Racial Mascotting

The Real and Imagined Impact of Proposition 209 and SP-1 at University of California Law Schools

In Farewell to Preferences? Stephan Thernstrom reviews the consequences of Prop. 209 and SP-1 for the three Law Schools operated by the Regents of the University of California (UC): Boalt Hall, Davis and UCLA. [1] He ultimately concludes that the end of race-conscious affirmative action at UC Law Schools "has already benefited Asian Americans, who have won 41% more places in the first-year law-school classes than they did the year before." [2]

Thernstrom is certainly correct to look to California to study the consequences of ending race-conscious affirmative action for APA law school candidates, and not only because of Prop. 209 and SP-1. California has far and away the largest APA population of any state, and this extends to law students as well. Thus, if prohibiting race-sensitive affirmative action were to produce any large-scale benefits for APA law students, this would surely be evident in California. For example, in 1998, there were 735 APA first-year students enrolled in California's eighteen ABA-approved law schools, which is over one-quarter of all APA enrollments nationally. [3] Furthermore, the eight undergraduate campuses of the University of California--which are significant feeders to law schools [4]--enrolled a 1999 freshman class where APAs composed 38% of the overall student body. [5] With data now available for three post-affirmative action admission cycles, it is an opportune time to reexamine Thernstrom's claims about the effects of banning race-conscious affirmative action at California's elite public law schools. [6]

A Review of the Aggregate Data

Are APA law school applicants "distinctly better off" [7] applying to UC after Prop. 209 and SP-1? Or is Thernstrom's argument merely model minority mascotting designed to make the resegregation of law schools more politically palatable by deploying APAs as a buffer group? [8] This section will compare admissions data from the three years after Prop. 209 and SP-1 (1997- 1999) with the three years before the ban on affirmative action in California (1994-1996).

In total, figures for three UC Law Schools--Boalt Hall, Davis and UCLA--are presented. The fourth UC Law School--Hastings College of the Law in San Francisco--is not included (nor was it analyzed by Thernstrom) because Hastings did not employ race-conscious admissions prior to Prop. 209. [9] However, since in five of the last six years no UC Law School has enrolled more APAs than Hastings (in part because it usually has the largest class size overall), the footnotes will refer to Hastings admission figures for comparative purposes.

Tables 1 and 2 compare the number of enrolled first-year APAs in the last three years before Prop. 209/SP-1, and the first three years after Prop. 209/SP-1. Each figure in parenthesis is the percentage of each class comprised of APAs. These percentages are helpful in assessing APAs' relative representation, since it is difficult for law schools to calibrate their offers so as to enroll an identical number of students each year. [10]

Table 1: Asian Pacific American Enrollments at Three UC Law Schools Before Proposition 209/SP-1 [11]

Table 2: Asian Pacific American Enrollments at Three UC Law Schools After Proposition 209/SP-1 [13]

Overall, data from three UC Law Schools indicates that there were 405 total APAs enrolled in the three years after Prop. 209 and SP-1, compared with 374 total APAs in the three years prior to Prop. 209 and SP-1. When one controls for APAs' representation as a proportion of the total number of first- year seats, APAs constituted 18.3% of UC Law School classes in 1997-99, compared to 17.4% for 1994-96. Indeed, the very modest gains that APAs made at UC Law Schools might merely reflect, at least in part, continuing application trends in California that would have occurred with or without the ban on affirmative action. [14] Thus, overall, the ban on affirmative action has resulted in negligible gains for APA law students at UC Law Schools. While this data is certainly not evidence of a return to "Fitzgerald's Princeton," neither does it come close to justifying Thernstrom's assertion that when race-conscious affirmative action is eliminated, APAs reap the greatest benefit.

