Not Taking No for an Answer | City Journal
ACA7 supporters don t get much if it goes on the ballot and wins approval. In Students for Fair Admissions, the Supreme Court confronted the question of whether colleges and universities can, consistently with the Constitution, continue to grant preferential treatment to students from underrepresented races in admissions for the sake of diversity. The answer: an unequivocal no.
Students for Fair Admissions covers only admissions. In theory, nothing would prevent California s governor from approving dozens, even hundreds, of petitions for exemptions from Prop. 209, so long as they don t involve admissions. But practically, the decision is not just about admissions. The Court s reasoning was broad, and it was not impressed by arguments that research showed race discrimination to be a good thing. It is nearly certain that the same logic will apply to most cases of preferential treatment by race or ethnicity currently viewed as affirmative action. Consequently, every time the governor grants an exemption, major litigation would likely ensue.
For a state facing a $68 billion deficit, that ought to be daunting. As of October 2022, the Student for Fair Admissions litigation had cost Harvard University $27 million and the University of North Carolina $24 million over about a decade. Any individual lawsuit against California may or may not cost that much. But there could be many such suits.
Of course, it s always possible that some of the governor s exceptions will be upheld in court. From a fiscal standpoint, however, that s worse. Over the years, Prop. 209 has likely saved taxpayers over $1 billion. If it is riddled with exceptions, those savings will disappear.
It remains to be seen whether the California Senate will take the plunge and put ACA7 on the ballot. But we ll know soon.
Gail Heriot.