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Reversing Course 

A broad repudiation of Prop. 209 surfaces at Berkeley

Wednesday, Dec 9 1998
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When a group of UC Berkeley students and professors walked out of their classes for two days in late October to protest Proposition 209, they formed a checkerboard of sit-ins on Berkeley's Sproul Plaza. A curious visitor, passing from group to group, could hear about the "prison-industrial complex," the CIA's role in smuggling cocaine, and the unnatural effects of capitalism on La Raza since Columbus' arrival.

Each sit-in's lesson amounted to a rationale for reviving affirmative action: This is what minorities endure, this is why Prop. 209 -- which outlawed race and gender preferences by the state in 1996 -- should be reversed.

The movement to upend it is being led, more or less, by a professor of ethnic studies at Berkeley named Ronald Takaki. He's drafted a "California Equality Initiative," which reverses the language of Prop. 209 almost word for word.

Takaki wanted to place his initiative on this November's ballot, but tabled that idea and threw his support behind a group of Boalt Law students who were gathering signatures for their own measure. The Boalt initiative faltered, another disorganized movement by Berkeley undergraduates, and for now Takaki's text remains the strongest measure yet drafted to bring affirmative action back to state institutions and universities.

The difference between his approach and that of the students is one of scope. While the students have focused on restoring affirmative action only in college admissions, Takaki's draft includes state employment and contracting. "I want to completely overturn 209," he says.

Takaki, in fact, wants to go even further than that. His initiative calls for the state to consider not only race and gender, but also socioeconomic class when deciding who to admit to state colleges or put on the public payroll.

(The full text of Takaki's measure reads: "In order to act affirmatively in promoting equality of opportunity, it shall be lawful for the state to consider race, gender, or socioeconomic class disadvantage in the selection of qualified individuals for university admission, employment and contracting. This law does not permit the use of quotas, but does allow the use of considerations based on the above three categories.")

None of the other nascent efforts to reverse 209 have mentioned "socioeconomic class disadvantage," and some argue that by including it Takaki is clouding the issue.

Michael Trevino, an assistant dean at the Richard & Rhoda Goldman School of Public Policy, spoke at one of the recent teach-ins, and rejected the (usually conservative) distinction between class and race. "People that make the argument [that inequality is a class issue] miss the point," he says. "The reason we're having this discussion is because we value diversity. It's about diversity and what goes on in the classroom."

But Takaki says he sees a shortage of working-class white students at Berkeley, kids who might be "disadvantaged because of low SAT scores, or because they can't take Advanced Placement courses." He wants his initiative to apply to everyone, and his favorite adage in this debate comes from Lincoln: "If we believe that we belong to a nation 'founded and dedicated to the proposition of equality,' we have to open it up to equality not only in terms of race and gender, but also class," he says.

Oddly, though, Takaki's language about class may not even be necessary. Eugene Vololkh, an acting professor of law at UCLA, helped draft Prop. 209. Vololkh carefully analyzed Takaki's initiative in a recent phone interview. "The universities already can consider socioeconomic background. Nothing in 209, nothing in the federal Constitution, nothing in state or federal law prohibits them. We don't need a Takaki initiative in order to allow this. In fact, 209 supporters have long argued that socioeconomic status should be considered," he says.

Vololkh explained the mechanics of both race and class consideration in UC admissions. "Pre-209, each school had its own table that said you get this many points if your parents make below this amount of money, you get this many points if your parents didn't graduate from high school, this many points if they graduated from high school but not from college, and also this many points if you're black or Chicano, fewer points if you are Latino but not Chicano, and a few points if you are Filipino, etc. That was their numerical system. Post-209, race was just thrown out of that. ... Now, UCLA Law School has set up a very thorough, and I think quite worthy, system of consideration of socioeconomic status. And that is a big factor in our admissions."

Boalt Law has also made changes since 209 was passed. Its admissions office has stopped factoring extra points into GPAs from top undergraduate schools like Harvard and Yale, on the theory that those extra points were affirmative action for the rich. Takaki would like to see the UC undergraduate system scrap its extra grade point for Advanced Placement classes, too, because of the advantage this tends to give to kids from suburban high schools, which offer more AP classes than inner-city schools. He'd also like to see the system of SAT-style testing scrapped because the scores, he says, select for family income more effectively than for merit.

"We need to question exactly what our standards are," says Takaki, and here he agrees with the students who walked out in October. "What do we mean by 'merit'?"

So far, the California Equality Initiative has no petition circulating, and Takaki himself isn't playing activist. He's inviting any organization with the resources to file the appropriate papers in Sacramento and gather the 750,000 signatures needed to place his measure on the ballot in 2000. "I would not even have to be footnoted," he says. "I just thought that if two Hayward State professors could write an anti-affirmative action initiative, there should be a Berkeley professor capable of writing an initiative for affirmative action."

Suppose the CEI passed, though? What would happen in court? Challenges to Prop. 209 last year were brusquely dismissed by U.S. Supreme Court justices. How would it deal with language canted the other way?

"It seems to me," says Vololkh, "that if the voters of California want to repeal Prop. 209, they would be just as constitutionally entitled to do that as they were to pass 209 in the first place." But as it's currently drafted, he says, the new initiative wouldn't completely overturn 209. "Takaki says university admissions. But Prop. 209 applies to public education. ... It bars a consideration of race in, let's say, K-12 admissions. It bars consideration of race in [public] scholarship decisions. This initiative wouldn't apply to that."

Takaki admits he didn't spend as much time honing his initiative as the drafters of Prop. 209 did; it isn't streamlined for the courts. In fact, he believes that five out of the nine Supreme Court justices are borderline supporters of affirmative action, and that a referendum on the issue in a state as large as California could press them to swing their votes. "I'm not concerned about the Supreme Court," he says. "I don't think, for democracy, we should depend too heavily on the courts, huh? The people themselves should be able to make decisions, about themselves and their government."

Tom Wood, one of the Hayward State professors who drafted 209, is naturally skeptical about the CEI's chances. He calls 209's success at the polls "extraordinary," because voters tend to be conservative about voting in any new law. "And when something's been on the ballot already you have an even stronger head wind. People say, 'We already voted on this, get out of here!' " Wood says.

But that's what Takaki wants. "This initiative would stir up California," he says. "What would be important is that this would be a vote in California, in the year 2000, and I think this will also influence the presidential election. It would force the candidates to take a stand on affirmative action.

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