Race as a diagnostic tool: Latinas/os and higher education in California, Post-209

California Law Review

Volumn 96, Issue 5, 2008, Pages 1215-1257

  Chacón, Jennifer M ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

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EID: 56149093629     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (259)

1. Lani Guinier, Admission Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 202 (2003).
2. Jason Song, Schools Operate in Crisis Mode, L.A. TIMES, Mar. 3, 2008, at B1 (reporting that workers in California's school districts are being laid off to prepare for the $4.8 billion dollars in budget cuts proposed by Governor Schwarzenegger).
3. Tanya Schevitz, CSU Chancellor Bemoans Proposed Budget Cuts, S.F. CHRONICLE, Jan. 24, 2008, at B1 (reporting that Governor Schwarzenegger's budget proposal would result in a $312.9 million budget shortfall for the California State University (CSU) system and a $417 million budget shortfall for the University of California (UC) system). While the Governor's budget is not the last word, the existence of a $14.5 billion dollar state budget shortfall makes it a certainty that large cuts will be made to the state's education budget. Id.
4. Goodwin Liu, Interstate Inequality in Educational Opportunity, 81 N.Y.U. L. REV. 2044, 2060-67 (2006).
5. LANI GUINIER & GERALD TORRES, THE MINER'S CANARY 265-83 (2002) (describing the shift in funding in California and other states).
6. JOHN AUBREY DOUGLASS, THE CONDITIONS FOR ADMISSION: ACCESS, EQUITY, AND THE SOCIAL CONTRACT OF PUBLIC UNIVERSITIES 155-56 (2007).
7. Guinier, supra note 1, at 129.
8. Id.
9. Id. at 117; see also DOUGLASS, supra note 6, at 147-83.
10. DOUGLASS, supra note 6, at 165.
11. Dave Lesher, Battle over Prop. 209 Moves to the Courts, L.A. TIMES, Nov. 7, 1996, at Al; Robert Pear, In California, Voters Bar Preferences Based on Race, N.Y. TIMES, Nov. 6, 1996, at B7; see also LYDIA CHÁVEZ, THE COLOR BIND: CALIFORNIA'S BATTLE TO END AFFIRMATIVE ACTION (1998) (describing the history of Proposition 209).
12. CAL. CONST. art. I, § 31 (a).
13. ST. OF CAL., CALIFORNIA BALLOT PAMPHLET GENERAL ELECTION 32 (1996) (arguing in favor of Proposition 209). Supporters of the ballot initiative presented it as a way to "address inequality of opportunity ... by making sure that all California children are provided with the tools to compete in our society." Id.
14. DOUGLASS, supra note 6, at 179. On July 20, 1995, the Board of Regents voted on two proposals introduced by Regent Connerly. Special Regental Action Number One ("SP-1") eliminated considerations of race, ethnicity, and gender in university admissions. SP-1 purported to "ensur[e] equal treatment" by requiring that "not less than fifty (50) percent and not more than seventy-five (75) percent of any entering class on any campus shall be admitted solely on the basis of academic achievement," measured by grades and standardized test scores alone. This "Policy Ensuring Equal Treatment Admissions" (SP-1) was approved July 20, 1995. REGENTS OF THE U. OF CAL., POLICY ENSURING EQUAL TREATMENT ADMISSIONS (SP-1) (1995), available at http://www.universityofcalifornia.edu/regents/ policies/sp1.html [hereinafter SP-1] (last visited Jan. 23, 2008). Supplemental criteria for non-academic bases for admissions were to be developed by the University of California's Office of the President, in consultation with the academic senate, and submitted for regental approval. DOUGLASS, supra note 6, at 180; see also Cruz Reynoso, A Survey of Latino Lawyers in Los Angeles County: Their Professional Lives and Opinions, 38 U.C. DAVIS L. REV. 1563, 1619-20 & n.123 (2005) (discussing SP-1 and its effects). Numerous amendments to SP-1 were debated over the course of a contentious thirteen hour meeting, but only one amendment was ultimately approved. DOUGLASS, supra note 6, at 179. The sole amendment stated: "Because individual members of all of California's diverse races have the intelligence and capacity to succeed at the University of California," the purpose of SP-1 was to "reflect[ ] this state's diversity," through preparation and empowerment, rather than through "artificial preferences." Id. SP-1 was repealed in May 2001. SP-1, supra note 14. Because of the intervening passage of Proposition 209, the rescission of SP-1 did not allow for the consideration of race in UC admissions, but supporters of the repeal hoped that it would send a welcoming message to students from underrepresented minority groups who might otherwise be discouraged by UC's endorsement of the policy. DOUGLASS, supra note 6, at 208.
15. DOUGLASS, supra note 6, at 159-60.
16. Id. at 160.
17. Id. at 174.
18. Id. at 189-90.
