaintiffs were likely to succeed on their equal protection and preemption claims.[95] The court reasoned that, because equal protection law generally frowns on racial classifications, a law like Proposition 209 that makes race irrelevant to government decision-making could not be attacked as violating equal protection.[96]

The court next addressed the preemption claim, finding that Title VII’s preemption clause did not include Proposition 209 because it did not “require the doing of any act which would be an unlawful employment practice under Title VII.”[97] Citing a Title VII provision that states that the law should not be interpreted to require preferential treatment on the basis of race or gender, the court found that Proposition 209 was entirely consistent with Title VII, and thus could not be preempted by it.[98] Having found that the plaintiffs had no likelihood of success on the merits of either of their claims, the court vacated the preliminary injunction.[99]

With Proposition 209 in effect, the Ninth Circuit declined to rehear the case en banc at the plaintiffs’ request,[100] and the Supreme Court declined to hear the case.[101] The issue of Proposition 209’s facial constitutionality was decided.

3.     California Supreme Court Reviews Proposition 209’s Constitutionality

Thirteen years later, the California Supreme Court took up the question of whether Proposition 209 violated the Equal Protection Clause in Coral Construction, Inc. v. City and County of San Francisco.[102] The case involved a challenge to San Francisco’s ordinance requiring prime contractors to use minority- and women-owned contractors at a certain level, or to make good faith efforts to target outreach to those contractors.[103] San Francisco argued in response that Proposition 209 violated the political structure doctrine, just as the plaintiffs in Wilson had argued.[104] The political structure doctrine prohibits laws that “distort[] governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.”[105] The California Supreme Court disagreed, finding that Proposition 209 did not violate the political structure doctrine.[106] Largely relying on Wilson II and a Sixth Circuit case upholding a similar state law,[107] the court reasoned that racial preferences are presumptively unconstitutional unless they are narrowly tailored to serve compelling government interests.[108] Therefore, the political structure doctrine could not protect presumptively unconstitutional racial preferences like affirmative action over alternative race neutral options.[109] Thus, following the Ninth Circuit’s reasoning, the California Supreme Court upheld Proposition 209 as constitutional.

4.     A Second Constitutional Challenge Reaches the Ninth Circuit

Two years later, the constitutionality of Proposition 209 was challenged once more for violating the Equal Protection Clause in Coalition to Defend Affirmative Action v. Brown.[110] This time, the plaintiffs brought an as-applied constitutional challenge, asserting Wilson II was not binding because it was a facial challenge.[111] They argued that Proposition 209 violated the Equal Protection Clause under a conventional equal protection analysis, in that it allowed admission officials to depart from admission criteria for some purposes (veteran states, income, geographical background, athleticism, legacy), but not for “racial diversity,” resulting in Black, Latinx, and Native students being treated differently from others.[112] Additionally, they argued that Proposition 209 created an “unequal political structure” because Black, Latinx, and Native students could not use the normal democratic process of petitioning the UC Regents for changes to the admissions policy, but would instead have to persuade the California electorate to repeal Proposition 209.[113] Lastly, the plaintiffs argued that Wilson II was irreconcilable with Grutter v. Bollinger.[114]

The court disagreed that Wilson II was not binding, finding that it had already rejected both of the arguments made by Plaintiffs.[115] The court held that there was “simply no doubt” that Proposition 209 was constitutional as a matter of “conventional” equal protection, and that it did not violate the Fourteenth Amendment under the political structure analysis.[116] Specifically, the court said that the Wilson II court had already considered the higher education scenario that the plaintiffs were challenging—it made its decision with knowledge of the district court’s factual finding that the number of Black and Native students at the UC could fall by as much as 50 percent.[117]

Finally, the Court rejected the plaintiff’s Grutter argument, finding that Wilson II and Grutter were clearly reconcilable since Grutter held that race-based affirmative action programs were permissible but not required under the Fourteenth Amendment.[118] In sum, the Ninth Circuit affirmed that Wilson II remained the law, and Proposition 209 did not violate the Equal Protection Clause.[119]

Despite the above attempts to challenge Proposition 209 in both federal and state court, the Ninth Circuit and California Supreme Court repeatedly made clear that banning race- and gender-based affirmative action is constitutionally permissible.

C.     Judicial Application of Proposition 209

From its inception, the meaning of Proposition 209 was ambiguous. It prohibits the state from “discriminat[ing] against, or grant[ing] 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.”[120] Such broad language is subject to different interpretations and does not clearly delineate what it allows or prohibits. This is evidenced by the opposing sides’ ballot arguments regarding the impacts of Proposition 209 and the state legislature’s neutral report on the measure. While proponents stated that Proposition 209 would ensure that the government would “not give a job, a university admission, or a contract based on race or sex,”[121] opponents warned voters that it would in fact bar “tutoring and mentoring for minority and women students” and “programs designed to encourage girls to study and pursue careers in math and science.”[122] Meanwhile, the California Legislative Analyst’s Office informed voters that the reach of Proposition 209 was not clear and would likely become a question for the courts to determine. It stated: “The specific programs affected by the measure . . . would depend on such factors as (1) court rulings on what types of activities are considered ‘preferential treatment’ . . . .”[123]

Given the ambiguity in Proposition 209’s language, one might expect that courts would have answered the question set out by the Legislative Analyst’s report. However, in the quarter-century since the initiative passed, there have been fewer than twenty publicly available cases where courts have applied Proposition 209 in a way that provides clarity about what kinds of programs it does and does not permit.[124] Of those cases, only six struck down a program as violating Proposition 209, with the most recent of those cases decided in 2010. Since then, only three cases challenging programs as violating Proposition 209 have been decided on the merits.[125] Though these cases provide some important, tangible guidance about what is prohibited and allowed under the law, gray areas remain.

This Section will first list the initial areas of ambiguity that the courts have explored. It will then lay out a framework for analyzing and categorizing programs challenged under Proposition 209 for giving “preferential treatment.” Lastly, this Section will review the existing case law as it pertains to each area of ambiguity, explaining where the cases have provided answers and where questions remain.

The following review of the case law will be organized into three main areas of ambiguity that courts have explored and clarified through their interpretation and application of Proposition 209. First, the most notable area of ambiguity was the confusion about what constituted “preferential treatment on the basis of race, sex, color, ethnicity, or national origin.” The second gray area involved defining “state actor,” “operation of public employment, public education, or public contracting,” and the extent state actors could support or be involved in programs run by non-state actors that grant preferences based on race or gender. Third, questions remained about when the exceptions written into the text of the law would apply, including the federal funding exception and the existing court order or consent decree exception. These three areas have important implications on institutions of higher education and what they are permitted to do under Proposition 209.

1.     “Preferential treatment”

One of the biggest questions left to be clarified by the courts was what actions would constitute impermissible “preferential treatment” under Proposition 209. One framework proposes analyzing case law by looking at two variables: the function of the characteristic it considers, and the reliance it places on that characteristic.[126] Function, differentiated from a program’s purpose, is defined as the object of considering a characteristic like race.[127] A program’s function of considering race can include allocating benefits to a certain racial group, promoting outreach to a particular racial group, or keeping records of racial diversity, among others.[128] Programs may fit into multiple categories. Reliance describes the extent to which the program relies on the characteristic.[129] This can range from race being the sole determinant of the outcome versus one of many characteristics considered in a decision.[130]

A review of the case law through the lens of the function and reliance variables reveals that allocation programs that solely rely on race or gender have clearly been held to violate the ban on “preferential treatment.”[131] It will also make clear that programs intended only to keep records based on race or gender are permissible. In between those extremes, there remains a gray area about what kind of “preferential treatment” is permitted and prohibited by Proposition 209. Within this gray area is the particularly important category of “pure outreach”—a program that intends to solicit the application of individuals based on race or gender, without creating an advantage for those individuals in the allocation of the benefit.

D.    Cases Striking Down Programs as Violating Proposition 209

Immediately after Proposition 209 went into effect, several preexisting programs that either remained the same or had been slightly altered were challenged for violating the new law. The programs challenged in Connerly v. State Personnel Board and Kidd v. State all had the function of allocating a benefit on the basis of race and gender using set-asides and quotas.[132] Connerly v. State Personnel Board challenged a number of programs, including a California Treasury program that sought 15 percent participation by minorities and 5 percent participation by women providing bond services, as well as a California Community College program that sought to hire a racial minority for three of ten positions in proportion with the makeup of California’s adult population.[133] In Kidd v. State, the state court of appeal considered a policy that allowed women and minority applicants to be “considered for employment even though they did not place in the top three ranks of the list of eligible candidates.”[134] Programs that allocated benefits and relied solely on prohibited characteristics were repeatedly found by the courts to violate Proposition 209’s ban on preferential treatment.[135]

Hi-Voltage Wire Works v. City of San Jose, the California Supreme Court’s first of two Proposition 209 cases, involved a slightly more complex program with regards to its “preferential treatment.”[136] The case was a challenge to an affirmative action program run by the City of San Jose that was intended to promote minority- and women-owned businesses in the city’s public works projects.[137] The program required contractors to either meet targeted participation goals or prove they made a reasonable effort to do so.[138] A reasonable effort included doing all of the following: soliciting bids directly from minority- and women-owned businesses, following up directly with them, negotiating in good faith with any of those businesses that showed interest in the project, and providing written reasons for rejecting a low bid from them.[139]

The California Supreme Court unanimously held that the city’s program gave “preferential treatment” based on race and gender and therefore violated Proposition 209.[140] The court analyzed the program in two parts: the participation component and the outreach component.[141] The court found that the city’s participation goal amounted to “discriminatory quotas or set-asides, or at least race- and sex-conscious numerical goals” that violated Proposition 209.[142] This participation goal more closely mirrored the programs described above that involved set-asides or quotas.[143] The function of its use of race and gender was to allocate opportunities while relying entirely on participants’ race and gender to reach the city’s participation goal.[144] As such, this component of the city’s program fits within the analysis above as clearly falling within behavior banned by Proposition 209.

The court also found that the program’s outreach component violated the law because it required contractors to not only reach out to minority- and women-owned businesses with notice of bidding opportunities, but also treat them more advantageously in soliciting their participation and negotiating for their services.[145] The court found that the fact that contractors were “compelled to contact” minority- and women-owned businesses meant that those businesses were being granted preferential treatment that violated Proposition 209.[146] The usage of race and gender in this outreach component seemingly had two simultaneous functions: outreach (soliciting more participation from minority- and women- owned businesses) and allocation of benefits (determining who gets the contracts by requiring that businesses treat certain contractors advantageously in negotiations and in providing a written justification for rejecting their bid).[147] Because the outreach component involved not only outreach but also the allocation of the benefits, and because it considered only the race and gender of an applicant, the court’s holding tracks with the general trend that programs with a function of allocating benefits based largely on impermissible characteristics are not allowed under Proposition 209.[148]

The court’s holding in Hi-Voltage was narrow, noting that the city’s program was not a benign form of outreach, but instead “effectively provide[d] an advantage to members of the targeted groups.”[149] The court left open the possibility that other forms of outreach may be permissible under Proposition 209.[150] One concurring opinion went further, stating that the law did not “prohibit all affirmative action programs or preclude governmental entities in this state from initiating a great variety of proactive steps in an effort to address the continuing effects of past discrimination,” while another explained that “passivity” was not required by Proposition 209.[151]

The last case in which a court analyzed and struck down a program as violating Proposition 209 was Crawford v. Huntington Beach Unified High School Dist., which involved a school district’s use of racial balancing in its open transfer policy.[152] The district employed a one-for-one race exchange policy that prohibited White students from transferring out of the high school unless another White student was willing to transfer in to take their place. The policy further prohibited non-White students from transferring in unless a non-White student was willing to transfer out to make a space.[153] The district used this strategy at the direction of the California education code, which dictated that school districts had the authority to maintain “appropriate racial and ethnic balances” at its schools.[154] The district argued that its voluntary integration program differed from the programs struck down in Hi-Voltage and Connerly because each school had the same educational program and thus school placement did not benefit or disadvantage any students.[155] The court disagreed, finding that the policy violated Proposition 209 by creating “different transfer criteria for students solely on the basis of their race.”[156] In the court’s view, the district’s program relied entirely on a student’s race and no other factors in order to restrict the freedom of choice they would otherwise have to select a school.[157] In that way, the program at issue highly relied on race and functioned as an allocation of a benefit, placing it in the same “preferential treatment” category as Connerly, Kidd, and Hi-Voltage.[158]

E.     Cases Upholding Programs as Not Violating Proposition 209

Like the cases striking down programs as violating Proposition 209, several clear takeaways can be gleaned from the cases in which courts have upheld challenged programs. First, courts have clarified that Proposition 209 does not apply to traditional discrimination against racial minorities.[159] Second, no court has found that a facially race- or gender-neutral program violates Proposition 209.[160] Third, policies emphasizing the value of diversity do not appear to violate Proposition 209.[161]Additionally, it is clear from the cases that uphold challenged programs that Proposition 209 does not prohibit recordkeeping on the explicit basis of race or gender. Although the court in Connerly found many programs to violate Proposition 209, it singled out the recordkeeping requirements intended to collect and report information about race as permissible, and possibly even required under the state’s obligation to “eliminate the vestiges of segregation and discrimination.”[162] Though the recordkeeping program may have relied exclusively on race and gender, it did not allocate opportunity in any way.[163] Thus, it falls outside of the category of programs that have been found to violate Proposition 209: those that relied heavily on race and gender for the function of allocating opportunity. Lastly, the case law indicates that programs that do not use race or gender as a determinative factor do not violate Proposition 209.

