Original article can be found on UC Berkeley Law
by andrew cohen
“As a leading public law school at the heart of the UC system here in Berkeley, it made sense for us to have significant representation on this brief,” Quock said. “It’s taken well over a decade to build our minority numbers back up again after Prop 209. We don’t want University of Texas students and applicants to face that same ordeal.”
Plaintiff Abigail Fisher, a white woman, was denied admission to the school in 2008. She filed suit, alleging that the university discriminated against her on the basis of race in violation of the 14th Amendment’s Equal Protection Clause. After the U.S. Fifth Circuit Court of Appeals ruled for the university, which used race as a factor in its admissions, the Supreme Court remanded the case—holding that the Fifth Circuit failed to apply the proper standard of scrutiny.
That standard, articulated in Grutter v. Bollinger (2003), established that race had an appropriate but limited role in public university admission policies. The Fifth Circuit again ruled for the university in 2014, Fisher again appealed, and the Supreme Court heard oral arguments last month. The court’s impending decision could affect universities nationwide.
Learning from recent history
The UC brief warns that banning race and ethnicity as admission considerations at the University of Texas will yield hazardous results—and that race-neutral efforts will not compensate for the loss of students of color normally admitted under affirmative action.
Andrea Obando ’16, co-editor-in-chief of the Berkeley Law Raza Law Journal, said the brief furthered her journal’s goal of helping ethnic minority students “become better advocates for social justice, self-determination and liberation. Many of our members attended California colleges in the aftermath of Prop 209 and saw how it prevented their friends and family from attending California’s best colleges. A handful also attended the University of Texas.”
The journal voted unanimously to join the brief, as did the Asian American Law Journal and the Berkeley Journal of African American Law & Policy—which has published several articles and held conferences on affirmative action in recent years. Editor-in-chief Jonathan Wilson ’17 noted that the year after Prop 209, Berkeley Law had only one new black student. Any public university whose student body fails to reflect its state’s diverse population, he said, “is doing a disservice to the taxpayers who support it and the students who attend it.”
As more universities have rejected affirmative action over the past decade, the UC brief argued that a growing number of campuses “are less hospitable to those underrepresented minority students who do choose to enroll, while simultaneously narrowing their paths to leadership roles.” The aftermath of Prop 209, the brief said, has “vindicated the reasoned position that diversity remains an important component of the educational experience.”
Other Berkeley Law groups on the brief include the Asian Pacific American Law Students Association; Armenian Law Students Association; Berkeley Journal of Gender, Law and Justice; Boalt Hall Queer Caucus; Boalt Hall Student Association; Coalition for Diversity; First Generation Professionals; La Raza Law Students Association, National Lawyers Guild (Berkeley chapter); and South Asian Law Students Association.
“This is an important issue,” Quock said. “The stakes in this case are very high, and will affect how students learn at universities—and who gets to learn there.”