SB 185 Follow Up

Although the passing of Steve Jobs is no doubt the topic of the day, law students should note the passing of another influential thinker: Derrick Bell, often credited as the father of Critical Race Theory. But because theory is boring, I’m going to write about one of the more recent applications of race-conscious thinking: SB 185.

SB 185, which prompted the baking of many tasty treats last week, authorizes the University of California to "consider race, gender, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, in undergraduate and graduate admissions, so long as no preference is given."

The last bit of that is crucial, as Prop 209 prohibits giving "preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin". The obvious question: Can you "consider" race, gender, and other immutable characteristics without giving "preferential treatment"?

As our own Professor Oppy points out, while SB 185's authors intended to push as far as federal precedent in Grutter v. Bollinger would allow, it's unclear how far the definition of "preference" goes under California law. So in the spirit of law school, let's throw out some hypos.

Plus Twenty - What's clearly not allowed is assigning an extra twenty points to students of a particular race. That's the scheme struck down in Gratz v. Bollinger. And it's literally a preference based on race.

Critical Mass - What about letting enough students of a particular minority group in to build up critical mass? Grutter suggests this is OK, but most strategies to build critical mass look a lot like "a sliding point scale of preference" or "preference until we reach a certain quota".

More importantly, Grutter itself suggests such a scheme is a form of "preference" and wouldn't pass muster under California law. 539 U.S. at 342. Grutter says that critical mass can be a sufficiently compelling purpose for allowing racial preference, but Prop 209 bans preference altogether.

Hardship - What current law clearly does allow is consideration of hardship. Suppose an applicant writes a personal statement about being the only Latina in an all-white school, and about her difficulties in overcoming stereotypes, cultural barriers, and so forth. While her Latina identity is a crucial part of her story, the overall theme is about overcoming hardship, not race.

But it's unclear whether SB 185 really adds anything here. Personal statements and concerns about hardship are fuzzy. Admissions officers can already argue they simply found one statement more persuasive than the other. The fact the most persuasive statements tended to be about overcoming racial hardship? Coincidence.

Eminem and Yao Ming - In the above examples, the applicant is affirmatively raising the issue of race. What if the applicant doesn't raise the issue though? For example, suppose a white rapper or an Asian basketball player apply, but don't explicitly mention how their race has affected these activities. May the University assume that white rappers have more to offer than black rappers? Or that Asian basketball players are more likely to experience hardship than black players?

Or more likely, may the University discount the effect of low SAT scores for a particular minority group because those minorities have historically scored below average on standardized tests?

This looks like preference to me, but it's not the same kind of preference as a simple +20 points for minority students. Rather, it looks like a set of multiple constantly shifting preferences, the overall effect of which is somewhat unpredictable. If SB 185 makes it to the courts, I'd expect that it's these sort of concerns that give judges the most trouble.

From a public policy perspective though, is this what we want? I'm a huge fan of diversity in theory. But I get queasy thinking about admission officers making some subjective valuation of white rappers vs. Asian basketball players. Or Mormon civil rights activists vs. lesbian ROTC cadets. Turkish English majors vs. Native American nuclear physicists. For all our concerns about correcting old biases, this also creates a lot of room to hide new ones.

Thoughts?

Update: Jerry Brown has vetoed SB 185.