Courts have also upheld school assignment policies that rely on race and gender as one of several factors. In Avila v. Berkeley Unified School District, a state trial court upheld the Berkeley Unified School District’s school assignment policy in an unpublished opinion that was not appealed.[164] The school district adopted this “Voluntary Racial Desegregation Plan” to “ameliorate the harmful effects of racial isolation.”[165] The plan considered a “child’s residence, the child’s socio-economic situation, and race/ethnicity” when assigning children to schools, and it directed the district to “assign students in a manner that ‘strives’ to have a school’s demographics for each grade level reflect the district’s demographics for that grade level.”[166] The court upheld the district’s program, reasoning that Proposition 209 did not prohibit the consideration of race entirely, but instead prohibited using race as the determinative factor.[167] The court distinguished Berkeley’s program from that in Crawford because it used a multifactor test in which race was not determinative.[168]

Similarly, in American Civil Rights Foundation v. Berkeley Unified School District, the California Court of Appeal upheld a later iteration of Berkeley’s school placement program on the grounds that it relied on neighborhood demographics rather than individual students’ race in assigning students to schools.[169] The Berkeley program divided the city into 445 “planning areas” and assigned each area a “diversity category” based on “three factors: (1) the average household income of those living in the planning area; (2) the average education level attained by adults living in the planning area; and (3) the percentage of ‘students of color’ living in the planning area.”[170] Student assignments were then based on the “planning area” that a student resided in and the “diversity category” it fell in.[171] The court distinguished this program from the one struck down in Crawford because that program relied solely on individual students’ race while Berkeley’s program did not.[172] The court explained that, under Proposition 209, “decision makers remain free to recognize that our society is composed of multiple races with different histories, to gather information concerning geographic distribution of the races, and to adopt race-neutral policies in an effort to achieve a fair allocation of resources.”[173]

Neither Berkeley program relied heavily on race because race was not determinative of the outcome.[174] It appears from these cases that programs that have a limited reliance on impermissible characteristics may be allowed. However, no court has decided whether, in contrast with the two Berkeley cases, a program that used race as a non-determinative factor for the sole function of allocating benefit would be permissible.

In sum, the existing case law provides only some clarification as to what kinds of “preferential treatment” are allowed and prohibited under Proposition 209. First, the definition of “preferential treatment” certainly includes programs that rely heavily on race as a determinative factor in allocating benefits. While some forms of outreach that provide advantages based on race or gender are not permitted under Proposition 209, courts have not addressed whether outreach on the basis of race or gender without an accompanying allocation of benefit is allowed. The case law does make clear that programs that rely on race or gender for the purpose of recording and monitoring demographic data are permissible. However, it remains unanswered whether a program that explicitly allocates benefits but uses race or gender as just one of many non-determinative factors would violate Proposition 209.

1.     “On the basis of race, sex, color, ethnicity, or national origin”

In contrast with “preferential treatment,” the definition of “on the basis of race, sex, color, ethnicity, or national origin” is generally quite clear. In a challenge to a bill that provided in-state tuition for undocumented graduates from California high schools, a California court of appeal held that “national origin” under Proposition 209 does not include citizenship status.[175] The court based its definition of national origin on the Supreme Court’s interpretation of the term in Title VII of the Civil Rights Act of 1964.[176] Separately, in a challenge of UCLA Medical School’s admissions policy, a plaintiff argued that the Spanish language proficiency requirement constituted an ethnic preference under Proposition 209.[177] The court disagreed with the plaintiff’s assertion that the requirement was “inextricably intertwined with race” and thus an unlawful racial preference “favoring Hispanics,” noting that the plaintiff incorrectly assumed that all Hispanics speak Spanish and all non-Hispanics do not speak Spanish.[178] Thus, preferences based on a person’s ability to speak a language do not fall into Proposition 209’s definition of preference on the basis of race or ethnicity.[179]

2.     “State actor” and “operation of public employment, public education, and public contracting”

While the definition of “state actor” is well settled, one case has required further clarity on what qualifies as a “state actor” acting “in the operation of public education.”[180] Proposition 209 states: “the state shall not [discriminate or grant preferential treatment] in the operation of public employment, public education, and public contracting.”[181] Thus, Proposition 209 cannot be used to challenge actions taken by nongovernment actors, including private universities.[182] One wrinkle that has come up in litigation is the definition of “the operation of public education.” A California court of appeal held that UCLA’s laboratory elementary school was not the “operation of public education” despite being run by a state actor. Finding “operation of public education” to be ambiguous, the court looked to the ballot materials and the ordinary meaning of the terms in California law.[183] There, it found that the ballot materials failed to state that the “operation of public education” would include publicly funded research programs run by public universities.[184] It also found that “public education” in state law referred to “‘common schools,’ free of charge, ‘open on equal terms to all,’ and administered by the local school districts.”[185] Because the UCLA Lab School was a publicly funded research program and not a common school administered by a local school district, the court held that UCLA’s administration of the Lab School did not qualify as the “operation of public education” under Proposition 209.[186] As a result, Proposition 209 did not apply to the UCLA Lab School and it was allowed to continue to select students on the basis of race.[187]

Though this area of Proposition 209 is fairly clear-cut, courts have yet to consider what a state actor’s involvement can be in a privately-run program granting preferences based on race or gender. Relevant questions remain in the higher education context: can state actors provide support, including access to facilities, staff, or funding, to programs that explicitly consider race?

3.     Exceptions

Proposition 209 delineates several exceptions to its general ban on race- and gender- based preferences.[188] These exceptions include allowing preferential treatment based on race or gender when an actor can show that it is necessary “to establish or maintain” eligibility for federal funds. Similarly, there is an exception for preferences necessary to comply with an existing court order or consent decree.[189]

First, the law concerning the federal funding exception is underdeveloped. There is not yet a case holding that a state actor has established its program was necessary to be eligible for federal funds. It appears that while federal adjudications are not necessary to establish ineligibility for federal funding, there is a high bar to establish that federal funding for a program requires race- or gender-based preferences.

In C&C Construction, Inc v. Sacramento Municipal Utility District, a state actor claimed that an affirmative action program was needed to maintain federal funding eligibility under regulations promulgated under the federal Departments of Energy, Defense, and Transportation.[190] The California court of appeal explained that a state actor need not obtain federal adjudication (a federal court or agency ruling) “that race-based discrimination is necessary to maintain federal funding.”[191] However, to qualify for this exception, the state actor must “have substantial evidence that it will lose federal funding if it does not use race-based measures and must narrowly tailor those measures to minimize race-based discrimination.”[192] The court ultimately found that, because the federal regulations required “affirmative action to remedy past discrimination and affirmative action may be either race-based or race-neutral,” the state actor could not use race-based affirmative action unless it could “establish that it [could not] remedy past discrimination” without it.[193] And since no federal law or regulation required the state actor to use race-based affirmative action, the federal funding exception did not apply. [194]

The California Supreme Court later discussed the federal funding exception in Coral Construction Inc, v. City and County of San Francisco.[195] The state actor argued that its affirmative action program was required to maintain eligibility for funding under Environmental Protection Agency (EPA) and Department of Transportation (DOT) regulations.[196] Based on its own statistical studies, the state actor determined that it was actively discriminating against women and minority groups in its contracting, and thus the affirmative action program was required bring it into compliance with federal laws and regulations.[197] The court found that both regulations required “affirmative action” in some circumstances, but neither required race-based affirmative action.[198] Regarding the EPA regulation, the court explained that “the term ‘affirmative action’ clearly refers not to race-based remedies but, rather, to actions taken to benefit the specific victims of past discrimination.”[199] Regarding the DOT’s regulation, the court understood the regulation to be permissive of race-based affirmative action but did not require it, implied from the regulation’s language stating it “does not prohibit the consideration of race.” Because the regulations did not require the state actor consider race, the court held that the program did not fit into the federal funding exception.[200]

In sum, the case law suggests that there is a high bar to establish that federal funding for a program depends on race- or gender-based preferences, though a federal adjudication is not required.[201] One aspect of the federal funding exception has not yet been directly addressed by the courts: when are preferential actions taken in order to establish eligibility for federal funding acceptable?

In contrast to the federal funding exception, courts have found on several occasions that an existing court order excepts a program from compliance with Proposition 209. To be exempt, a court order or consent decree must have been in place prior to the passage of Proposition 209. For example, in a case challenging a hiring practice that benefitted women and racial minorities—referred to as “banding”—the Ninth Circuit held that the program was exempt from Proposition 209 because it was required by a consent decree that was in place prior to 1996.[202] For school districts, programs that were part of pre-1996 court-ordered integration plans are not controlled by Proposition 209 because they fall under the existing court-order exception.[203]

In conclusion, though relatively sparse, the Proposition 209 case law provides some key clarifications as to what actions the law does and does not cover. The cases leave a few key questions unaddressed, including the permissibility of outreach based on race or gender without any accompanying benefit in the selection process, state actor involvement in a privately-run program granting race- or gender-based preferences, and the use of race- and gender-based preferences in order to establish, rather than maintain, federal funding. These unanswered questions burden state actors to chart their courses of action without clear judicial guidance. The next Section will explore how the University of California has dealt with these ambiguities in the law and defined its own obligations under Proposition 209 over time.

III. Proposition 209 in the UC System: The University of California’s Response

Just like colleges and universities around the country scrambled to come into compliance with the Supreme Court’s ruling in Students for Fair Admissions,[204] the University of California had to make changes to its admissions programs to avoid violating Proposition 209 twenty-six years earlier. The decisions that individual UC campuses and programs made directly following the implementation of Proposition 209 are not well documented. In the UC’s own recounting of its post-Proposition 209 changes, the story begins with the system’s efforts to ameliorate the negative impacts on racial diversity several years later, rather than describing how campuses altered their programs immediately after the law went into effect.[205] While we lack a big-picture understanding of what occurred at UC immediately after the affirmative action ban went into effect, Andrea Guerrero’s book, Silence at Boalt Hall: The Dismantling of Affirmative Action, provides a window into how UC Berkeley, School of Law (previously called Boalt Hall) handled early implementation.[206]

A.     A Case Study: Early Implementation and the Resulting Impact on Admissions at Berkeley Law

Though Proposition 209 had not yet been implemented as a result of the preliminary injunction,[207] SP-1 indicated that graduate programs had to begin implementing “race-blind” admissions in the 1996-1997 admissions cycle.[208] As one of the first schools to undergo this transition, and one of the schools most significantly impacted by the ban, Berkeley Law is a salient example of campus administrators’ struggle to implement the new mandate.