Later in this section I will demonstrate that, in fact, White enrollments have gone up the most at UC Law Schools after Prop. 209/SP-1. Recall Thernstrom's claims that APA enrollments rose 73% at the UCLA Law School after Prop. 209 and SP-1. [15] While this is technically true, it is highly misleading. APA enrollments did increase from 48 in 1996 to 82 in 1997--as indicated in Tables 1 and 2--but much of this is accounted for by the fact that UCLA underestimated the number of admits who would accept offers in 1997. Because UCLA was experimenting with a new class-based affirmative action program, it ended up enrolling its largest class (381) in over a decade. [16] Consequently, UCLA was forced to admit an unusually small class (277) in 1998--including only 49 APAs--in order to compensate for the strains a large class places on the delivery of legal education.

As indicated by Tables 1 and 2, APAs represented 22% of enrollments at UCLA in 1997-99 compared to 20% for 1994-96. Moreover, APAs' net gain in the proportion of first-year seats at Boalt [17] was even smaller, and was slightly negative for UC Davis. Thernstrom's failure to account for changes in the size of UCLA's 1997 class also causes his related claim--that minority enrollment at UCLA went up 18% in the first year after Prop. 209 and SP-1--to miss the mark. UCLA's unusually large 1997 class did indeed include 132 people of color compared to 117 the year before. However, the more significant finding is that people of color comprised 45% of the entering classes of the UCLA Law School in 1994-96 (making it possibly the most racially diverse elite law school in the country), compared to 33% in 1997-99. [18] As will be demonstrated in more detail later in this section, the net result of Prop. 209/SP-1 at Boalt, Davis and UCLA was that enrollments increased substantially for Whites, were essentially unchanged for APAs, and plummeted for African Americans, Latinos and Native Americans.

Unpacking the Composite Numbers: The Example of Filipinos

Appropriately or not, APAs are treated as a monolithic group in the political discourse on affirmative action. Throughout most of this article, I too discuss APAs as a single group. Partly, my choice reflects the reality that the social construct of "Asian Pacific American" imposes conditions upon APAs whereby people from different ethnic backgrounds are treated similarly as "Asians" in U.S. society. [19] It also reflects the fact that admissions data across ABA and UC law schools are not reported by APA subgroup. However, the impact of banning affirmative action can vary between APA subgroups because of heterogeneity based on socioeconomic status, educational attainment, immigration patterns, and so forth. [20]

One example of the adverse impact of Prop. 209 and SP-1 on an subgroup of APA law students is that of Filipinos, who were also recently included as plaintiffs in a suit challenging the fairness of UC Berkeley's post-affirmative action undergraduate admissions policy. [21] Today Filipinos represent one of the largest Asian subgroups in the U.S., [22] yet relatively few American-born Filipinos attend college, much less graduate or professional school. [23] The fact that Boalt Hall's first class after Prop. 209/SP-1 included only one African American (and a deferral from the previous year, no less) received considerable attention in the media. [24] Much less noticed was the fact that Boalt's 1997 entering class included zero Filipinos, as did its 1999 entering class. [25]

Before Prop. 209 and SP-1, Filipinos were given consideration under Boalt's affirmative action program, as were some other APA subgroups. [26] Between 1994 and 1996, thirteen Filipinos were enrolled at Boalt. [27] In the three years since the ban on affirmative action, there have only been three Filipinos enrolled at Boalt (all in 1998). [28] Some have referred to this as the phenomenon of being "zeroed out." [29]

In contrast, other APA subgroups have long been excluded from Boalt's affirmative action plan. For example, in 1975, consideration for Japanese Americans was eliminated, and the number of Chinese Americans eligible for consideration was substantially reduced. [30] UCLA Law School appears to have taken a more inclusive approach, though subgroup information is not reported. Some might find it surprising that between 1989 and 1993, 126 APAs enrolled at UCLA through the "diversity admissions" program, compared to 102 through the "regular admissions" program. [31] To put this in perspective, in recent years many comparable law schools like Stanford and the University of Michigan have excluded APAs altogether from their affirmative action programs. [32]

C. Vanishing White Privilege: Prop. 209 and SP-1's Real Beneficiaries

The data presented to this point renders untenable the claim that ending race-conscious affirmative action greatly benefits APA applicants to UC Law Schools. It should also come as no surprise that other groups of color did not benefit from Prop. 209 and SP-1. Comparing the three-year totals before and after Prop. 209 and SP-1, first-year enrollments at Boalt, Davis and UCLA plummeted from 174 to 50 for African Americans, from 285 to 158 for Latinos, and from 33 to 14 for Native Americans. [33] This leaves White applicants as the main beneficiaries of Prop. 209 and SP- 1's ban on race-conscious affirmative action.

