The U.S. Supreme Court will hear arguments Tuesday in a challenge to a voter-approved Michigan law that bans the use of gender and race preferences in public programs. Voters passed a similar ban in California in 1996, Proposition 209, and critics blame it for lower rates of Latino, African-American, and Native-American students at public universities. We’ll preview the arguments for and against overturning affirmative action bans.

Margaret Russell, professor of law at Santa Clara University School of Law
Ralph Kasarda, attorney at Pacific Legal Foundation who successfully defended Proposition 209, California's ban on racial preferences
Marcia Coyle, chief Washington correspondent for the National Law Journal; and author of "The Roberts Court: The Struggle for the Constitution"

  • Kezia Snow

    Is this to be strictly a numbers game? If so, then Asians are vastly over represented at UC Berkeley (39%) and whites are under represented (29%). Any fix should take these numbers into consideration.

    • Frank Yang

      leave us asians alone! we never do no evil, why you always pick on us because we have no political clout? why?

  • William – SF

    If one wants to note the effects of racial bias in our society, one only needs to note the color of those at the top and bottom of society’s income ladder, note the racial makeup of residents of poor/disadvantage neighborhoods and those in affluent neighborhoods, make note …, it’s easy, make note of the distribution of color in our society.

  • amyj1276

    I’m surprised to not hear anything about the relationship between race and socioeconomic status. The discussion about affirmative action is not simply about race, and there’s no question that those who are poor and in low-quality schools and have a much steeper hierarchy of needs happen to also be black and latino in California. So to say that everyone has equal opportunity to get into higher education is disingenuous at best and naive at worst.

    • Arun

      In every sphere of life, upwards mobility requires hard work and dedication. If a parent of a kid who is poor and goes to a low quality school wishes the kid to have a better chance at a better life, then s/he needs to steer the child towards much more hard work and dedication than the child’s peers.
      If two students have the same GPA, and one of them is from an under privileged background, the choice is a no-brainer. The problem is when you take someone that hasn’t worked hard enough to qualify, and give him/her preference over others that have (worked hard), regardless of background.
      Yes, as a society, we have a responsibility to ensure a level playing field for the next generation. But that does not mean reverse discrimination; that means we should find ways to help those under-privileged kids achieve academic equality with everyone else. One way to do that – the government / society could rope in well-qualified tutors to provide free after-school education to those kids. Make under-privileged kids “deserve” the preference they are given – that will help ensure a better “next generation”.

  • Two comments: (1) The fact is that the great public universities, including both the University of California Berkeley and the University of Michigan, have practiced affirmative action with regard to gender since the 1960s, with less “qualified” men being admitted at the expense of more “qualified” women. Going strictly by test scores and grades, many public universities would have 60% women and 40% men. This brings up comment (2), higher education is not a one way street. The university serves the students, but the students also serve the university. The greatest private universities (e.g. Harvard and Yale, undergraduate alma maters of my two kids) reject 75% of high school valedictorians and the majority of applicants with perfect SATs, in favor of admitting students with something to give to the university beyond sheer nerdiness. The college experience goes way beyond the classroom experience — an online Harvard (or Berkeley) education has a fraction of the total educational value as the on campus experience. Most people would acknowledge that a 50/50 gender split provides a superior experience to a 60/40 split. The greatest private institutions (e.g. Harvard/Yale) admit, proportionately, 10 times as many athletes, with lower academic “qualifications,” as in the case of public universities, because athletes, musicians, and the like improve the on campus experience, as do racial and ethnic minorities.

    Universities should have the right to assemble student bodies which best meet the total educational needs of the institution and maximize the value of educational experience for the student body.

    – Larry Weisenthal/Huntington Beach CA

    • erictremont

      re: “Universities should have the right to assemble student bodies which best
      meet the total educational needs of the institution and maximize the
      value of educational experience for the student body.” Ok, but don’t you think there has to be some kind of limiting principle? That seems to be the issue at the center of the affirmative action debate. Bob Jones University, an ultra-right wing college in South Carolina that for years attempted to keep out minority students essentially offered the same argument, i.e., “We have the right to assemble our own student body.”

      • The issue is this: Who “deserves” to be admitted to a public university? The popular misconception is that the students with the best grades and best test scores should be admitted. But a great university education is only partially a classroom experience. The great Ivy League institutions are private. They can admit anyone they wish. They reject the majority of the ostensible nerdiest of the nerdy, in favor of admitting a diverse student body, with talents which extend beyond memorization and test taking ability.