Having already revised its admissions policy after the UC Regents’ passage of SP-1, the school changed little about its admissions criteria other than removing the consideration of race.[209] Berkeley Law Professor Marjorie Shultz wrote a memo to the faculty prior to the implementation of this policy, arguing that numerical indicators did not predict “outstanding competency in and contribution to the profession and to society,” and urging the faculty to design a better system without such a heavy reliance on numbers.[210] Understanding that reliance on numbers would have a devastating impact on the admissions of students of color, she concluded by reminding the faculty that, “[i]f we need additional incentive, we need only contemplate the untenable prospect of having an overwhelmingly white class selected by a system that is traditional but grossly lacking in justification.”[211] Ultimately, faculty chose not to change the design of the admissions policy but instead nominally changed the weight given to numerical indicators.[212]

During the 1997 admissions process, due to a lack of clarity about what was allowed and prohibited under the new ban, Berkeley Law administrators and faculty erred on the side of caution in several ways. One example of this was how personal and diversity statements were reviewed. Faculty believed that personal statements discussing racial discrimination could not be considered a “plus” factor for an applicant because it came too close to violating the ban on affirmative action.[213] Even though Berkeley Law invited applicants to submit an essay about how they might contribute to the school’s diversity, the admissions committee clarified that applicant essays that discussed racial diversity could not be considered favorably.[214] Because faculty were concerned that any consideration of race could be a violation of the race-based affirmative action ban, they did not consider favorable any experiences shared by students of color related to their race.[215]

Another example was when the administration declined to give the list of Latinx admits to the student leaders of La Raza Law Students Association until the day before finals began, preventing them from contacting those students and encouraging them to attend Berkeley Law as they had traditionally done.[216] The Dean of the law school explained that the school was worried that such outreach would be viewed as a violation of the ban on affirmative action.[217]

The results of Berkeley Law’s first “race-blind” admissions process were striking: the number of Black students admitted dropped 81 percent, Native student admissions dropped 78 percent, and Latinx admissions dropped 50 percent. A single year of admissions undid thirty years of progress in racial diversity at Berkeley Law.[218] A month later, the school announced that not one of the fourteen admitted black students were going to enroll at Berkeley Law.[219] One black student who deferred his admission the previous cycle would be enrolling.[220] No Native students enrolled, and only seven Latinx students chose to enroll.[221]

Berkeley Law’s story provides just one example of the challenges and uncertainties UC campuses faced and the impact that those challenges had on admissions. The fast implementation of a significant change to admissions processes, along with a lack of knowledge about what administrators were allowed to do under the affirmative action ban, led to significant drops in underrepresented minority enrollment at all selective UC institutions in the immediate aftermath of implementation.[222]

B.     The University of California’s Interpretation of Proposition 209 Today

In the years after SP-1 and Proposition 209 went into effect, the UC began to define their own obligations under Proposition 209. With a growing institutional desire to increase diversity, the UC has had to identify methods to achieve that diversity without violating the law. To that end, the UC has developed guidelines for UC campuses and administrators about what programs are permissible under Proposition 209, discussed in more detail below, that provide a good picture of what the UC general counsel has come to believe is permissible.

Despite Proposition 209, UC leaders have openly discussed their goal to diversify as an institution.[223] Though the UC has also expressed aims to diversify faculty, this Section will focus on the system’s efforts to diversify the student body. Just a few years after Proposition 209 went into effect, the UC Regents voted unanimously to rescind its affirmative action ban (SP-1)—a move that had no actual effect on admissions policies, but was characterized as symbolically removing the “not wanted” sign with the hopes of encouraging more students of color to apply and attend.[224] Six years later, the UC Regents adopted Regents’ Policy 4400, the University of California Diversity Statement.[225] This statement called for the UC to “seek to achieve diversity among its student bodies.”[226] The policy recognized the “acute need to remove barriers to the recruitment, retention, and advancement of talented students, faculty, and staff from historically excluded populations.”[227]

As discussed in Part II, the UC has had to rely on a relatively small number of judicial decisions regarding Proposition 209 to determine what it can do in pursuit of this explicit goal of achieving diversity. The UC’s guidelines have opened doors to new methods of achieving diversity that were not believed to be permissible when Proposition 209 first passed. As the UC puts it, “While Proposition 209 eliminated some of the tools that the University had previously employed to achieve diversity . . . there are many steps that the University can take to maintain and enhance diversity and equal opportunity.”[228]

The most recent guidance that the UC General Counsel’s office has released regarding Proposition 209 compliance was published in 2015.[229] This document, Guidelines for Addressing Race and Gender Equity in Academic Programs in Compliance with Proposition 209, provides a picture of how UC administrators interpret California’s affirmative action ban.[230] The document begins with a section entitled, “Guidelines to Enhancing Diversity,” underscoring the fact that the UC has continued to pursue diversity, including racial diversity, despite Proposition 209.[231]

The document recognizes that “there remain unanswered questions about the interpretation of Proposition 209,” but the guidelines identify five categories of programs that are generally permissible, with the caveat that legal analysis of diversity programs under Proposition 209 depends largely on the details of how it is implemented.[232] The five categories are as follows:

1.     “Programs that are targeted by race or gender but do not provide preferences or benefits that are not generally available to all”

The UC has interpreted Proposition 209 decisions as allowing it to conduct outreach targeted by race or gender, as long as the information and benefits provided through those outreach programs are available to everyone.[233] It characterizes this kind of outreach effort as one that “level[s] the informational playing field.”[234] The guidelines also specify that the UC can collect data on race and gender in order to evaluate the effectiveness of its diversity efforts.[235]

2.     “Programs that are not targeted by race or gender but are targeted by factors that support the University’s academic mission and reflect the University’s commitment to diversity and equal opportunity”

The guidelines state that Proposition 209 does not prohibit the UC from considering and placing additional weight on admissions and employment selection criteria that support the UC’s commitment to diversity and equal opportunity.[236] This includes “race-neutral” factors that correlate with race such as income, family education, neighborhood circumstances, and attending a low-performing high school.[237] It also identifies the “ability to contribute to a diverse educational or working environment and/or potential for leadership in increasing equitable access to higher education” as a consideration permissible in selection for scholarships or employment.[238] Specifically, with regards to graduate students, the guidelines state that “[t]he most effective strategy for selecting a diverse graduate student body” is to consider applicants’ potential for contributing to diversity in their graduate careers.[239] In order to evaluate candidates’ ability to contribute in such a way, the guidelines indicate a best practice for graduate programs to ask all candidates for a diversity statement.[240]

3.     “Programs that are about issues relating to race or gender, but open to all”

The guidelines also identify programs that relate to race and gender but are open to all as permissible for the UC to carry out under Proposition 209.[241] Ethnic studies departments, research institutes focused on race or gender issues, and resource guides directed to the needs of people of a particular race or gender are examples of what this type of program can look like, as long as the benefits of the program are available to any interested individual without regard to race or gender.[242]

4.     “Programs that are targeted by race or gender, but are operated and managed by private, non-University organizations”

Proposition 209 made clear that the affirmative action ban would apply only to state actors.[243] Therefore, private organizations can provide educational benefits targeted by race or gender. The guidance states that the UC can provide “routine assistance” to those private organizations.[244] The guidelines identify three requirements UC campuses must meet in order to carry out this support: (1) any assistance must be provided on a nondiscriminatory basis, (2) the UC cannot control or administer the private organization, and (3) the UC cannot be involved in choosing recipients of the organization’s benefits.[245] Examples of support the UC can provide to private organizations carrying out race- or gender-based initiatives include providing information (such as lists of all consenting students with the characteristic the group aims to target) or facilities in which organizations can conduct their activities.[246]

5.     “Programs that fall under an exception to the requirements of Proposition 209”

To the extent that there are diversity programs that apply for or receive federal funds, the UC is permitted to use gender- or race-based criteria to become or remain eligible for that federal funding.[247] The UC identifies these programs as falling within the federal funding exception included in Proposition 209.[248]

C.    The University of California’s Efforts to Increase Student Body Diversity After Proposition 209

Since Proposition 209’s initial implementation, the most selective UCs have significantly increased racial diversity among students.[249] After over 20 years of efforts to ameliorate the impacts of Proposition 209 on racial diversity, the UC admitted its most diverse undergraduate class ever in 2021 with 43 percent of students being from underrepresented racial and ethnic groups.[250]

However, while the UC has become more diverse, “freshman enrollment at the University has not kept pace with the state’s diversity.”[251] Since 1998, there has been a persistent 20–25 percent gap between the number of underrepresented minority students graduating from California’s high schools and the number enrolling as freshmen at UC campuses.[252] And while overall system diversity has increased, the UC’s gains in diversity at its most selective campuses have not matched the system as a whole.[253]

The following section will review some of the major steps the UC has taken in response to Proposition 209, including changes in admissions, increases in outreach, and new initiatives to achieve greater racial diversity. This Section will specifically focus on changes in undergraduate admissions and outreach, since those changes were the most visible, the best recorded, and the most impactful in terms of number of students affected.

1.     Changes to Admissions Policies

Since Proposition 209 took effect, the UC has made several changes to its admissions process and criteria aimed at increasing student body diversity. These changes include shifting to a holistic review process, implementing a local percentage plan, and dropping the standardized test score requirement. While these measures have been beneficial, their limitations have prevented the UC from achieving its desired levels of racial diversity in its student body.

Prior to 2001, the UC required that a significant portion of students be admitted based solely on their grade point average (GPA) and standardized test scores.[254] After repealing SP-I and adopting a diversity statement asserting the UC’s commitment to student body diversity, the UC Regents replaced its admissions policy with a “comprehensive review” policy.[255] This policy, which the UC described as a “measure to increase diversity,” recommended that schools broaden the factors they consider in their admissions process.[256] It recommended that schools consider an applicant’s life experience, neighborhood, school, improvement in academic performance, special talents or skills, and more, in addition to grades and test scores previously considered.[257] In 2011, the UC Regents recommended that campuses use holistic review, which asked reviewers to score applicants “based on a thorough evaluation of all the information and achievements in the applicant’s file in relation to opportunities and challenges present.”[258] In this process, “[n]o single factor [was] given a fixed weight and applicants’ academic and personal achievements [were] balanced with other pertinent qualifications in the context of the resources and opportunities available to them.”[259] Again, the UC described this change to its admission policy as an “effort to increase diversity.”[260] Additionally, the UC Regents introduced “Augmented Review” in 2017.[261] This allowed campuses to request supplemental information from students who were within the margins for admission, but “whose initial application yield[ed] an incomplete picture of their qualifications or present[ed] extraordinary circumstances that invite further comment.”[262] The augmented review policy provided that campuses may request more information from an applicant where the application “fail[ed] to adequately explain the impact of what appear to be major disadvantages that the applicant has encountered.”[263] It further explained that evidence of significant academic improvement accompanied by participation in educational outreach programs and evidence of lack of access to college preparatory courses could serve as criteria to refer an applicant for augmented review.[264] This policy allowed application readers to gain more context on a student’s background and the “major disadvantages” they encountered, creating an opportunity for academically qualified students who may not have otherwise been considered for admission.[265]

After adopting its diversity statement and repudiating SP-I in 2001, the UC Regents also implemented a new eligibility policy for California students aimed at increasing student body diversity.[266] Previously, California high school students were guaranteed admission to at least one UC if their GPA and standardized test scores placed them in the top percentage of all high school graduates in the state.[267] The 2001 policy, entitled “Eligibility in Local Context” (ELC), provided that the top 4 percent of students at each high school would be guaranteed admission to at least one UC.[268] In 2012, the UC expanded this policy to the top 9 percent of each high school class.[269] The ELC policy was implemented to increase the pool of UC-eligible students in California and reach high schools that had previously not sent many students to the UC.[270] It aimed to “recognize and reward the academic accomplishment of students who made the most of the opportunities available to them.”[271]

These changes to admissions policies were not sufficient to counteract the decline in racial diversity at the UC after Proposition 209.[272] A report from 2010 revealed a “disturbing persistence of low African American admit rates.”[273] Even after the UC began to use holistic review in 2011, admission rates for African American and Native American students have remained relatively flat.[274] While the ELC program has increased geographic diversity, it has not substantially increased the racial diversity of students admitted to the UC and has had a particularly minimal impact at the most selective UC campuses.[275]

Most recently, the UC eliminated the use of standardized tests in admissions. This change took effect for the entering class of 2021.[276] Because the change was implemented at the same time as the pandemic-related suspension of letter grade requirements, it is not yet clear what effect this change has had on student body diversity.[277]