Tables 3 and 4 display the magnitude of Whites' increased representation at the Boalt Hall, Davis and UCLA Law Schools by comparing totals from the three years before and after Prop. 209/SP-1. The reported data combines Whites with "other" applicants, most of whom declined to state their race/ethnicity in application materials. However, this reporting format is not likely to significantly overstate the increase in White law students at UC schools because available evidence suggests that students who decline to state their ethnicity are overwhelmingly White. [34] Overall, at the three UC Law Schools that ended race-conscious affirmative action, Whites' representation soared from 59.8% of first-year enrollments in 1994-96 to 71.7% in 1997-99.

Table 3: White/Other Enrollments at Three UC Law Schools Before Proposition 209/SP-1 [35]

Table 4: White/Other Enrollments at Three UC Law Schools After Proposition 209/SP-1 [36]

... Comparing 1994-96 with 1997-99 at Boalt, Davis and UCLA combined, White enrollments increased a substantial 20%, while APA enrollments were basically unchanged. [38] Together, enrollments for African Americans, Latinos and Native Americans went from 23% of the first-year classes in 1994-96 to a mere 10% in 1997-99, a drop of 56%. [39]

References

[1]. See Thernstrom, Farewell to Preferences?, 130 PUB. INTEREST 34, 39-45 (1998).

[2]. Id. at 49.

[3]. See AMERICAN BAR ASSOCIATION, OFFICIAL GUIDE TO APPROVED LAW SCHOOLS, 2000 EDITION 452 (1999). For the curious, the individual enrollment totals are as follows: Stanford 19, Boalt 48, Hastings 69, Davis 23, USF 29, Santa Clara 62, Golden Gate 28, McGeorge 48, UCLA 49, USC 34, Southwestern 56, Western State 18, Loyola Marymount 105, Whittier 33, Pepperdine 12, U. of San Diego 42, Cal Western 32 and Thomas Jefferson 28. Id.

[4]. For example, over one-third (92 of 269 students) of Boalt Hall's entering class of 1999 attended UC. The lion's share of these students, however, attended Berkeley (38) or UCLA (29). See 1999 BOALT HALL ANNUAL ADMISSION REPORT (1999). This disparity in access to law school between graduates of different UC campuses is one reason to be concerned about a second wave of adverse consequences for underrepresented minorities stemming from the ban on race-conscious affirmative action. In another couple of years, when Berkeley and UCLA start graduating classes with dramatically fewer African American, Latino and Native American students, it is quite possible that a continuation of status quo admission policies will further stratify UC legal education opportunities because underrepresented minorities will be disproportionately located at less selective UC campuses like Riverside, which, in turn, will depress their admission chances. This is a serious problem, especially considering that the top three national feeder schools in terms of volume of law school applicants in 1997-98 were UCLA, UC Berkeley and University of Texas-Austin, respectively. See The Leading Undergraduate 'Feeder Schools' for Black and White Law School Applicants (chart), in Vital Signs: The Current State of African Americans in Higher Education, 26 J. BLACKS IN HIGHER EDUC. 79, 85 (Winter 1999/2000). This is one reason I take issue with Thernstrom's rather rosy assessment that Prop. 209 and SP-1 will actually work to the benefit of African Americans by increasing Black graduation levels system-wide at UC. See Thernstrom & Thernstrom, Reflections on The Shape of the River, 46 UCLA L. REV. 1583, 1626-28 (1999) (analyzing the "redistribution" of Blacks to less selective UC campuses, and arguing that this will likely produce a net gain in African Americans graduating from UC). See also James Traub, The Class of Prop. 209, N.Y. TIMES, May 2, 1999, § 6 (Magazine), at 44 (arguing that Blacks' and Latinos' redistribution to less selective UC campuses will produce many educational advantages).

