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Abstract
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 selfprescribed limits under Proposition 209, and (2) the hidden ecosystem of private actors acting outside doctrinal limits to increase diversity in higher education.