2.     Changes to Outreach

In the immediate aftermath of Proposition 209’s passage, the UC also made efforts to increase its outreach. When the UC Regents passed SP-1, they also established an Outreach Task Force to “develop proposals for new directions and increased funding . . . [to] increase the eligibility rates of those [who are] disadvantage[d] economically or in terms of their social environment.”[278] The task force identified a four-part strategy for the UC to increase diversity through outreach: (1) intensive work with regional partner schools, (2) expansion of existing effective academic development programs, (3) creation of an aggressive program of informational outreach, and (4) development of a research and evaluation team to oversee the progress of the outreach efforts.[279]

The main outreach programs conducted at the UC fall under the Student Academic Preparation and Educational Partnership (SAPEP).[280] Prior to Proposition 209, the focus of these programs was largely academic development for underrepresented minorities with low rates of UC eligibility.[281] To that end, the programs targeted students based on race and ethnicity.[282] Before the affirmative action ban took effect, SAPEP programs collectively served around 50,000 students, around 90 percent of which were underrepresented minority students.[283]

After Proposition 209, the UC was required to change its outreach strategy to comply with the law.[284] Rather than targeting students based on race, the SAPEP programs shifted to a broader focus on “educationally disadvantaged students and the schools they attend.” This required the programs to cast a wider net since they were unable to explicitly target underrepresented students based on race or ethnicity.[285]

Today, the SAPEP programs provide academic advising, academic enrichment (e.g., tutoring, summer classes), college entrance exam support, and college information programs.[286] In total, there are thirteen programs under SAPEP that all aim to raise achievement levels among targeted student groups across California’s public schools.[287] Some of the SAPEP programs place specific emphases on subject matter areas: Mathematics, Engineering, Science Achievement (MESA) provides academic support with a focus on mathematics and science,[288] while Puente focuses primarily on English language arts skills and incorporates a strong counseling component.[289]

Immediately after the passage of SP-I, the UC doubled its investment in these outreach programs from $60 million to $120 million annually.[290] While this investment increased the reach of these programs, there is limited evidence of any meaningful impact on racial diversity at the UC.[291] Researchers evaluating the SAPEP programs as race-neutral alternatives to affirmative action in admissions have concluded that they are not an efficient way to increase URM representation.[292] Targeting the state’s lowest performing schools allows these programs to find the highest concentrations of underrepresented minority students, but those schools rarely serve the students most likely to go to a UC.[293] In fact, most students served by these programs attend California community colleges.[294] So, while these outreach programs perform a valuable service to California’s students generally, they do not appear to meaningfully increase racial diversity at the UC campuses.[295]

In recent years, the UC and several of its campuses have adopted some more explicit and aggressive initiatives aimed at increasing the racial diversity of its student body. These efforts include initiatives to make all of the UC campuses Hispanic Serving Institutions (HSIs).[296] The Department of Education designates a university as a “Hispanic Serving Institution” when 25 percent of its full-time undergraduate students identify as Latinx.[297] Once a university is recognized as an HSI, it becomes eligible for federal grants to assist the university to “expand educational opportunities for, and improve the attainment of, Hispanic students.”[298]

Six of the nine UC campuses are currently designated HSIs: Davis, Irvine, Merced, Riverside, Santa Barbara, and Santa Cruz.[299] UC Berkeley, UCLA, and UC San Diego, the system’s most selective schools, are categorized as “emerging HSIs” with 15–24 percent Latinx enrollment.[300] UC San Diego first announced its goal of becoming an HSI in 2016.[301] In 2018, the UC announced its system-wide Hispanic Serving Institutions Initiative to help UC campuses establish what it means to be HSIs and strengthen the UC’s ability to serve an increasingly diverse population.[302] The same year, UC Berkeley announced its plan to become an HSI by 2027.[303] Two years later, UCLA also announced its plan to become an HSI by 2025.[304] UCSD, UC Berkeley, and UCLA have each established task forces that are charged with creating actionable goals and plans to reach HSI status. The current plans at these schools include increased efforts in student recruitment, yield, and retention, as well as efforts to hire more faculty members who study Latinx issues.[305]

These initiatives have not been challenged as violating Proposition 209. Although there is no case law on this point, these efforts could be permissible under Proposition 209 as “pure outreach”—that is, they do not explicitly allocate a benefit (e.g., admission) on the basis of race.[306] Additionally, because the UCs’ actions are arguably necessary to become eligible for HSI federal funding, these efforts may also fit into Proposition 209’s federal funding exception.[307]

The UC recently announced another initiative: the Native American Opportunity Plan. This program waives in-state tuition and fees for any California student who belongs to a federally-recognized Native American, American Indian, and Alaska Native tribe.[308] The stated goal of the program is to “make college more affordable and accessible for California’s Native American students,” who it identifies as among the most underrepresented groups at the UC.[309] The aid is limited to Native students from federally-recognized tribes because tribal membership is a political status rather than a race or ethnicity under federal law.[310] Thus, the aid is not distributed based on race and does not violate Proposition 209.[311] Because this program was only implemented in the past year, it not yet clear whether it will effectively increase the number of Native students at the UC.

Over the past decades, UC campuses have also begun to adopt initiatives that aim to support specific racial and ethnic groups.[312] These race-conscious initiatives include UC Berkeley’s African American Thriving Initiative,[313] UCLA’s Native American and Pacific Islander Bruins Rising Initiative,[314] and UCSD’s Black Academic Excellence Initiative.[315] While the initiatives vary in their missions, some of their expressed goals include addressing underrepresentation and supporting inclusive and equitable student experiences. While these initiatives involve the explicit consideration of race, they have not been challenged under Proposition 209, and they are likely permissible because they do not involve the allocation of a benefit through admission offers.[316]

Over time, the UC has adopted more aggressive initiatives that target, support, and increase enrollment goals for students of specific races and ethnicities.[317] As the case law has developed over time, the UC has been able to develop its own guidelines based on that case law, providing campuses with more guidance on what initiatives may be permissible.[318] The three categories of initiatives described above appear to fall in line with what is permissible under the case law and the UC Proposition 209 guidelines. Ultimately, with more time to interpret the law, the UC campuses have been able to more creatively implement programs involving race without violating Proposition 209.

IV. Development of a Higher Education Admissions Diversity Ecosystem: The Role of Non-University Actors

Private actors have stepped in to fill in the gap where the University of California is unable to take explicit action to increase racial diversity due to Proposition 209. Part IV of this Note argues that, because the limitations of Proposition 209 apply only to state actors, nonstate actors have developed a higher education diversity ecosystem in the wake of Proposition 209’s passage to fill the void left by the ban on explicit consideration of race in admissions. Because private actors exist outside of the doctrine and function outside of the formal institutions that are typically analyzed, this ecosystem and its impacts are difficult to define and quantify. This Section, therefore, merely begins to identify and explore the actors that make up the ecosystem, as well as the efficacy and implications of this system. Ultimately, this Section argues that in combination with the changes made by the UC, the private ecosystem has played a crucial role in contributing to the gradual increase in diversity at the UC over time.

A.    Defining the Ecosystem

The higher education diversity ecosystem described above developed out of a perceived need for additional race-neutral efforts to increase diversity in higher education after race-conscious admission policies were banned at the UC. The ecosystem is made up of several different types of actors, including student-initiated programs, non-profits, and private philanthropy. This Section will briefly describe the emergence and work of actors in each of these categories.

1.     Student-Initiated Outreach, Access, Yield, and Retention Programs

Though student affinity groups and other race-based student organizations already existed at the UC before Proposition 209 passed, there was a significant increase in the years following the ban.[319] Students, particularly students of color, at the UC in the mid- to late-1990s organized and demanded resources to build more student-led support for current and future students of color at the UC.[320]

After Proposition 209 passed, many student-initiated projects emerged in response to the ban on affirmative action.[321] For example, UC Berkeley’s bridges Multicultural Resource Center was created by five student-run organizations that came together to support students of color in direct response to Proposition 209.[322] The UCLA Student Initiated Outreach Project, which is made up of seven student-led race-based outreach projects, similarly identifies its origin as the passage of Proposition 209.[323] These are just two examples of the many student-initiated projects developed in response to Proposition 209’s passage at every UC campus.[324]

The work of each student-initiated organization is different but can generally be categorized into one of three categories: outreach & access, affinity & cultural, and retention. The following Section will provide descriptions of the work these organizations do, including examples of each type of organization at one of the UC campuses, UCLA.

Outreach and access organizations are a common type of student-initiated project that work directly with K-12 students to provide mentorship and academic support to students of a particular race or ethnicity. For example, Samahang Pilipino Advancing Community Empowerment (SPACE) is an outreach program that provides mentorship for community college students, mentoring and academic support for high schoolers, and conferences and field trips for Pilipino students in the Los Angeles area.[325]

Affinity and cultural groups are another common type of student-initiated project, which serve to create community and, by extension, support the retention of students of color.[326] Many of these affinity organizations take part in recruitment efforts including planning yield events—events meant to attract admitted students to attend that university.[327] These events include affinity admit weekends, where student organizations plan a full weekend of programming and host hundreds of prospective students.[328] These programs can cost over $20,000 per year for food, transportation, programming, space, outreach, and more.[329] The UCLA South East Asian Admit Weekend, one of the yield programs that has been the subject of research and scholarship, successfully gets 60–70 percent of attendees to submit their Statement of Intent to Register each year.[330] These yield events thus play a critical role in getting students to commit to attend a school, contributing to higher enrollment rates of underrepresented minority students.

Lastly, another form of student-initiated race-conscious work include retention programs, which are peer support programs that promote the retention of students of color currently attending the university.[331] The work of these organizations typically includes peer counseling and mentorship, with a focus on empowering students to be proactive in their own education.[332] MECha Calmécac is an example of a student-run retention organization.[333] MECha provides students with many services, including peer counseling and mentorship, gender and sexuality workshops, talking circles, workshops, and an internship offered for academic credit aimed at developing leadership skills.[334] Differentiated from the race-neutral academic support provided by UCLA, these organizations are able to provide cultural community for students.

2.     Community-Based Organizations

Since 1996, the number of nonprofit and community-based organizations whose work supports students of color gaining access to higher education has increased significantly.[335] Though not every organization’s origins can be tied to Proposition 209’s passage, there now exists a large network of organizations not bound by the affirmative action ban that can target race or gender to support college access.[336] This network serves hundreds of thousands of students—far more than the UC is able to serve with its existing outreach programs.[337]

In general, these organizations support young peoples’ access to higher education through programs such as academic tutoring, mentorship, college counseling, and more. One prominent example is the Southern California College Access Network (SoCal CAN). SoCal CAN is a network comprised of over 110 member organizations in the Southern California region that work toward a common goal: “ensuring that underrepresented students can successfully access and complete a postsecondary education.”[338] Similarly, the Northern California College Promise Coalition is an organization with over sixty members, many of which are community-based organizations working to advance equity and access in higher education.[339]

Due to the independent and privately run nature of many of these nonprofit organizations, it is difficult to ascertain how many of these organizations exist in California, how much money they raise and spend to support underrepresented minority students, and how effective they are at achieving that purpose. However, because Proposition 209 does not restrict the actions of nonprofit organizations as it does universities, these organizations are able to step in to carry out the race-based outreach and pipeline initiatives previously undertaken by the UCs.

3.     Private Philanthropy

Prior to the passage of Proposition 209, the UC reported awarding $20 million in financial aid that used race, national origin, or gender as criteria,[340] and it had hundreds of gifts and endowments that provided additional scholarships based on the consideration of now prohibited characteristics.[341] Though the UC interpreted Proposition 209 to prohibit considering race when administering scholarships through the universities, donors and private organizations were still able to consider race when in administering private scholarships.[342]

Because the UC was no longer able to use scholarship money to incentivize and support URM students after Proposition 209, the role of private scholarship became more significant in granting access to URM students who would otherwise be unable to attend a UC. Many private scholarships, both in California and beyond, grant funds based on race.[343] After Proposition 209 went into effect, some scholarships that were previously administered by UC campuses were transferred to private organizations to allow the continued consideration of race.[344] This happened, for example, with the Black Alumni Scholarship and the Iranian American Scholarship at UC San Diego, which have been awarded by private foundations since Proposition 209 was passed.[345]

Additionally, new race-based scholarships were created in response to Proposition 209, acting to fill the gap left by the lack of race-based financial aid coming from the UC itself. Examples of these scholarships include the Berkeley Law Foundation’s Allen E. Broussard Phoenix Fellowship and the Bay Area Minority Law Student Scholarship administered by the Bar Association of San Francisco, both of which name Proposition 209 as the reason for their creation.[346]

Other scholarships express an intent to address the impacts of Proposition 209, without specifically tracing their roots to its passage. For example, the UCLA Black Alumni Association Winston C. Doby Legacy Scholarship credits its scholarships with “increasing . . . the numbers of African-American/Black students coming to UCLA since the devastating fall resulting from Proposition 209.”[347] UC campuses appear to have also developed relationships with private foundations that grant scholarships based on race. The UCLA Black Alumni Association, for example, received a $1 million donation in 2021 from the UCLA Foundation,[348] which is privately run and thus not a state actor bound by Proposition 209.[349] Notably, however, the foundation “worked closely” with UCLA’s vice provost for enrollment management “to determine UCLA’s areas of greatest need” when deciding where to direct available funds.[350] This is just one example of the relationships that may have developed in the aftermath of Proposition 209 between the UC campuses and private foundations, including those associated with their schools (e.g., the UCLA Foundation).

