Why Did Prop 16 Fail?

On Election Day, 64.7 percent of Californians backed Joe Biden (according to not-yet-final state figures). He won 8.9 million votes, 4.3 million more votes than President Trump. California is an extremely diverse state: 39 percent of state residents are Latinx, 37 percent are white, 15 percent are Asian American and 6 percent are African American, according to the 2018 American Community Survey.

Those same voters had the chance to approve Proposition 16, which would have restored the right -- taken away by a vote, in a less diverse California, in 1996 -- of public universities to use affirmative action.

The vote was 56.5 percent against Prop 16. All of which raises the question: Why in a diverse, politically liberal state did people vote against affirmative action?

Supporters of the status quo -- or no affirmative action -- were quick to say that the vote proves that the current system is working well.

Gail Heriot, a professor of law at the University of San Diego, has been involved in the fight against affirmative action since the campaign for Proposition 209, the measure that banned it in the state. She was co-chair of the No on Prop 16 Committee.

She noted that the campaign for Prop 16 had far more money than the campaign against it. And that politicians lined up to support it.

"I think California voters voted their conscience on the issue," Heriot said. "People think everyone votes according to their race and sex. Californians reject identity politics."

She added that the University of California system remains a very diverse system. When examining the total number of students it enrolls and graduates, 40 percent are Black and Latinx. She is correct over all, but figures at the University of California campuses at Berkeley and Los Angeles do not support her thesis about the system.

To that point she says, "students were more likely to go to the university campus where they can be competitive and so grad rates have increased."

Yukong Zhao, president of the Asian American Coalition for Education, said, “The resounding rejection of Proposition 16 demonstrates again that we are on the right side of the history."

Fighting for the Asian American vote was a key part of the campaign against Prop 16. While there were prominent Asian American backers of the measure, Zhao noted that many Asian Americans feel that affirmative action in effect legalizes discrimination against them. At Berkeley this year, 42 percent of freshmen are Asian, 21 percent are Latinx, 17 percent are white and 4 percent are Black.

Zhao had a message for politicians in other states. "Going forward, I’d like to warn liberal politicians in California and nationwide: focus your efforts on devising effective measures to improve K-12 education for Black and Hispanic children, instead of introducing racially divisive and discriminatory laws time and again. You have failed in California in 2014, as well as Washington State and New York City in 2019. Asian Americans will fight fiercely and defeat your racist policies wherever and whenever tried," he said. (The reference to Washington State refers to a push to undo a measure similar to Prop 16 there. The reference to New York City involves a proposal for the high schools that award spots based on standardized test scores.)

Those who support affirmative action offered different takes.

Shirley J. Wilcher, executive director of the American Association for Access Equity and Diversity, said via email, "I understand the legislators supporting this measure were hoping that with the recent emphasis on equity and anti-racism, voters would be more open to embracing diversity in higher education, employment and contracting. Obviously, that perception was wrong." (Legislators placed Prop 16 on the ballot.)

Wilcher also said that there may not have been enough time to "educate the electorate" about Prop 16.

"The term 'preferences' is often misused when it comes to affirmative action," she said. "Moreover, the concept of taking race into account, even if it is only one of many factors, has to be clearly explained. There also remains the illusion about meritocracy in higher education admissions. The recent scandals about individuals buying their children's way into colleges are the worst example of that. Many factors are considered when admitting students to competitive institutions, in addition to grades and test scores. Moreover, there is also the notion of the 'zero-sum' game: if you benefit from efforts to overcome the preferences some have enjoyed for centuries, I lose."

The issue of language has been of particular importance with the Latinx population, which stood to benefit from Prop 16.

A poll by the Latino Community Foundation found that a slim plurality of the Latinx population agreed with the proposal (50 percent to 48 percent). However, the poll also asked the voters what they perceived Prop 16 to do. Thirty-two percent believed that voting yes would preserve the status quo and block the consideration of race and ethnicity in admissions.

Of those who understood that Prop 16 would allow such consideration, a clear majority -- 65 percent to 34 percent -- was in favor.

Gary Orfield, distinguished research professor of education, law, political science and urban planning and co-director of the Civil Rights Project at UCLA, said, "the ballot was loaded with intensely fought props," especially a proposal about Uber and Lyft employees and a major tax change.

"There was very little attention given to the affirmative action proposition, which had confusing wording," he said.

Orfield added that "there were few ads -- I never saw one."

In addition, he said, "I think that there was very little organized outreach to Latinos, who will obviously be affected by the result."

Another key fact about the Prop 16 campaign is that it came amid several campaigns against affirmative action in the United States. Harvard University won a lawsuit brought against it last year over its use of affirmative action in admissions. But an appeal of that case is pending before the U.S. Court of Appeals for the First Circuit. A similar suit against the University of North Carolina at Chapel Hill goes to trial today. And the Justice Department has sued Yale University over its use of affirmative action.