[5]. See Education: UC's Freshman Class, L.A. TIMES, June 2, 1999, at B2 (listing applications, enrollments and admissions to each UC campus). It should also come as no surprise, given California's demographics, that the University of California has historically sent a relatively large number of APA graduates to law school. See LAW SCHOOL ADMISSION COUNCIL, THE CHALLENGE OF MINORITY ENROLLMENT, app. I (1981) (listing the top three feeder institutions for "Oriental" law students in 1980 as the University of Hawaii, UC Berkeley and UCLA, respectively).

[6]. Cf. Thernstrom, Farewell to Preferences?, supra note 1, at 38 ("It should also be noted that the number and quality of applicants to particular schools can fluctuate for many reasons, often impossible to discern .... Thus we should not try to make too much of the changes visible this year."); id. at 35 ("[F]ull data are not yet available, and precisely what has happened this year is not altogether clear. Whether the patterns visible in current data can be projected into the future is also unclear."). When Thernstrom restated the claim that APA law students were the prime beneficiaries of Prop. 209 in the June 1999 UCLA Law Review, 1998 admissions data was available but not utilized by Thernstrom.

[7]. Id. at 41.

[8]. I selected one prominent conservative who has written extensively on the issues analyzed in this article. I could have chosen others, such as Lino Graglia or Dinesh D'Souza. I invite readers to draw parallels between my critique of Thernstrom and other affirmative action critics. For another critique of Thernstrom, see Richard Delgado, Rodrigo's Roadmap: Is the Marketplace Theory for Eradicating Discrimination a Blind Alley?, 93 NW. U. L. REV. 215 (1998) (book review).

[9]. Hastings has a two-track admissions policy, with about 80% of students being selected in a "race-blind" manner based on mostly academic (LSAT, UGPA, etc.) criteria. The other 20% are selected through the LEOP program, which is also not race-conscious. LEOP was instituted in 1969 and continues to be based on broad measures of "disadvantage" such as cultural, economic, educational, familial, geographic, linguistic or social background. While it is true that most underrepresented minority admits at Hastings are LEOP admits, it is also true that most--in 1997 it was two-thirds--of the LEOP admits are not underrepresented minorities. For information on Hastings admissions and LEOP, see Robert Cole et al., Report of an Ad Hoc Task Force on Diversity in Admissions, University of California, School of Law, Berkeley 51-54 (Oct. 14, 1997) (unpublished report, on file with UC Berkeley Boalt Hall Law Library) (reviewing admissions at Hastings); UC Hastings LEOP Information Packet (undated material faxed by Fran Marsh, Hastings' Director of Public Affairs, Mar. 7, 2000); Richard D. Kahlenberg, Class-Based Affirmative Action, 84 CAL. L. REV. 1037, 1067-68 (1996); Mark Johnson, Some Say Poverty, not Race, is the Issue: Class- Based Plan Seen as Alternative, RICHMOND TIMES-DISPATCH, July 7, 1995 at A1. One important distinction is that while Hastings is a public, University of California-affiliated Law School with identical tuition costs to Boalt, UCLA and Davis, it is not under the governance of the UC Regents, and as such was never subject to SP-1. Because Hastings did not employ race-conscious admissions prior to 1997, it is frequently excluded from analysis of the consequences of Prop. 209 and SP-1. See Jerome Karabel, No Alternative: The Effects of Color-Blind Admissions in California, in CHILLING ADMISSIONS 33, 44 (Gary Orfield & Edward Miller, eds., 1998). For a history of Hastings, including its autonomy from the UC Regents, see THOMAS GARDEN BARNES, HASTINGS COLLEGE OF THE LAW: THE FIRST CENTURY (1978).

[10]. Enrollments at Boalt tend to fluctuate much less--between 263 and 269 first-year students in the last six years--than Davis, UCLA or Hastings. See 1999 BOALT HALL ANNUAL ADMISSION REPORT, supra note 4, at 8. Perhaps this reflects a more rigid institutional mandate not to exceed 270 students, or that yield rates are more predictable at more "elite" schools (or both). See id., at 9.