While the full scope and impact of private philanthropy is difficult to ascertain due to the one-off nature of these private actors, this Section merely begins to shed light on the impact private philanthropy had in filling in the gap left by the end of race-based scholarships from the UCs after Proposition 209.

B.     Implications of the Ecosystem

Though a lot remains unknown about California’s diversity ecosystem, the shift in race-conscious diversity efforts from state actors to private actors caused by Proposition 209 has implications for the future of diversity efforts across the country. While universities were stripped of many of the tools they previously used to pursue racial diversity, the affirmative action ban in California only applied to state actors. Consequently, private actors were able to act outside of the limits of Proposition 209 to attempt to fill the gap left by race-neutral diversity efforts.

This ecosystem of private actors and the UC’s race-neutral efforts have required a massive increase in labor and money put towards student body diversity. Even with these efforts, it still took many years for student body diversity at the UC to approach pre-Proposition 209 levels.[351] Thus, while the public and private responses to Proposition 209 have affected change over time, there are limits to these efforts: when compared to the use of race-conscious admissions, these responses are inefficient, expensive, and less effective. However, because Proposition 209 made the consideration of race in admissions impossible, this system of diversity efforts has been an indispensable part of raising student body diversity levels at the UC. These efforts by universities and private actors are vital to the future of ensuring racial diversity at institutions of higher education across the country.

Conclusion

Proposition 209 caused an immediate and significant drop in the racial diversity of the student bodies at selective campuses of the University of California. Since the affirmative action ban first took effect, great efforts have been made to remedy the immediate decline in racial diversity. The University of California’s efforts to increase racial diversity while remaining within the bounds of the ban, along with the ecosystem of private actors working towards racial diversity in higher education that emerged in the wake of Proposition 209, have been essential to expanding access to underrepresented minority students at the most selective UC campuses. As higher education institutions across the nation look to California as a model of how to continue to admit racially diverse classes without the consideration of race in admissions after the Supreme Court’s decision in Students for Fair Admissions, it is important to understand the role that these efforts have played in helping the UC to recover its racial diversity since 1996.

Appendices

Appendix 1: List of Proposition 209 Cases Decided on the Merits

Please see the PDF version of the Note for access to this Appendix.

Appendix 2: Graphs Displaying the Effect of Proposition 209

Figure 1.

Figure 2.

Copyright © Adriana Hardwicke, J.D. 2024, University of California, Berkeley, School of Law. Thank you to Professor Jonathan Glater for his guidance and feedback throughout the development of this Note. I am also grateful to Joshua Cayetano, Sacha Heymann, and my classmates in the Berkeley Law Education Law and Policy class for their helpful comments and suggestions. Finally, my sincere thanks to the California Law Review editors—Hannah Naylor, Zoe Sun, Thomas Saenz, Justine DeSilva, Drake Goodson, Elvys Morales, Miranda Paez, Kelli Pham Nguyen, and Trisha Tan—for their thoughtful feedback and invaluable edits.

           [1].     Proposition 209 was a state ballot proposition that added the following text to California’s constitution: “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.” Proposition 209: Text of Proposed Law, Cal. Sec’y of State (1996), https://vigarchive.sos.ca.gov/1996/general/pamphlet/209text.htm [https://perma.cc/UM2V-S9Q5].

           [2].     Brief for Petitioner at 70, Students for Fair Admissions, Inc. v. Univ. of N.C., No. 21-707 (U.S. May 2, 2022); Students for Fair Admissions, Inc. v. President and Fellows of Harvard Coll., 600 U.S. 181, 284 (2023) [hereinafter Students for Fair Admissions v. Harvard].

           [3].     Brief for Respondents at 57–58, Students for Fair Admissions, Inc. v. Univ. of N.C., No. 21-707 (U.S. July 25, 2022); Students for Fair Admissions v. Harvard, 600 U.S. at 378 (Sotomayor, J., dissenting).

           [4].     Students for Fair Admissions v. Harvard, 600 U.S. at 284 (Thomas, J., concurring), 378 (Sotomayor, J., dissenting).

           [5].     See, e.g., Michael Blacher & Gabriella Kamran, Following in California’s Footsteps, Inside Higher Ed (Mar. 4, 2024), https://www.insidehighered.com/opinion/views/2024/03/04/chart-future-admissions-look-california-opinion [https://perma.cc/L3WR-VYJD]; Mark Walsh, Will the Ban on Affirmative Action Hurt Diversity? Look to California, EducationWeek (Dec. 4, 2023), https://www.edweek.org/leadership/will-the-ban-on-affirmative-action-hurt-diversity-look-to-california/2023/12 [https://perma.cc/GBQ9-YMZ4]; Erwin Chemerinsky, California Enhanced Diversity Without Affirmative Action. Here’s How., The Hill (July 21, 2023), https://thehill.com/opinion/education/4108619-california-enhanced-diversity-without-affirmative-action-heres-how/ [https://perma.cc/BE8H-55EY]; Mike Madrid & Michelle Aguilar Carlin, How to Recruit a Diverse Workforce; In a Post Affirmative-Action World, Employers Should Learn from California’s Experience, L.A. Times (Sept. 16, 2023), https://www.latimes.com/opinion/story/2023-09-16/affirmative-action-corporations-employers-diversity-california-proposition-209 [https://perma.cc/3GDM-NGWR]; Shirin Ali, California Tried to Warn Us, Slate (Nov. 4, 2023), https://slate.com/news-and-politics/2023/11/affirmative-action-scotus-history-harvard-california-michigan.html [https://perma.cc/JKD4-Y9FG].

           [6].     “Underrepresented minority students” is used as a shorthand for students who are members of racial groups that are underrepresented in institutions of higher education as compared to their share of the population in the United States. As of 2022, this includes Black, Latinx, Native, Pacific Islander, and certain subsets of Asian American students such as Southeast Asian students. See Sylvia Guan, Gaps in the Debate About Asian Americans and Affirmative Action at Harvard, Ctr. for Am. Progress, (Aug. 29, 2018), https://www.americanprogress.org/article/gaps-debate-asian-americans-affirmative-action-harvard/ [https://perma.cc/WL37-QJHU] (discussing the “disparities in attendance among Asian American ethnic subgroups in the University of California system” and pointing to Southeast Asian, Filipino, and Pacific Islander students as underrepresented groups at the UC).

           [7].     Brief for the President and Chancellors of the University of California as Amici Curiae Supporting Respondents at 4, Students for Fair Admissions, Inc. v. President & Fellows of Harv. Univ., Nos. 20-1199, 21-707 (U.S. Aug. 1, 2022); Students for Fair Admission, Inc. v. Univ. of N.C., 600 U.S. 181, 378 (2023) (Sotomayor, J., dissenting) [hereinafter Students for Fair Admission v. Univ. of N.C.].

           [8].     Id.

           [9].     See Zachary Bleemer, Affirmative Action, Mismatch, and Economic Mobility After California’s Proposition 209, Berkeley Ctr. for Stud. in Higher Educ. Rsch. & Occasional Paper Series: CSHE.10.2020 9–17, https://cshe.berkeley.edu/sites/default/files/publications/rops.cshe.10.2020.bleemer.prop209.8.20.2020_2.pdf [https://perma.cc/7QQD-227H].

         [10].     Enrollment at the UC still does not reflect the state’s racial and ethnic makeup, and there remains a significant gap between the number of underrepresented minority students graduating from California’s high schools and underrepresented minority freshman at the UC. See Teresa Watanabe, California Banned Affirmative Action in 1996. Inside the Struggle for Diversity, L.A. Times (Oct. 31, 2022), https://www.latimes.com/california/story/2022-10-31/california-banned-affirmative-action-uc-struggles-for-diversity [https://perma.cc/DJ7T-XEUN]; Undergraduate Students: Admissions and Enrollment, Univ. of Cal., https://accountability.universityofcalifornia.edu/2023/chapters/chapter-1.html#:~:text=This%20gap%20has%20stayed%20in,point%20gaps%20in%20recent%20years [https://perma.cc/5DNU-ZH4V] (last accessed March 5, 2023). While student body diversity has increased, the UC President and Chancellors explained in their Students for Fair Admissions amicus brief that the system “struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity,” and that “African American, Native American, and Latinx students are underrepresented and widely report struggling with feelings of racial isolation.” Brief for President and Chancellors of the University of California as Amici Curiae at 4.

         [11].     Affirmative Action Policies Throughout History, Am. Ass’n for Access, Equity and Diversity, https://www.aaaed.org/aaaed/History_of_Affirmative_Action.asp [https://perma.cc/2EGE-VAPQ] (last accessed Jan. 21, 2024).

         [12].     See Martha S. West, The Historical Roots of Affirmative Action, 10 La Raza L.J. 607, 612 (1998).

         [13].     Id. at 613; Exec. Order No. 11246, 3 C.F.R. § 339 (1965).

         [14].     Dorothy F. Garrison-Wade & Chance W. Lewis, Affirmative Action: History and Analysis, J. of Coll. Admission 23, 24 (2004).

         [15].     See West, supra note 12, at 613.

         [16].     Id at 613–14.

         [17].     Id. at 614.

         [18].     Jerome Karabel, This Moment is the Culmination of a Decades-Long Backlash Against Affirmative Action (June 29, 2023), https://www.nytimes.com/2023/06/29/opinion/supreme-court-affirmative-action.html [https://perma.cc/A5A7-R8WJ].

         [19].     Id.

         [20].     Andrea Guerrero, Silence at Boalt Hall: The Dismantling of Affirmative Action 9 (2002).

         [21].     Id. at 9 n.43.

         [22].     See West, supra note 12, at 618–19.

         [23].     Id.; 45 C.F.R § 80.3(b)(6).

         [24].     West, supra note 12, at 619; 45 C.F.R § 80.3(b)(6).

         [25].     See West, supra note 12, at 619–20.

         [26].     See, e.g., Karabel, supra note 18 (providing examples of prominent journals and newspapers that published pieces denouncing affirmative action policies).

         [27].     DeFunis v. Odegaard, 416 U.S. 312 (1974).

[28].  Id. at 318–20.

         [29].     Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289 (1978).

         [30].     Id. at 289, 407.

         [31].     Id. at 314.

         [32].     See id. at 307–15.

         [33].     See, e.g., Christopher Edley Jr., Ana Henderson, Michal Kurlaender & Eric Grodsky, Introduction—Proposition 209 and the National Debate on Affirmative Action, in Equal Opportunity in Higher Education: The Past and Future of California’s Proposition 209 2–3 (Eric Grodsky & Michal Kurlaender eds., 2010) (explaining the Regents of the University of California’s response to the affirmative action debate).

         [34].     Id. at 2.

         [35].     Regents of the University of California, Special Policy 1, 55 Representations 184, 185 (1995).

         [36].     Id.

         [37].     Edley, supra note 33, at 2.

         [38].     Proposition 209: Text of Proposed Law, supra note 1.

         [39].     California Proposition 209, Affirmative Action Initiative (1996), Ballotpedia, https://ballotpedia.org/California_Proposition_209,_Affirmative_Action_Initiative_(1996) [https://perma.cc/Q5TX-9R8L] (last accessed Jan. 21, 2024).

         [40].     Guerrero, supra note 20, at 99.

         [41].     See Coal. for Econ. Equity v. Wilson, 110 F.3d 1431, 1448 (9th Cir. 1997).