        The institution exists to create a quality education experience for its student body. It doesn’t exist to reward students exclusively for the ability to achieve the highest grades in high school and the ability to score the highest on the SATs. The best explanation that I’ve read for what goes into assembling a quality student body is a New Yorker story:

        Now, the example of Bob Jones University is an odious comparison. The University of California, Harvard, Yale, and Michigan have nothing whatseover in common with Bob Jones University. The former universities don’t need to justify their success; their success is self evident. They have a proven track record of excellence with respect to creating a world class educational experience for their students. Absent evidence of true, systemic discrimination, they should be allowed to go on doing their job. There is no systemic discrimination against any particular class of prospective students at UC, Harvard, Yale, Michigan, et al. The only objective is the creation and maintenance of a diverse student body environment, to the benefit of the overall educational experience for the student body.

        – Larry Weisenthal/Huntington Beach CA

        • erictremont

          I agree that a diverse student body can enrich the college experience, but you also need to consider the abundant and disturbing evidence from the “mismatch” literature, i.e., racial preferences in higher education put a great many students in educational settings where they have no hope of competing (see

          Furthmore, you apparently trust UC to make reasonable choices when it comes to affirmative action but I don’t share your confidence: UC’s track record in matters involving race, ethnicity, and gender is not consistent with standards of transparency or probity (see

          • Your linked article from the (libertarian) Manhattan Institute buries the lede, to wit (direct quote):

            “UC’s campuses are among the most welcoming and inclusive social environments known to man.”

            This is precisely what UC strives to achieve and maintain, with their various and sundry diversity-related programs.

            Is all that (under the table) affirmative action damaging to UC’s long-standing record of excellence?

            In the latest US News & World Report rankings of public national research universities, here are the relevant rankings (out of 117 ranked public universities):

            UC Berkeley #1

            UCLA #2

            UC Davis and UC San Diego #9 (tied)

            UC Santa Barbara #11

            UC Irvine #14

            How about the ranking of the flagship public university from that great libertarian state of Texas?

            UT Austin #16

            Texas A&M #25

            UT Dallas #73

            Texas Tech #88

            What about those “failing underqualified” students and science/engineering faculty? In a massive system of hundreds of thousands of students and thousands of faculty, it will always be possible to find anecdotes and screw ups. There are lots of students with high SATs who flunk and otherwise underachieve. Google and Apple make bad hires, also. So does the Manhattan Institute. But the article would have the reader believe that the UC system is wasting truly massive amounts of money and going down the tubes, all in the pursuit of what the Manhattan Institute considers to be unnecessary diversity.

            What is the total expenditure on everything related to “diversity” as a percentage of the total budget for the UC system? That would be a useful metric. I’m betting that it’s a minuscule percentage, yet the article tries to create the impression that this is a substantial contributor to the budget challenges faced by a UC system where growth in enrollment has far outstripped growth in funding.

            In short, the UC system continues to be the best public university system in the world — as well as being “among the most welcoming and inclusive social environments known to man.” I’d say that the UC administration is doing a pretty darn good job, by fair and objective standards.

            – Larry Weisenthal/Huntington Beach CA

          • erictremont

            I don’t have the space to reply to all of your points, but I disagree with your assertion that the problems I described just represent a small number of “anecdotes and screw ups.” Also, I think you missed one of the key points of the Manhattan Institute article: there are at least 2 UCs: one of them has maintained high standards and a record of significant accomplishments, the other has exhibited a pattern of tone deafness, intellectual dishonesty, and bureaucractic incompetence. The stellar record of UC’s medical schools has not been matched by UC’s ethnic studies departments (to cite just one example). In UC you can find many examples of excellence, and you also can find dreadful examples of dishonesty and moral bankruptcy and much mediocrity. The lousy parts of UC ride on the coat tails of the good parts of UC.

  • David Kelley

    So a certain statement was made over a century ago based on an argument that a species has more ability to survive than others of that species and the cunning and intelligent are more productive than the lesser…it was applied to the human species as well, that the ” more enlighten” , if over whelmed by the lesser intelligent will be a threat to its survival and therefore concidered an ” enemy of the state” Hitler capitolized as well as Carl Marx and many others who concidered their race superior to others and other need to be thinned out or erraticated to survive this philosophy was based on the book ” the origin of species ” by no other than Charles Darwin and is now educated in every single public school and we wonder why there is class segragation to begin with I am pleased that someone is saying no way to this philosophy….against this idea…may the best race win…survival of the fittest…

  • Have these folks not heard of unconscious bias? The data out there is that people of color are disproportionately jobless, poor, incarcerated, and working in low end jobs. The need for affirmative action does not reduce the qualifications of admissions in higher education, it says that two equally qualified individuals will be considered and that the decision is to prefer the underrepresented minority. Its not that hard to see why this is vital to our nation’s future. By 2050, Latinos alone will be one third of the nation’s population. What will this nation do if that many people are not fully engaged in our society. The need to affirm the role of people of color in every element of our society is now.

    • Arun

      If two people are “equally” qualified, then I’m sure that a majority of people would support preference to the under-represented / under-empowered. The question here though is whether someone who belongs to an under-represented / under-empowered background should be given preference regardless of qualification. Where, then, is the incentive for people of either background to excel?

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