Cal think tank to investigate legal strength of Prop. 209

BERKELEY - A new UC Berkeley think tank will research whether Proposition 209, the state ballot measure that ended affirmative action at California universities, could be challenged successfully in court.

Run by the Boalt Hall law school, the Chief Justice Earl Warren Institute on Race, Ethnicity and Diversity will take on one of the most contentious issues in higher education: whether race should be used as a factor in college admissions.

The institute, to be announced Monday, also will study a broad range of other subjects, including the upcoming reauthorization of the Voting Rights Act and civil rights in K-12 schools. It will be funded mainly through alumni donations and grants.

A written description of the new institute provided to the Times by the law school says the center will research "the legal limits on aggressive efforts to promote inclusion in higher education" and an "agenda to inform future public consideration of revisions or repeal" of Prop. 209.

Critics say Prop. 209 has dramatically hurt minority enrollment in the 10-campus University of California system. They point to a 2003 U.S. Supreme Court ruling that affirmed the constitutionality of affirmative action.

Supporters note that nearly 55 percent of California voters approved the measure in 1996 and say African-Americans, Latinos and other underrepresented minorities should not rely on preferential treatment to succeed.

For a UC campus to consider challenging state law is "ill-advised," said former UC Regent Ward Connerly, Prop. 209's author.

Boalt Hall Dean Christopher Edley and UC Berkeley Chancellor Robert Birgeneau declined to comment on the institute.

Edley, a former Harvard law professor and White House adviser who came to Berkeley last year, will lead the institute. He co-founded the Harvard Civil Rights Project and has spoken many times about bringing a similar model to Boalt Hall.

Birgeneau, who also arrived on campus last year, has said in the past that Prop. 209 unfairly prevents African-Americans, Latinos and other underrepresented minorities from attending the university.

Fewer black students attended UC campuses last year than in 1995, according to UC enrollment figures, and UC Berkeley enrolled nearly 28 percent fewer black freshmen and 14 percent fewer Latino freshmen last year than in 2003.

Ending the racial-preference ban could demand significantly different legal arguments than in the past. A 1996 lawsuit seeking to overturn Prop. 209 failed in a federal appeals court, and the U.S. Supreme Court declined to review the ruling.

Some scholars say the 2003 Supreme Court case, Grutter v. Bollinger, has dramatically changed the legal landscape for challenges to affirmative-action bans. In that ruling, Justice Sandra Day O'Connor wrote for the majority that "student body diversity is a compelling state interest that can justify the use of race in university admissions."

"There's good reason to believe that a legal challenge to Prop. 209 would be successful," said Anthony Lising Antonio, a Stanford University higher education professor. "It's probably a good time to bring these issues back into the public debate."

Regardless of the Warren Institute's conclusion, politics and money could make it difficult to file a lawsuit. The UC Board of Regents would have to approve any suit that includes the university's name, and studies have shown Californians are split over affirmative action.

Some faculty leaders said they wouldn't be surprised if regents declined to approve a lawsuit.

"This would be very, very tricky," said UC Berkeley classics professor Robert Knapp, chairman of the campus Academic Senate. "You have all the negative possibilities of alienating part of the state, and then not winning."

UC Berkeley is "blowing smoke" by considering a legal fight, said attorney Sharon Browne of the Pacific Legal Foundation, which has defended against past challenges to Prop. 209.

"I don't know what UC Berkeley would have left to challenge," Browne said. "What a waste of taxpayer dollars." Matt Krupnick covers higher education. Reach him at 925-943-8246 or mkrupnick@cctimes.com

Well, good let's spend taxpayer dollars trying to thwart the will of the people.
-----
Standard operating procedure -- the libs have ZERO RESPECT FOR THE WILL OF THE PEOPLE, or that AA was deemed UNCONSTITUTIONAL on the basis it is reverse discrimination. But again, the law does not matter to the libs. The law is there to be broken.

A number of years ago, even before standard present-day affirmative action programs were challenged, Boalt was sued by the Justice Department for racial discrimination. Boalt had a quota system where African Americans, Chicanos "certain" Asian groups (euphemistically called "Pacific Islanders," but excluding Chinese and Japanese) were in a separate admissions pool and essentially admitted purely on grounds of race, without having to compete against other candidates. Boalt eventually entered into a consent decree where they agreed to end the quota system for admissions. This was one of the cases that involved the principle that race could be a "factor" in admissions, but not the sole determinant.

The little dirty secret of Berkeley is that for many years it engaged in outright discrimination against Asian admissions, claiming that it would push out the blacks and Chicanos. The rationale was similar to the Ivy League's justification for limiting Jews for many years. After Prop. 209, Asian (not white) admissions at Berkeley sky-rocketed; because of its size and large number of applicants (and thus limited agility to give individualized consideration of applications on other bases) Berkeley traditionally gives heavy weight in admission on pure statistics (GPA and SAT scores). Asians traditionally score at the top in these categories. Berkeley is now something like 60 percent Asian. This drives the lefties at Berkeley crazy, but it would be politically incorrrect to go after Asians so whites continue to be made the scapegoats for "discrimination."

"Some scholars say the 2003 Supreme Court case, Grutter v. Bollinger, has dramatically changed the legal landscape for challenges to affirmative-action bans. In that ruling, Justice Sandra Day O'Connor wrote for the majority that "student body diversity is a compelling state interest that can justify the use of race in university admissions.""

What does that have to do with the constitutionality of Prop. 209? All the Supreme Court said was that racial preferences were allowed under a strict set of rules. It did not do anything remotely like saying that NOT having racial preferences was unconstitutional. Are these people just fooling themselves?

The institute ... will be funded mainly through alumni donations and grants.

Here's one (embarrassed) alumnus who will not be funding this. I often think
California would be better off defunding my "alma mater" and converting the
space to other uses. Except for the possibility of earthquakes using the
Berkeley campus for a nuclear waste dump would help sterilize the place.

"Here's one (embarrassed) alumnus who will not be funding this. I often think
California would be better off defunding my "alma mater" and converting the
space to other uses. Except for the possibility of earthquakes using the
Berkeley campus for a nuclear waste dump would help sterilize the place."

I'm another Boalt alum who's proud to say he's never given a penny to the place. And never will!

Birgeneau, who also arrived on campus last year, has said in the past that Prop. 209 unfairly prevents African-Americans, Latinos and other underrepresented minorities from attending the university.

I agree completely. Prop 209 is positively un-American!! The nerve of Californians to hold minorities to the same standards as everybody else!!!!

/sarcasm

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.