         [42].     Though Proposition 209’s ban applied to all public institutions of higher education in California, the discussion here about its impacts is limited to the University of California schools because the California State Universities and California Community Colleges did not publicly utilize affirmative action policies prior to 1996. Thus, most research and scholarship on Proposition 209’s impact has centered on the UC. See Brian Pusser, The Contemporary Politics of Access Policy: California After Proposition 209, in The States and Public Higher Education Policy: Affordability, Access, and Accountability 121, 135 (Donald E. Heller ed., 2001); Eric Grodsky & Michal Kurlaender, The Demography of Higher Education in the Wake of Affirmative Action, in Equal Opportunity in Higher Education: The Past and Future of California’s Proposition 209 33, 42 (Eric Grodsky & Michal Kurlaender eds., 2010).

         [43].     Bleemer, supra note 9, at 9.

         [44].     At the time, UC Berkeley and UCLA admitted about 35 percent of freshman applicants and UCSD admitted about 45 percent of freshman applicants, making them the most selective UC institutions. UC Santa Barbara, UC Irvine, and UC Davis were somewhat selective, while UC Santa Cruz and UC Riverside were the least selective of the UCs with admission rates of around 85 percent. See Bleemer, supra note 9, at 5; Press Release, UC San Diego, UCSD Announces 1998 Freshman Admissions Data, https://library.ucsd.edu/dc/object/bb1298202f/_2.pdf.

         [45].     Kenneth R. Weiss & Marty Curtius, Acceptance of Blacks, Latinos to UC Plunges, L.A. Times (April 1, 1998), https://www.latimes.com/archives/la-xpm-1998-apr-01-mn-34875-story.html [perma link needed].

         [46].     Id.

         [47].     Freshman Fall Admissions Summary, Regents of the Univ. of Cal., https://www.universityofcalifornia.edu/about-us/information-center/freshman-admissions-summary. [perma.cc needed] (last updated Feb. 27, 2023)

         [48].     Id.

         [49].     Id.

         [50].     Id.

         [51].     Id.

         [52].     Bleemer, supra note 9, at 5.

         [53].     Id. at 10.

         [54].     Id.

         [55].     The UC Regents passed SP-1 in 1995, implementing a UC ban on affirmative action policies which took effect at the graduate level a year before it did at the undergraduate level. See Danny Feingold, Test Tube for a Changing Political Climate, L.A. Times (Oct. 6, 1997), https://www.latimes.com/archives/la-xpm-1997-oct-06-ls-51069-story.html [https://perma.cc/7SNW-K844].

         [56].     Jerome Karabel, The Rise and Fall of Affirmative Action at the University of California, 25 J. of Blacks in Higher Educ. 109, 110 (1999).

         [57].     Press Release, Lujuana Treadwell, Boalt Hall Reports a Substantial Drop in Offers of Admission Made to Minority Applicants Other than Asians, UC Berkeley Pub. Affs. (May 14, 1997), https://newsarchive.berkeley.edu/news/media/releases/97legacy/boalt2.html [https://perma.cc/6U6Q-97VM].

         [58].     Id.

         [59].     Id.

         [60].     Guerrero, supra note 20, at 108.

         [61].     Kenneth R. Weiss, UC Law Schools’ New Rules Cost Minorities Spots, L.A. Times (May 15, 1997), https://www.latimes.com/archives/la-xpm-1997-05-15-mn-58992-story.html [https://perma.cc/JU27-FEGX].

         [62].     Karabel, supra at note 56, at 110.

         [63].     Id.

         [64].     See Alana Pfeffinger, Alicia Fernández, Manuel Tapia, Francine Rios-Fetchko & Janet Coffman, Recovery with Limited Progress: Impact of California Proposition 209 on Racial/Ethnic Diversity of California Medical School Matriculants, 1990 to 2019, UCSF Latinx Ctr. of Excellence & Healthforce Ctr. at UCSF 8–10 (Dec. 2020).

         [65].     See, e.g., Neil Gotanda, Jamila Byati, Susan Berkman & Cherisse Lanier, Legal Implications of Proposition 209 – The California Civil Rights Initiative, 24 W. St. U. L. Rev. 1, 48–62 (1996).

         [66].     Lungren v. Superior Court, 48 Cal. App. 4th 435, 435 (1996).

         [67].     The full Proposition 209 ballot title, summary and label were as follows:

“BALLOT TITLE AND SUMMARY

PROHIBITION AGAINST DISCRIMINATION OR PREFERENTIAL TREATMENT BY STATE AND OTHER PUBLIC ENTITIES.

INTITIATIVE CONSTITUTIONAL AMENDMENT.

Prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin . . . .

BALLOT LABEL

PROHIBITION AGAINST DISCRIMINATION OR PREFERENTIAL TREATMENT BY STATE AND OTHER PUBLIC ENTITIES

INITIATIVE CONSTITUTIONAL AMENDMENT

Generally prohibits discrimination or preferential treatment based on race, sex, color, ethnicity, or national origin in public employment, education, and contracting . . . .”

Id. at 438–39 (emphasis added).

[68].    Id. at 436.

         [69].     Id. at 437.

         [70].     Id. at 441. Though the court found that the ballot description was sufficiently accurate, Los Angeles Times exit polling in the 1996 election showed that 27 percent of those who voted for Proposition 209 also voiced support for “affirmative-action programs designed to help women and minorities,” evidencing that there was likely a fair amount of voter confusion. Jerome Karabel & Lawrence Wallack, Proponents of Prop. 209 Misled California Voters, Christian Sci. Monitor, (Dec. 5, 1996), https://www.csmonitor.com/1996/1205/120596.opin.opin.2.html [https://perma.cc/HP3N-AQ5F].

         [71].     Lungren, 48 Cal. App. 4th. at 442.

         [72].     Id.

         [73].     Ballotpedia, supra note 39.

         [74].     Coal. for Econ. Equity v. Wilson, No. C 96 4024 TEH, 1996 WL 691962, at *2 (N.D. Cal Nov. 27, 1996).

         [75].     Id. The plaintiffs first named the Governor and Attorney General as defendants, then later added the Regents of the University of California. Id.

         [76].     Coal. for Econ. Equity v. Wilson, 946 F. Supp. 1480, 1489 (N.D. Cal. 1996) (quoting Wash. v. Seattle Sch. Dist. No. 1, 458 U.S. 457, 467 (1982) (relying on the political structure doctrine)) [hereinafter Wilson I].

         [77].     Id. at 1450.

         [78].     Coal. for Econ. Equity, 1996 WL 691962, at *2–3 (granting a temporary restraining order against the Governor and Attorney General); Coal. for Econ. Equity v. Wilson, No. C 96-4024 THE, 1996 WL 788375, *2–3 (N.D. Cal. Dec. 6, 1996) (granting a temporary restraining order against newly added defendant, the University of California).

         [79].     Id. at *1.

         [80].     The judge who decided this case, Judge Thelton Henderson, received so many death threats in response to this decision that U.S. marshals had to guard his house. See Hon. Thelton E. Henderson, Berkeley Law, https://www.law.berkeley.edu/research/thelton-e-henderson-center-for-social-justice/who-we-are/hon-thelton-e-henderson/ [https://perma.cc/MCW6-GFZQ] (last visited May 18, 2024).

         [81].     See Wilson I, 946 F. Supp. at 1520.

         [82].     See id. at 1488.

         [83].     See id. at 1489.

         [84].     Wash. v. Seattle Sch. Dist. No 1, 458 U.S. 457, 467 (1982); see also Hunter v. Erickson, 393 U.S. 385, 395 (1969).

         [85].     Wilson I, 946 F. Supp. at 1489.

         [86].     See id. at 1510.

         [87].     Id. at 1490.

         [88].     Id. at 1517.

         [89].     Id. at 1519.

         [90].     Id.

         [91].     Id. at 1520.

         [92].     This case was heard by the three conservative judges who were “considerably on the right of the Ninth Circuit’s ideological center.” See Tim Golden, Federal Appeals Court Upholds California’s Ban on Preferences, N.Y. Times (Apr. 9, 1997), https://www.nytimes.com/1997/04/09/us/federal-appeals-court-upholds-california-s-ban-on-preferences.html [https://perma.cc/6AW6-8UAP] (explaining that two of the judges on the Wilson II panel were appointed by President Reagan and the third was viewed by some legal experts as “one of the most conservative members of the Federal judiciary”).

         [93].     See Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997) [hereinafter Wilson II].

         [94].     Id. at 700.

         [95].     See id. at 709–10.

         [96].     For a discussion of the differences between the district court’s and Ninth Circuit’s equal protection analyses, see David B. Oppenheimer, Color-Blindness, Racism-Blindness, and Racism-Awareness: Revisiting Judge Henderson’s Proposition 209 Decision, 13 Berkeley J. of Afr. Am. L. & Pol’y 229, 236–39 (2011) (arguing that the plaintiffs’ equal protection argument succeeded at the district court because Judge Henderson applied a race-conscious lens to his equal protection analysis, while it failed at the Ninth Circuit because the panel applied a color-blind lens).

         [97].     Wilson II, 122 F.3d at 710.

         [98].     See id.

         [99].     Id. at 710–11.

      [100].     Coal. for Econ. Equity v. Wilson, 122 F.3d 692, 711 (9th Cir. 1997), as amended on denial of reh’g and reh’g en banc (Aug. 21, 1997), as amended (Aug. 26, 1997).

      [101].     Coal. for Econ. Equity v. Wilson, 522 U.S. 963, 963 (1997).

      [102].     Coral Constr., Inc. v. City and Cnty. of S.F., 235 P.3d 947, 947 (Cal. 2010).

      [103].     Id. at 952–53.

[104].  Hunter v. Erickson, 393 U.S. 385 (1969); Washington v. Seattle School District No. 1, 458 U.S. 457 (1982).

      [105].     Id. at 958 (quoting Washington v. Seattle School District No. 1, 458 U.S. at 467).

      [106].     See id. at 959–61.

      [107].     See Coal. to Def. Affirmative Action v. Granholm, 473 F.3d 237, 251 (6th Cir. 2006). This was a challenge similar to Wilson, brought against Michigan’s Proposal 2—a statewide ballot initiative passed in 2006 that amended the Michigan Constitution to ban affirmative action based on race or gender by government actors.

      [108].     Coral Construction, 235 P.3d at 960.

      [109].     Id. at 960–61.

      [110].     Coal. to Def. Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. 2012).

      [111].     Id. at 1135.

      [112].     Id.

      [113].     Id.

      [114].     Id. at 1135–36.

      [115].     Brown, 674 F.3d at 1135.

      [116].     Id.

      [117].     Id.

      [118].     Id. at 1136.

       [119].     Id.

      [120].     Cal. Sec’y of State, supra note 1.

      [121].     Pete Wilson, Ward Connerly & Pamela A. Lewis, Argument in Favor of Proposition 209, Cal. Sec’y of State (1996), https://vigarchive.sos.ca.gov/1996/general/pamphlet/209yesarg.htm. [https://perma.cc/6EPM-G4D8].

      [122].     Fran Packard, Rosa Parks & Maxine Blackwell, Argument Against Proposition 209, Cal. Sec’y of State (1996), https://vigarchive.sos.ca.gov/1996/general/pamphlet/209noarg.htm. [https://perma.cc/S3YC-4DZL].

      [123].     California Legislative Analyst, Analysis of Proposition 209, Cal. Sec’y of State (1996), https://vigarchive.sos.ca.gov/1996/general/pamphlet/209analysis.htm. [https://perma.cc/U6CE-J3VR].

      [124].     For a full list of Proposition 209 cases decided on the merits, see Table 1 in the Appendix.

      [125].     For a full list of Proposition 209 cases decided on the merits, see Table 1 in the Appendix.

      [126].     This framework was created and introduced by Jeffrey Bleich and Mark Conrad as a tool to analyze the conduct that Proposition 209 prohibits and allows. See Jeffrey L. Bleich & Mark R. Conrad, Interpreting Proposition 209 and California’s Developing Case Law on Affirmative Action Education in the Wake of Affirmative Action, in Equal Opportunity in Higher Education: The Past and Future of California’s Proposition 209 11, 26 (Eric Grodsky & Michal Kurlaender eds., 2010).

      [127].     Id.

      [128].     Id.

      [129].     Id.

      [130].     Id.

[131].  “Preferential treatment” in a government program can range from allocating a benefit, conducting outreach, or collecting data based solely on race and gender.