[11]. See Herma Hill Kay, Dean's Memorandum on Admission Statistics to the Boalt Community, Corrected Version (Sept. 3, 1999). The figures for APAs at Hastings are as follows: 108 (22%) in 1996, 63 (15%) in 1995 and 70 (17%) in 1994. See UC Hastings Office of Public Affairs, Hastings Admission Statistics by Ethnicity and Gender (undated document sent by Fran Marsh, Hastings' Director of Public Affairs, on Jan. 31, 2000) [hereinafter Hastings Admission Statistics].

[12]. One reason why it is important to look carefully at APA's percentages as well as enrollment counts is that 1999 racial/ethnic data for UCLA is incomplete. See Kay, supra note 11 (including the following caveat: "1999 ethnic/racial numbers for UCLA are incomplete because ethnic/racial codes for 1,097 applications, 201 admission offers and 52 first-year class enrollments were mistakenly never tabulated, and the application and enrollment materials that provide the raw data from the tabulations were destroyed."). My working assumption is that the UCLA's data management error was random with respect to race/ethnicity, and that therefore the portion of UCLA's applicants/admits/enrollees for whom racial/ethnic information was not known mirror the rest of the class. Given that UCLA had a much higher proportion of APAs in 1999 than it did in 1997 or 1998, it is more likely than not that my assumption overstates APAs' representation in UCLA's 1999 entering class rather than understates it. Given that I am critiquing Thernstrom's claims about the consequences of Prop. 209 and SP-1, it is more appropriate that I use this conservative assumption (overstating APA levels) when justifying my position.

[13]. See id. (providing comprehensive 1994-1999 admission data on Boalt Hall, Davis and UCLA). The figures for APAs at Hastings are as follows: 88 (21%) in 1999, 70 (20%) in 1998 and 48 (15%) in 1997. See Hastings Admission Statistics, supra note 11 (providing 1994-1999 admissions data on UC Hastings College of the Law).

[14]. Data from Hastings provides the best "control group" for this hypothesis. As it turns out Hastings also experienced a modest bump in APA enrollment during the same period, despite not altering its admission policy with respect to affirmative action. In 1997-99, 19% of first-year students at Hastings were APAs, compared to 18% for 1994-96. See Hastings Admission Statistics, supra note 11. A second useful control group (but one for which I could not get data spanning 1994-99) is private ABA law schools in California, which were not subject to Prop. 209 and SP-1's ban on race-conscious affirmative action. A look at the 13 private ABA schools in California listed in the latest two versions of the ABA Guide reveals that there were 495 APA first-years in the entering class of 1997 and 528 in 1998, a 7% increase in one year. See AMERICAN BAR ASSOCIATION, OFFICIAL GUIDE TO APPROVED LAW SCHOOLS, 2000 EDITION passim (1999) [hereinafter ABA GUIDE 2000]; AMERICAN BAR ASSOCIATION, OFFICIAL GUIDE TO APPROVED LAW SCHOOLS, 1999 EDITION passim (1998) [hereinafter ABA GUIDE 1999]. That Thernstrom may have made the logical error of presuming increases in APA enrollments at UC law schools were directly attributable to Prop. 209 and SP-1 is ironic given that he so strenuously criticized Bowen and Bok for falling prey to a "post hoc fallacy" when they argued that affirmative action was the cause and not merely the coincidental correlation of positive social outcomes. See Stephan Thernstrom & Abigail Thernstrom, Racial Preferences: What We Know Now, 107 COMMENTARY 44, 48 (Feb. 1999) ("To assume that preferences account for subsequent gains is to commit the classic fallacy of post hoc ergo propter hoc. Once again the evidence tells a different story."); Thernstrom & Thernstrom, Reflections on The Shape of the River, supra note 9, at 1618 ("Further, to assume that preferences account for subsequent gains is a classic instance of the post hoc fallacy.").

