What Would Ending Affirmative Action Mean In Colorado?

If a proposal to end affirmative action in Colorado makes it to the ballot in November of 2008, and voters adopt it, Colorado can look to the impacts in California, Washington State and Michigan, where similar proposals have been adopted, to assess its likely impact.Higher Education

The University of Colorado at Boulder, like other public colleges and universities in Colorado, has an affirmative action policy.

If the experience of other states discussed below, is any indication, the impact of an anti-affirmative action proposal will be greatest at the flagship public institutions in Colorado, the University of Colorado at Boulder, and Colorado State University at Fort Collins.  The selective Colorado School of Mines may also see a significant impact.

Colorado Public Contracting

The 10th Circuit Court of Appeals upheld affirmative action in Denver’s public contracting under a 1992 ordinance in a 2003 decision which the U.S. Supreme Court declined to review.

Even if this measure passes, it isn’t clear that Denver’s ordinance would be impacted, because by its terms, the measure applies to “the state” and state level laws don’t always apply to home rule cities like Denver.  In all likelihood, the application of the measure to Denver would result in a lawsuit over Denver’s home rule powers.

A measure that banned cities from passing gay rights laws, calling the issue one of statewide concern, passed in Colorado in 1992, but was ultimately held unconstitutional by the U.S. Supreme Court in 1996.

A state effort to control Denver’s regulation of guns was also partially invalidated by the courts in 2003.

The California Experience

California Proposition 209, a similar 1996 measure passed by voters in California,  and a legal challenge to it failed.

Proposition 209 reduced state contract awards to minority business enterprises by major impact on the ethnic make up of the University of California higher education system:

Asian-Americans – 14.1 percent of California’s 2005 high school graduating class – make up 41.8 percent of the freshman class at UC campuses, up from 36 percent a decade ago.

Meanwhile, blacks at 3 percent and whites at 32.2 percent make up smaller shares of UC’s freshman class than they did previously. Latinos account for 16.3 percent of UC freshmen, up from 13 percent a decade ago, but still less than half their 36.5 percentage of state high school graduates.

In response to Proposition 209:

The university system also accepts the top 4 percent of each senior class in California high schools. That policy has tended to benefit poor whites and low-income Asians, said Frances Contreras, an education professor at the University of Washington, whose doctoral dissertation was on the effects of Proposition 209.

The greatest impact of Proposition 209 in California has been at the University of California’s most selective campus at Berkley, on its black and Native American enrollment:

Berkeley’s numbers reflect a more than 50 percent decrease in black enrollment since 1995, the year before Prop 209 was passed. . . . A similar comparison can be made with Native American enrollment rates. UC reports that Native American enrollment has decreased by almost two-thirds systemwide since Prop 209’s passage. . . . At UC Berkeley, that’s not too far from reality. Sixty-three Native American students were admitted in 1995’s freshman class; in 2005, only 14.

The Washington State Experience

Washington State passed initiative 200-I, almost identical in language to the Colorado proposal in 1998.  This produced a dramatic decline in minority enrollment in the first couple of years after its passage, particularly at the state’s two leading research institutions, the University of Washington and Washington State University, although the long term effect was considerably smaller.

The Michigan Experience

In Michigan voters at the November 2006 voted for Proposal 2, to end affirmative action there, three years after the U.S. Supreme Court upheld an affirmative action program at the University of Michigan Law School.  It is too early to determine the impact of Proposal 2, which is still in the process of being implemented.

Three lawsuits have arisen in its aftermath.  One challenges the vote itself, one challenges the constitutionality of the measure (something that was not successful in either California or Washington State), and one seeks to enforce the measure at the University of Michigan.

As in California and Washington State, the impact is likely to be greatest at Michigan’s flagship institution, the University of Michigan at Ann Arbor, and in particular, its highly selective law school.

(Full Disclosure: Andrew Oh-Willeke is a graduate of the University of Michigan Law School.)

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Andrew Oh-Willeke

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