      [132].     See Connerly v. State Pers. Bd., 112 Cal. Rptr. 2d 5, 47-63 (2001); Kidd v. State, 72 Cal. Rptr. 2d 758, 762 (1998).

      [133].     Connerly, 112 Cal. Rptr. 2d at 28.

      [134].     Kidd, 72 Cal. Rptr. 2d at 760.

      [135].     See id. at 770–71.

      [136].     Hi-Voltage Wire Works v. City of San Jose, 12 P.3d 1068 (Cal. 2000).

      [137].     Id. at 1070–72.

      [138].     Id.

      [139].     Id.

      [140].     Id. at 1084.

      [141].     Hi-Voltage Wire Works, 12 P.3d at 1084.

      [142].     Id.

      [143].     See id.

      [144].     See id.

      [145].     Id.

      [146].     Id.

      [147].     See Hi-Voltage Wire Works, 12 P.3d at 1070–71.

      [148].     See id. at 1084.

      [149].     Id.

      [150].     Id. at 1085.

      [151].     Id. at 1091, 1106.

      [152].     Crawford v. Huntington Beach Unified High Sch. Dist., 121 Cal. Rptr. 2d 96, 97 (2002).

      [153].     See id. at 97–98.

       [154].     Id. at 97.

      [155].     Id. at 102.

      [156].     Id. at 102–03.

      [157].     Id.

      [158].     See id.

      [159].     Baez v. Cal. Pub. Emps. Ret. Sys., 188 Cal. Rptr. 3d 649 (Cal. Ct. App., 2015).

      [160].     See, e.g., Schiff v. City and Cnty. of S.F., No.19-cv-03260-YGR, WL 95637 at *2 (N.D. Cal. Jan. 8, 2020) (explaining that Proposition 209 does not apply to race-neutral policies).

      [161].     See L.A. Cnty. Prof. Peace Officers Ass’n v. Cnty. of L.A., No. B151737, 2002 WL 1354411, at *5 (Cal. Ct. App., 2002) (finding that a policy on diversity did not violate Proposition 209 because it “does not establish a gender or race preference,” since it neither mandates preferential treatment or creates quotas or set asides)

      [162].     Connerly v. State Pers. Bd., 112 Cal. Rptr. 2d 5, 30–31 (2001).

      [163].     See id. at 31.

      [164].     Avila v. Berkeley Unified Sch. Dist., No. RG03-110397, 2004 WL 793295, at *1 (Cal. App. Apr. 6, 2004).

      [165].     Id.

      [166].     Id. at *2.

      [167].     Id. at *5.

      [168].     Id. at *4.

      [169].     Am. C.R. Found. v. Berkeley Unified Sch. Dist., 90 Cal. Rptr. 3d 789, 801 (2009).

      [170].     Id. at 794.

      [171].     Id.

      [172].     Id. at 801.

      [173].     Id. at 801–02.

      [174].     See id.

      [175].     Martinez v. Regents of the Univ. of Cal., 83 Cal. Rptr. 3d 518, 549 (2008).

      [176].     Id.

      [177].     Pierce v. Regents of the Univ. of Cal., No. B262545, 2016 WL 892015, at *1 (Cal. Ct. App. Mar. 9, 2016).

      [178].     Id. at *4.

      [179].     See id. at *6.

      [180].     Hunter v. The Regents of Univ. of Cal., No. B148799, 2001 WL 1555240, at *3 (Cal. Ct. App. Dec. 5, 2001).

      [181].     Cal. Sec’y of State, supra note 1.

      [182].     See Sistare-Meyer v. Young Men’s Christian Ass’n, 58 Cal. App. 4th 10, 18 (1997) (dismissing a Proposition 209 challenge of a non-state actor’s program).

      [183].     Hunter, 2001 WL 1555240 at *4–5.

      [184].     Id. at *4.

      [185].     Id. at *5.

      [186].     Id. at *4–5.

      [187].     Id.

      [188].     Cal. Sec’y of State, supra note 1.

      [189].     Id.

      [190].     C&C Construction, Inc. v. Sacramento Mun. Util. Dist., 122 Cal. App. 4th 284, 291 (2004).

      [191].     Id. at 299.

      [192].     Id at 298.

      [193].     Id. at 311.

      [194].     Id. at 310.

      [195].     Coral Const. Inc., v. City and Cnty. of S.F., 235 P.3d 947, 961 (Cal. 2010).

      [196].     Id. at 961–62.

      [197].     Id. at 954.

      [198].     Id. at 961–62.

      [199].     Id. at 962.

      [200].     Id.

      [201].     See id.; C&C Construction, Inc. v. Sacramento Mun. Util. Dist., 122 Cal. App. 4th 284, 310 (2004).

      [202].     Officers for Just. v. City and Cnty. of S.F., No. 97–15140, 1997 WL 770387, at *1 (9th Cir. Dec. 10, 1997).

      [203].     See Am. C.R. Foun. v. L.A. Unified Sch. Dist., 169 Cal. App. 4th 436, 452 (2008).

      [204].     See, e.g., Liam Knox, A National Summit on a Higher Ed ‘Low Point,’ Inside HigherEd (July 27, 2023), https://www.insidehighered.com/news/admissions/traditional-age/2023/07/27/frustration-and-uncertainty-affirmative-action-summit [https://perma.cc/R2BF-V3GZ] (describing the “sense of uncertainty” higher education officials had while awaiting federal guidance on how to comply with Students for Fair Admissions).

      [205].     University of California Office of the President, Proposition 209: Primer on UC History and Impacts 2 (Sept. 17, 2020), https://regents.universityofcalifornia.edu/regmeet/sept20/b5.pdf [https://perma.cc/LT2Z-WDK3].

      [206].     Guerrero, supra note 20, at 100–09.

      [207].     See infra Part II.B.i.

      [208].     See Feingold, supra note 55.

      [209].     Guerrero, supra note 20, at 92.

      [210].     Id.

      [211].     Id. at 93.

      [212].     Id.

      [213].     Id. at 100.

      [214].     Id. at 100–01.

      [215].     Id.

      [216].     Id. at 108.

      [217].     Id.

      [218].     Id. at 105.

      [219].     Id. at 106.

      [220].     Id. at 108.

      [221].     Id. at 110.

      [222].     See infra Part I.B.

      [223].     See Regents Policy 4401: Policy on Future Admissions, Employment, and Contracting (Resolution Rescinding SP-1 and SP-2), University of California, Board of Regents (May 2001), https://regents.universityofcalifornia.edu/governance/policies/4401.html [https://perma.cc/SM6E-QPXX].

      [224].     Id.

      [225].     University of California, Board of Regents, Regents Policy 4400: Policy on University of California Diversity Statement (Sept. 2007), https://regents.universityofcalifornia.edu/governance/policies/4400.html [https://perma.cc/8TBS-GPSR].

      [226].     Id.

      [227].     Id.

      [228].     See University of California Office of General Counsel, Guidelines for Addressing Race and Gender Equity in Academic Programs in Compliance with Proposition 209 1 (2015), https://www.ucop.edu/uc-legal/_files/guidelines-equity.pdf [https://perma.cc/MXE9-ZZDE].

      [229].     See id.

      [230].     See id.

      [231].     See id. at 1–5.

      [232].     Id. at 4–5.

      [233].     See id. at 4.

      [234].     See id.

      [235].     See id.

      [236].     See id.

      [237].     See id.

      [238].     See id.

      [239].     See id. at 14.

      [240].     See id.

      [241].     See id. at 5.

      [242].     See id.

      [243].     See id.

      [244].     See id.

      [245].     See id.

      [246].     See id. at 5, 9.

      [247].     See id. at 5.

      [248].     See id. at 5; Cal. Const. art. I, §31(e).

      [249].     See Brief for the President and Chancellors of the University of California as Amici Curiae Supporting Respondents, Students for Fair Admissions, Inc. v. Univ. of N.C., 600 U.S. 181 (2022); see also Students for Fair Admissions v. Harvard, 600 U.S. 181 (2022).

      [250].     UC Admits Largest, Most Diverse Undergraduate Class, AP News (Jul. 2021), https://apnews.com/article/education-race-and-ethnicity-79f7d0e7eb812ce36538b9e112c38956 [https://perma.cc/N88J-JHAA].

      [251].     UC Office of the President, Opportunity Factors Impacting Undergraduate Student Diversity 5 (2020), https://regents.universityofcalifornia.edu/regmeet/mar20/b6.pdf [https://perma.cc/Y7P9-NNCF].

      [252].     Id.

      [253].     For visual representations of the persisting diversity gap between California’s high school graduates and the UC student body, see Figures 1 and 2 in the appendix.

      [254].     See Brief for President and Chancellors of the University of California as Amici Curiae at 17, Students for Fair Admissions v. Harvard; Students for Fair Admissions v. Univ. of N.C., 600 U.S. 181, 284 (2023).

      [255].     Id. at 17–18.

      [256].     Id. at 13, 17–28.

      [257].     Id. at 18.

      [258].     Regents Policy 2102: Policy on Undergraduate Admissions, Univ. of Cal. Bd. of Regents (amended July 21, 2022), https://regents.universityofcalifornia.edu/governance/policies/2102.html [https://perma.cc/K3YP-PU4Y].

      [259].     Id.

      [260].     Brief for President and Chancellors of the University of California as Amici Curiae, supra note 254, at 13.

      [261].     See UC Office of the President, Discussion Item B5: Proposition 209: Primer on UC History and Impacts, Attachment 2 (Sept. 17, 2020).

      [262].     Id.

      [263].     Regents Policy 2110: Policy on Augmented Review in Undergraduate Admissions, Univ. of Cal. Bd. of Regents (amended July 21, 2022), https://regents.universityofcalifornia.edu/governance/policies/2110.html [https://perma.cc/F3PN-BH7T]

      [264].     Id.

      [265].     See id.

      [266].     Brief for President and Chancellors of the University of California as Amici Curiae, supra note 254, at 15.

      [267].     Id.

      [268].     Id. at 16.

      [269].     Id.

      [270].     Eligibility in the Local Context (ELC) Program, UC Off. of the President, https://www.ucop.edu/enrollment-services/programs-and-initiatives/eligibility-local-context.html [https://perma.cc/2C69-XG9J] (last accessed Mar. 7, 2024).

      [271].     Id.

      [272].     Id. at 18–19.

      [273].     Id. at 18.

      [274].     Id. at 19.

      [275].     Id. at 16.

      [276].     Id. at 19–20.

      [277].     Id. at 20.

      [278].     See infra Part I.B.

      [279].     Outreach Task Force for the Board of Regents of the University of California, New Directions for Outreach 4 (1997).

      [280].     See id.

      [281].     University of California Office of the President supra, note 205, at 5.

      [282].     Id. at 6.

      [283].     Id. at 5.

      [284].     Id. at 6.

      [285].     See id. at 11.

      [286].     William Kidder & Patricia Gandara, Two Decades After the Affirmative Action Ban: Evaluating the University of California’s Race-Neutral Efforts 7 (2015), https://www.civilrightsproject.ucla.edu/research/college-access/affirmative-action/two-decades-after-the-affirmative-action-ban-evaluating-the-university-of-california2019s-race-neutral-efforts/Kidder_PIC_paper.pdf [https://perma.cc/6S69-FPGB].

      [287].     Academic Preparation and Educational Partnerships (SAPEP) Outcomes, Univ. of Cal. (Jan. 10, 2023), https://www.universityofcalifornia.edu/about-us/information-center/sapep_outcomes [https://perma.cc/T98R-VDPX].

      [288].     Kidder & Gandara, supra note 286, at 8.

      [289].     Id. at 9.

      [290].     Id. at 3.

      [291].     Id. at 11–13.

      [292].     Id.

      [293].     Id. at 11.

      [294].     Id. at 12.

      [295].     Id.

      [296].     UC Hispanic Serving Institutions Initiative, Univ. of Cal. Off. of the President (2018), https://www.ucop.edu/hsi-initiative/ [https://https://perma.cc/FAX6-LF9M].

      [297].     Hispanic-Serving Institution: About HSI, UCLA, https://hsi.ucla.edu/about/ [https://perma.cc/53NA-GTFS].

      [298].     Hispanic Serving Institutions, U.S. Dep’t of Ed. (Sept. 21, 2023), https://sites.ed.gov/hispanic-initiative/hispanic-serving-institutions-hsis/ [https://perma.cc/U9S3-UPHT].