[15]. See Thernstrom, Farewell to Preferences?, supra note 9, at 42; Thernstrom & Thernstrom, Reflections on the Shape of the River, supra note 9, at 1629.

[16]. See Kay, supra note 49 (listing the class sizes for UC law schools). See also Richard H. Sander, Experimenting with Class-Based Affirmative Action, 47 J. LEGAL EDUC. 472, 486 (1997) (reviewing in detail UCLA's 1997 admission results); Law School Welcomes Large, Culturally Diverse Class, UCLA LAW MAG. 11 (Fall/Winter 1997) (noting that the 1997 entering class was the largest in over a decade). Hastings encountered a similar bulge in enrollments one year prior to this, causing it to admit a smaller class in 1997 and causing APA enrollments (in absolute terms) to drop 56% compared to 1996. See Hastings Admission Statistics, supra note 11.

[17]. Thernstrom also claims that APA enrollments went up 24% at Boalt Hall in the first year after Prop. 209 and SP-1 went into effect. See Thernstrom, Farewell to Preferences?, supra note 9, at 40. This claim is inconsistent with the data in Tables 1 and 2, which originate from the UC Office of the President. As Tables 1 and 2 indicate, there was only 1 more APA student enrolled at Boalt in 1997 as compared to 1996 (a 2% increase). Alarmed by the discrepancy, I double-checked the UCOP data against Boalt Hall's own admission reports, and verified that the numbers in Tables 1 and 2 are correct. See BOALT HALL 1999 ANNUAL ADMISSION REPORT, supra note 4. Consequently, Thernstrom's 24% figure is either somehow based on incorrect preliminary information, or is the product of sloppy scholarship.

[18]. See Kay, supra note 11.

[19]. Cf. Gabriel J. Chin et al., Rethinking Racial Divides: Panel on Affirmative Action, 4 MICH. J. RACE & L. 195, 230 (1998) [hereinafter Chin et al., Rethinking Racial Divides] (Professor Marina Hsieh commenting: "There is a perfectly valid truth that, in many instances, all Asians will be treated alike regardless of any subgroup distinctions. That is the majority culture. To some extent even Asian Pacific Islanders within the culture, with respect to each other, have certain broad assumptions that remain true in terms of external treatment, regardless of internal differences."); Neil Gotanda, Chen the Chosen: Reflections on Unloving, 81 IOWA L. REV. 1585, 1597 (1996) ("[M]ore specifically, if the discrimination against Koreans is similar to such discrimination against other persons of Asian ancestry, then we have, prima facie, an 'Asian-American' racial context. This kind of Asian American racial context is not a subjective creation of Koreans and other persons of Asian ancestry, but is a recognition of forces at work in American society.").

[20]. See Robert S. Chang, Reverse Racism! Affirmative Action, the Family, and the Dream that is America, 23 HASTINGS CONST. L.Q. 1115, 1127-28 (1996) (noting that "care must be taken to acknowledge the tremendous diversity within the Asian American community so that the relative success of Chinese Americans, Japanese Americans, and Korean Americans will not obscure the very different situations of the other Asian American groups"); Gabriel J. Chin et al., Beyond Self- Interest: Asian Pacific Americans Toward a Community of Justice, A Policy Analysis of Affirmative Action, 4 UCLA ASIAN PAC. AM. L.J. 156 n.143 (1996) ("[I]t is dangerous to aggregate all APA groups in a contemporary 'Horatio Alger'-like American success narrative. In fact, there are wide disparities in the socioeconomic status among various Asian subgroups."); Linda Cheng Yee Lye, The Wrong Debate, 13 BERKELEY WOMEN'S L.J. 13, 14 (1998) (noting that "the effects of affirmative action and its demise are by no means uniform across the heterogeneous group lumped into the category of 'Asian Pacific American"'); Mari Matsuda, We Will Not Be Used, 1 UCLA ASIAN AM. PAC. ISLANDS L.J. 79, 80 (1993) ("When Asian-Americans manage to do well, their success is used against others. Internally, it is used to erase the continuing poverty and social dislocation within Asian-American communities."); Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225, 245-46 (1995) ("Statistically, the socioeconomic positions of Vietnamese and other Southeast Asian refugee groups resemble the position of African Americans, rather than that of whites.").

