Litigation is a tough business: plaintiffs and defendants jockey for advantage and exploit any facts they can muster to promote their arguments. Most of the time, this is par for the course; lawyers are paid to win.
But in litigation involving public institutions where contentious and nuanced policy matters are at issue, the public good is undermined if they exhibit more concern about legal maneuvering than accuracy and honesty.
That was dramatically demonstrated in the brief filed by the University of California in the just-decided U.S. Supreme Court case Schuette v. Coalition to Defend Affirmative Action. The court ruled in favor of a Michigan voter initiative - patterned after California's Proposition 209 adopted in 1996 - that banned the use of racial and ethnic preferences in admissions to public higher education.
The UC brief urged the court to allow preferences in Michigan since it claimed that the UC's experience with Proposition 209 over the past 18 years has "dramatically reduced diversity on UC campuses" achieving "limited and disappointing results" from the administration's best efforts over the past 18 years.
UC's brief blatantly misrepresented the data it offered and their implications. Its spin-doctoring has, unfortunately, become the given wisdom on the UC's record of achieving diversity since 1996.
The fact is that the UC campuses have done an admirable job in increasing minority participation and, with but a couple of exceptions, minority admissions exceed the shares that existed when preferences were in place. Underrepresented minorities are now qualifying on their merits without needing special preferences to make the grade. Additionally, UC is more diverse than it has ever been, with more socioeconomically disadvantaged students enrolled than any comparable school in the country.
Unfortunately, the leaders of the UC have chosen to hide, dismiss and obfuscate these successes.
A few examples:
The brief spent pages claiming that Proposition 209 has "dramatically reduced diversity on UC campuses." Their evidence is the comparative applicant data of 1995, pre-Proposition 209, set against 1998 data. Indeed, the proportion of underrepresented minority applicants declined in the first three years after Proposition 209 from 18.9 percent to 16 percent at Berkeley - one of the UC's two most competitive schools. But the court was never told that underrepresented minority applicants today - 16 years later - constitute 32 percent of the applicant pool at Berkeley and 36 percent at UCLA; significantly more than in 1995.
The most mystifying of the UC's lines of argumentation is its assertion that their "race neutral admissions initiatives have had limited and disappointing results." It claim that its multifaceted efforts to diversify just haven't worked. Half a billion dollars spent on "educationally disadvantaged K-12 students" at more than 1,100 public schools (70 percent of the participants in the largest programs are underrepresented minorities), 112 community colleges and training 70,000 public school teachers isn't producing the desired results. Nor are programs that admit the top 4 percent of every public high school graduating class in California, nor the switch to "holistic review" (considering each applicant's "educational and personal circumstances"), nor reducing reliance on standardized admissions tests - the brief asserted that they all come up short.
UC claims that despite these efforts it is still "struggling to achieve sufficient levels of diversity ... though they have some benefits." In an ironic twist, the brief bemoans the fact that "students of all ethnicities" can take advantage of the socioeconomically based programs. Since the programs aren't race-bound, they "are necessarily less effective at changing the racial and ethnic composition of the university's student body than policies that target only underrepresented minorities." UC leaders seem to care less about educating socioeconomically disadvantaged kids of all backgrounds than admitting designated minorities (of any socioeconomic status).
The brief reveals the UC's amorphous "sufficient levels of diversity" that it claims to be striving for: It wants admissions to mirror the percentage of California's underrepresented minority high school graduates. It dismisses the near-tripling of Latino admits to the UC since 1995 - 6,050 to 17,450 (15.8 percent to 28 percent of admits) - since the number is less than the 46 percent (193,516 in 2012) that is the percentage of Latino public high school graduates.
This is a meaningless yardstick; a high school diploma doesn't qualify a student for admission to the UC. In fact, of all those Latino grads only 28 percent (54,157) even took the required courses for UC admission; a statistic that should inspire a serious policy debate, but it's not one that can be solved by affirmative action. The UCs and the Cal State systems admitted nearly 75 percent of all the eligible Latino California public high school graduates in 2013.
The University of California has done an extraordinary job of identifying, preparing, tutoring, admitting and enrolling underrepresented minorities without the crutch of racial and ethnic preferences; it ought not deny the efficacy of its efforts and seek a return to a system that, by nearly every measure, was less effective and extraordinarily divisive. It should instead be trumpeting, not demeaning, its work as the model that other universities across the country can emulate as the nondiscriminatory alternative the Constitution mandates.
David A. Lehrer is the president of Community Advocates Inc., a human relations organization based in Los Angeles. Joe R. Hicks is the vice president of Community Advocates (www.cai-la.org ).