      [299].     La Lucha Sigue: The UC’s Role as a Hispanic-Serving Research Institution, Univ. of Cal. 6 (2018), https://www.ucop.edu/hsi-initiative/_files/report-la-lucha-sigue.pdf [https://perma.cc/YSM7-A2YU].

      [300].     Id.

      [301].     How Will we Become an HSI?, UC San Diego Off. for Equity, Diversity & Inclusion, https://diversity.ucsd.edu/initiatives/hsi/hsi-beginnings-and-timeline.html [https://perma.cc/TQ5R-B7X6] (last accessed Mar. 7, 2024).

      [302].     Univ. of Cal. Off. of the President, supra note 296.

      [303].     Hispanic Serving Institution Task Force, UC Berkeley Off. of the Chancellor, https://chancellor.berkeley.edu/task-forces/hispanic-serving-institution-task-force [https:// https://perma.cc/H2UN-B9AT].

      [304].     UCLA, supra note 297.

      [305].     UC Berkeley Chancellor’s Task Force on Becoming a Hispanic Serving Institution, Report to Chancellor Carol Christ (2020), https://chancellor.berkeley.edu/sites/default/files/hsi_report-final2_updated_1-2021_all_names.pdf [https://perma.cc/M2VJ-LS3Q]; UCLA HSI Task Force, Cultivating the Seeds of Change: Becoming a Hispanic-Serving Institution (2022), https://ucla.app.box.com/v/HispanicServingInstitution [https://perma.cc/J7TN-6SYV].

      [306].     See infra Part II.C.1.

      [307].     See infra Part II.C.4

      [308].     Id.

      [309].     Id.

      [310].     Morton v. Mancari, 417 U.S. 535, 554 n.24 (1974).

      [311].     Id.

      [312].     See, e.g., UC San Diego Office of Equity, Diversity, and Inclusion, Initiatives https://diversity.ucsd.edu/initiatives/index.html [https://perma.cc/3VY6-ARA4] (describing equity, diversity, and inclusion initiatives at UC San Diego, including the Black Academic Excellence Initiative) (last visited May 18, 2024); UC Berkeley Division of Equity and Inclusion, Thriving Initiatives, https://thriving.berkeley.edu/initiatives [https://perma.cc/N6YH-HMHC] (identifying UC Berkeley’s “thriving” initiatives including the African American, Asian American and Pacific Islander, and Latinx Thriving Initiative) (last visited May 18, 2024); UCLA Equity, Diversity, and Inclusion, UCLA Native American and Pacific Islander Bruins Rising Initiative, https://equity.ucla.edu/ucla-native-american-pacific-islander-bruins-rising-initiative/ [https://perma.cc/FEP4-KMFH] (discussing the Native American and Pacific Islander Bruins Rising Initiative’s goal of increasing access to UCLA to members of those groups) (last visited May 18, 2024).

      [313].     UC Berkeley Division of Equity and Inclusion, African American Thriving Initiatives, https://thriving.berkeley.edu/initiatives/aati [https://perma.cc/4BWU-9R8R] (last visited May 18, 2024).

      [314].     UCLA Equity, Diversity, and Inclusion, UCLA Native American and Pacific Islander Bruins Rising Initiative, https://equity.ucla.edu/ucla-native-american-pacific-islander-bruins-rising-initiative/ [https://perma.cc/FEP4-KMFH] (last visited May 18, 2024).

      [315].     UC San Diego Office of Equity, Diversity and Inclusion, Black Academic Excellence Initiative, https://diversity.ucsd.edu/initiatives/black-academic-excellence/index.html [https://perma.cc/9VYG-MUVB] (last visited May 18, 2024).

      [316].     See infra Part II.C.1.

      [317].     See supra notes 312–315 and accompanying text.

      [318].     See infra Part III.B.

      [319].     See, e.g., UC Santa Barbara Student Engagement and Leadership, Student-Initiated Outreach Program (SIOP): Our History, https://seal.sa.ucsb.edu/civic-community-engagement/student-initiated-outreach-program-siop [https://perma.cc/PB8Z-URQ5] (describing the organization’s origins as being inspired by Proposition 209); UC Davis Student Recruitment and Retention Center, About, https://srrc.ucdavis.edu/about [https://perma.cc/5UKK-9833] (same); SPACES UCSD, About SPACES, https://spaces.ucsd.edu/about-us/ourstory/ [https://perma.cc/ZQ9L-3DTR] (same); UC Santa Cruz Engaging Education, Our Story, https://engagingeducation.org/our-story [https://perma.cc/HS5X-6T7G] (same); UC Irvine Student Outreach and Retention Center, Our Story, https://soar.uci.edu/our-story-2/ [https://perma.cc/S582-CT4M] (same).

      [320].     See Barbara Ortutay, Well-organized Rally Targets Prop. 209, Daily Bruin (Apr. 17, 1998), https://dailybruin.com/1998/04/16/well-organized-rally-targets-p [https://perma.cc/EB9Z-7WBZ].

      [321].     See Mayra Llamas, Liliana Robles & Fabiola Camacho, Student Initiated Programs: Using a Collaborative Model to Advance Equity, Univ. of Cal., Diversity and Engagement 6 (June 20–21, 2017), https://www.ucop.edu/cap-forum/_files/documents/cap-forum-session-student- initiated-programs.pdf [https://perma.cc/UEF7-459B].

      [322].     See bridges Multicultural Resource Center, https://callink.berkeley.edu/organization/bridgesmrc [https://perma.cc/LVR2-43SH].

      [323].     See UCLA Community Programs Office, About the Student Initiated Outreach Center, https://cpo.ucla.edu/our-work/outreachprograms/ [https://perma.cc/AT7T-LUWD].

      [324].     Every UC campus that existed at the time of Proposition 209’s passage has at least one organization that traces its origins to student organizing in response to the affirmative action ban. These organizations all oversee and provide funding and resources to race-based student-initiated outreach and retention projects. See, e.g., UC Santa Barbara Student Engagement and Leadership, supra note 319; UC Davis Student Recruitment and Retention Center, supra note 319; SPACES UCSD, supra note 319; UC Santa Cruz Engaging Education, supra note 319; UC Irvine Student Outreach and Retention Center, supra note 319.

      [325].     See UCLA Community Programs Office, Samahang Pilipino Advancing Community Empowerment, https://cpo.ucla.edu/sioc/samahang-pilipino-advancing-community-empowerment/ [https://perma.cc/2EAV-B85A].

      [326].     At UCLA, the coalition of these affinity organizations are called the Mother Organizations. See https://www.instagram.com/motherorgs.ucla/?hl=en (last visited May 18, 2024).

      [327].     See UCLA Alumni, Student-Initiated Admit Weekends – Virtual Experiences, https://alumni.ucla.edu/diversity-programs-and-initiatives/students/student-initiated-admit-weekends/ [https://perma.cc/AM3Z-5G6C] (listing various student-led admit events at UCLA).

      [328].     See Johnnie Yaj, The Invisible Labor of UCLA Southeast Asian Student Organizations: Investigating the Work That Goes Behind Enacting Diversity (2020), https://escholarship.org/content/qt78c845q3/qt78c845q3_noSplash_5cab1ed5aa8b665411542f7409ff3400.pdf?t=pze wc8 [https://perma.cc/Z2KH-MFQX].

      [329].     Id. at 63.

      [330].     Id.

      [331].     UCLA Community Programs Office, Student Retention Center, https://cpo.ucla.edu/src/ [https://perma.cc/67GW-5NGR] (last visited Jan. 23, 2024).

      [332].     Id.

      [333].     UCLA Community Programs Office, MEChA Calmécac, https://cpo.ucla.edu/src/mecha-calmecac/ [https://perma.cc/4WWG-QNB2] (last visited Jan. 31, 2024).

      [334].     Id.

      [335].     See, e.g., SoCal College Access Network, https://socalcollegeaccess.org/ https://perma.cc/EL3A-WT9W] (last visited Jan. 24, 2024) (describing the organization’s mission of “increas[ing] the rate at which underrepresented students access and complete post-secondary education as an alliance of over one hundred nonprofits in Southern California); Northern California College Promise Coalition, https://norcalpromisecoalition.org/ [https://perma.cc/2RWY-W4QP] (explaining the organization’s efforts to bring together resources for college access nonprofits in Northern California) (last visited May 18, 2024) (explaining the organization’s efforts to bring together resources for college access nonprofits in Northern California); Black College and Career Access Network, https://www.bluedfoundation.org/college-career-access [https://perma.cc/J69Q-W8ED] (last visited Jan. 21, 2024) (describing the nonprofit’s college and career access work for Black students).

      [336].     See id.

      [337].     See id.

      [338].     SoCal College Access Network, Our Members, https://socalcollegeaccess.org/members/ [https://perma.cc/8UXT-KGDL] (last visited Jan. 23, 2024).

      [339].     Northern California College Promise Coalition, About the NorCal College Promise, https://norcalpromisecoalition.org/about-us/ [https://perma.cc/7RUT-6J5R] (last visited Mar. 7, 2024).

      [340].     UC Off. of the President, supra note 261, at 9.

      [341].     Id.

      [342].     See University of California, Guidelines for Enhancing Diversity at UC in the Context of Proposition 209 6 (2016), https://diversity.ucsf.edu/sites/default/files/2021-09/prop-209-summary-2013.pdf [https://perma.cc/53R5-RWXC].

      [343].     See, e.g., Outside Agency Scholarships, Berkeley Law, https://www.law.berkeley.edu/admissions/jd/financial- aid/types-of-aid/scholarships/outside-agency-scholarships/ [https://perma.cc/J69Q-W8ED] (last visited Jan. 21, 2024); Reese Lopez, Scholarships and Financial Aid for Minority Students, Affordable Colleges (Sept. 14, 2023) https://www.affordablecollegesonline.org/financial-aid-for-minorities/ [https://perma.cc/M26V-3LYY ]; HACU Scholarship Program, Hispanic Ass’n of Colleges and Univs., https://www.hacu.net/hacu/Scholarships.asp [https://perma.cc/Q9HM-L55P] (last visited Jan. 22, 2024).

      [344].     SDF, How UCSD Black Alumni Scholarships Increase Classroom Diversity, San Diego Found. (Feb. 11, 2020), https://www.sdfoundation.org/news-events/sdf-news/ucsd-black-alumni-scholarships-increase-classroom-diversity/ [https://perma.cc/HF2K-E279]; About IASF Organization, Iranian Am. Scholarship Fund, https://iasfund.org/about-iasf/ [https://perma.cc/MQV8-NZ44] (last visited Mar. 7, 2024).

      [345].     San Diego Found., supra note 344; Iranian Am. Scholarship Fund, supra note 344.

      [346].     Allen E. Broussard Phoenix Fellowship, Berkeley Law Found., https://berkeleylawfoundation.org/phoenix-fellowship/ [https://perma.cc/2PN4-JJXL] (last visited Mar. 7, 2024) (“the Phoenix Fellowship was created in response to Prop 209”); Bay Area Minority Law Student Scholarship Program, Just. & Diversity Ctr. of the Bar Ass’n of S.F., https://www.sfbar.org/jdc/diversity/scholarship-program/ [https://perma.cc/5WZZ-VVSQ] (last visited Mar. 7, 2024) (“Our scholarship program was established in 1998 in response to the passage of SP-1, the University of California Regents’ resolution to end affirmative action and race-based admissions at UC schools.”).

      [347].     UCLA Black Alumni Association, Winston B. Doby Legacy Scholarship, https://connect.admission.ucla.edu/UBAADobyLegacyScholarship.pdf.

      [348].     Cheryl Cheng, Stepping Up: UCLA Foundation Gives $5 Million for Student Financial Aid, UCLA Newsroom (Jan. 5, 2021), https://newsroom.ucla.edu/stories/ucla-foundation-financial-aid-5-million-gift [https://perma.cc/S3G6-ED8W].

      [349].     UC Campus Foundations Detailed Frequently Asked Questions, Univ. of Cal.  (June 2019), https://www.ucop.edu/institutional-advancement/_files/campfoundfaq_detail.pdf [https://perma.cc/8SRM-KEZF].

      [350].     Cheng, supra note 348.

      [351].     See Figure 1, Appendix.