[21]. See Evelyn Nieves, Civil Rights Groups Suing Berkeley Over Admission Policy, N.Y. TIMES, Feb. 3, 1999, at A11 (discussing Rios v. UC Regents, a suit brought by the Asian Pacific American Legal Center of Southern California, the ACLU, Lawyers' Committee for Civil Rights of the San Francisco Bay Area, MALDEF, and the NAACP Legal Defense and Education Fund, Inc.). See also Pamela Burdman, Lawsuit Against UC Berkeley Claims 'Colorblind' Admissions Policy is Unjust, S.F. CHRON., Feb. 3, 1999, at A13.

[22]. See Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN. L. REV. 855, 892 n.240 (1995).

[23]. See id. at 893. I attempted to get more recent data on this issue. However, the U.S. Department of Education does not provide information on educational attainments that was broken down by APA subgroup. See NATIONAL CENTER FOR EDUCATION STATISTICS, THE CONDITION OF EDUCATION (1999).

[24]. See Thernstrom, Farewell to Preferences?, supra note 1, at 39-41 (reviewing and criticizing the popular press' coverage of Prop. 209 and SP-1's impact on Boalt Hall). For examples of the media coverage, see Peter Applebome, Minority Law School Enrollment Plunges in California and Texas, N.Y. TIMES, June 28, 1997, at A5; Louis Freedberg, UC Law Schools at Wits' End as Minorities Go Elsewhere, S.F. CHRON., July 18, 1997, at A1; Amy Wallace, UC Law School Class May Have Only 1 Black, L.A. TIMES, June 27, 1997, at A1.

[25]. See 1999 BOALT HALL ANNUAL ADMISSION REPORT, supra note 4, at 11.

[26]. See RACHEL F. MORAN, ET AL., STATEMENT OF FACULTY POLICY COVERING ADMISSION TO BOALT HALL AND REPORT OF THE ADMISSIONS POLICY TASK FORCE (unnumbered page) (1993) (describing Boalt's target ranges for admission offers to "Asian subgroups" including Filipinos). Southeast Asian Americans (Vietnamese, Cambodian, and Laotian) present another example of underrepresented APA groups that were previously included in Boalt's affirmative action program. However, I did not separately analyze this group because Southeast Asians were "confusingly redefined" in 1997 to include some subcontinental Indians, which makes comparisons before and after Prop. 209 and SP-1 problematic. See Chin et al., Rethinking Racial Divides, supra note 19, at 212 n.55 (noting the confusion in how Southeast Asians were categorized in Boalt Admission reports in 1997). See also Kaaryn Gustafson, Broken Promises, 13 BERKELEY WOMEN'S L.J. 3, 4 n.3 (1998) (noting that while SP-1 has had a detrimental effect on Southeast Asian's representation in Boalt's 1997 class, the University of California keeps few statistics on APA subgroups).

[27]. See 1999 BOALT HALL ANNUAL ADMISSION REPORT, supra note 4, at 11.

[28]. See id.

[29]. Chin et al., Rethinking Racial Divides, supra note 19, at 212 (comments of Marina Hsieh). A parallel phenomenon occurred at the undergraduate level at UC Berkeley in the early 1990s. Until 1989, Filipinos were included in Berkeley's affirmative action program, and about 227 enrolled annually. In 1989, the decision was made to substantially reduce the "preference" given to Filipino applicants, causing enrollments to drop to an average of 114. Then in 1993, the Berkeley administration terminated affirmative action consideration for Filipinos, causing enrollments to plunge to an average of 54. See Karabel, supra note 9, at 35-36.

[30]. See Report of Special Admissions at Boalt Hall After Bakke, 28 J. LEGAL EDUC. 363, 366-67 (1977). Specifics about other subgroups, such as Koreans or South Asians, were not mentioned in this report, or in Boalt's 1993 retrospective on its affirmative action plan. See also MORAN ET AL., supra note 26 passim. The exclusion of Japanese and Chinese from affirmative action plans in the mid-1970s may explain why APA enrollments dropped overall during this period at Boalt, UC Davis and UCLA law schools. At the three UC law schools there were 45-48 APA first-year students from 1972-74, but only 35-39 in 1975- 76, and this was at a time when APA applications were consistently rising each year. See UNIVERSITY OF CALIFORNIA, FINAL REPORT OF THE TASK FORCE ON GRADUATE AND PROFESSIONAL ADMISSIONS, app. at F-14 (1977). It is also worth noting that in the early days of Boalt's "special admission" program, a substantial proportion of APAs were enrolled through affirmative action. In 1971, only 4 APAs were enrolled at Boalt under "regular" admissions, compared to 23 under "special" admissions. See Report of Special Admissions at Boalt Hall After Bakke, supra at 383.

[31]. See Albert Muratsuchi, Race, Class, and UCLA School of Law Admissions, 1967-1994, 16 CHICANO-LATINO L. REV. 90, 139 tbl.4 (1995).

[32]. See Brest & Oshige, supra note 22, at 855 (discussing the exclusion of APAs from Stanford's affirmative action program); Chin et al., Rethinking Racial Divides, supra note 19, at 236 (Michigan Professor David Chambers commenting on APAs not being included in Michigan's affirmative action policy).

[33]. See Kay, supra note 11.

[34]. See Michelle Locke, Black and Hispanic Admissions Rebound, AP WIRE REPORT, Apr. 3, 1999 (reviewing UC undergraduate admissions and noting that a majority of "decline to state" applicants are White); Sander, supra note 16, at 496 tbl.11 note (reporting that "others" in the 1997 UCLA Law School applicant pool "appear to be mostly Whites who did not wish to disclose their race"); Interview with Edward G. Tom, Director of Admission for the Boalt Hall School of Law, in Berkeley, Cal. (Feb. 3, 2000) (reporting that Boalt made some attempts to identify the racial/ethnic composition of "decline to state" applicants in 1997 by referencing other data sources after admission decisions were made. Mr. Tom confirmed that "decline to state" applicants were "overwhelmingly White" with a few Asian Americans, and no Blacks, Latinos or Native Americans). The fact that "decline to state" applicants are predominantly White can also be deduced from the way changes in White enrollments predictably rise or fall inversely with "decline to states." For example, in 1999, UC changed its undergraduate application form to more clearly state that racial/ethnic information would not be used in admission decisions. After this change, UC system-wide White enrollments went up by 1,455 and "decline to state" enrollments went down by 1,741. See Education: UC's Freshman Class, L.A. TIMES, June 2, 1999, at B2 (reporting admission figures for the UC system and explaining changes in the application form). This reporting ambiguity becomes a potentially difficult issue because my goal is to compare Tables 3 and 4, and because "decline to state" applications doubled after Prop. 209 and SP-1. At Boalt Hall, for example, the average number of "decline to state" applicants in 1997-99 was 537, compared to 258 in 1994-96, at a time when overall applicant volume went down slightly. See BOALT HALL 1999 ANNUAL ADMISSION REPORT, supra note 4, at 7. If, for example, a larger number of people of color were to suddenly decline to state their ethnicity after Prop. 209 and SP-1, then my data would exaggerate the benefits Whites received from the ban on affirmative action. My hypothetical example, however, is highly unlikely, at least as far as I can tell.

[35]. See Kay, supra note 11. The figures for Hastings were as follows: 293 (70%) in 1994, 314 (76%) in 1995, and 311 (63%) in 1996. See Hastings Admission Statistics, supra note 11.

[36]. See Kay, supra note 11. The figures for Hastings were as follows: 232 (75%) in 1997, 242 (68%) in 1998 and 280 (67%) in 1999. See Hastings Admission Statistics, supra note 11.

[37]. See supra note 12.

[38]. See Kay, supra note 11.

[39]. See id.