19. See, e.g., Ward Connerly, Wolverine Rights: Michigan Organizes to Fight Preferences, NAT'L REV., Mar. 3, 2004, available at http://www.nationalreview.com/comment/connerly200403030929. asp ("Whether the victim of racial discrimination is a black person denied admission to Ole Miss' because of skin color or a white person denied admission to the University of Michigan owing to race preferences, the injustice is no less."); see also David Crary, Mixed Results for Divisive Ballot Measures, May 14, 2008, available at http://www.washingtonpost.com/ wp-dyn/content/article/2008/05/14/AR2008051402245.html (noting that Connerly sought to place anti-affirmative action initiatives on the ballot in Arizona, Colorado, Missouri, Nebraska, and Oklahoma, but has failed in Missouri and Oklahoma).
20. See, e.g., Gail Heriot, University of California Admissions Under Proposition 209: Unheralded Gains Face, an Uncertain Future, 6 NEXUS L.J. 163, 169 (2001).
21. DOUGLASS, supra note 6, at 66 ("Today, the disparities are even greater among wealthy and poor districts. More generally, the overall funding per student in California tragically ranks near the bottom nationally.").
22. See ERICA FRANKENBERG & CHUNGMEI LEE, HARVARD U. CIV. RTS. PROJECT, RACE IN AMERICAN PUBLIC SCHOOLS: RAPIDLY RESEGREGATING SCHOOL DISTRICTS (2002) (discussing racial isolation of grade school students); RICHARD FRY, PEW HISP. CTR., THE CHANGING RACIAL AND ETHNIC, COMPOSITION OF U.S. PUBLIC SCHOOLS (2007), available at http://pewhispanic.org/reports/report.php?ReportID=79 (noting the increasing isolation of Latina/o students from other students in public schools); GARY ORFIELD & CHUNGMEI LEE, UCLA CIV. RTS. PROJECT, HISTORIC REVERSALS, ACCELERATING RESEGREGATION, AND THE NEED FOR NEW INTEGRATION STRATEGIES 5-6 (2007), available at http://www.civilrightsproject.ucla.edu/index.html ("For Latinos, whose segregation in many areas is now far more severe than when it was first measured nearly four decades ago, there never was progress outside of a few areas and things have been getting steadily worse since the 1960s on a national scale"); GARY ORFIELD, HARVARD U. CIV. RTS. PROJECT, SCHOOLS MORE SEPARATE: CONSEQUENCES OF A DECADE OF RESEGREGATION (2001), available at http://www.eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini. jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED459217& ERICExtSearch_SearchType_0=eric__accno&accno=ED459217.
23. Throughout this essay, I use the term Latina/o to refer to persons with nationalities or ancestries derived from the nations of South America, Central America, the Caribbean, and Mexico. In California, which is home to almost one-third of Latina/os in the United States, the group is predominantly of Mexican origin (about 84%), with a growing percentage of Latina/os of Central American origin (9%), and a small percentage of Latina/os from Puerto Rico, Cuba, and South America. PEW HISP. CTR., SURVEY BRIEF: LATINOS IN CALIFORNIA, TEXAS, NEW YORK, FLORIDA AND NEW JERSEY 1 (Mar. 2004), available at http://pewhispanic.org/ factsheets/factsheet.php?FactsheetID=10. The term Latina/o is imperfect, but still serves as a shorthand term for capturing the multiple identities encapsulated by its use. See Francisco Valdez, Latina/o Ethnicities, Critical Race Theory, and Post-Identity Politics in Postmodern Legal Culture: From Practice to Possibilities, 9 LA RAZA L.J. 1, 8 (1996) ("These group experiences include, but are not exclusively about, Mexican-American, Puerto Rican, and Cuban-American communities. Each of these (and other) Latina/o sub-groups not only comprises "different" national origins and cultures but also diverse spectrums of races, religions, genders, classes, and sexualities.") (citation omitted); see also Francisco Valdez, Under Construction, LatCrit Consciousness, Community and Theory, 85 CALIF. L. REV. 1087, 1090 & n.6 (1997) (defining and problematizing the term).
24. See JEANNIE OAKES ET AL., U. OF CAL. ALL CAMPUS CONSORTIUM FOR RESEARCH DIVERSITY & UCLA INST. FOR DEMOCRACY, EDUCATION AND ACCESS, REMOVING THE ROADBLOCKS: FAIR COLLEGE OPPORTUNITIES FOR ALL CALIFORNIA STUDENTS 1 (2006), available at http://www.law.berkeley.edu/centers/ewi/research/ highereducation/ ("Proposition 209 and ending affirmative action have produced neither the 'results' nor the opportunities that were promised. California's Latino, African American, and American Indian students have not received the 'the tools to compete.'").
25. See discussion infra Part II.
26. See, e.g., DOUGLASS, supra note 6, at 147; PETER SACKS, TEARING DOWN THE GATES (2007); PETER SCHMIDT, COLOR AND MONEY: HOW RICH WHITE KIDS ARE WINNING THE WAR OVER COLLEGE AFFIRMATIVE ACTION (2007); Gary M. Lavergne, College Admissions and Conspiracy Theories, CHRON. HIGHER EDUC., Nov. 9, 2007, at B10. Indeed, many have argued that affirmative action is somewhat misguided in that it benefits affluent minorities, but does little to help the poor minorities. STEPHEN L. CARTER, REFLECTIONS OF AN AFFIRMATIVE ACTION BABY 80 (1991) (suggesting that this also works to disadvantage poor Whites); Antonin Scalia, The Disease as Cure: "In Order to Get Beyond Racism, We Must First Take Account of Race, " 1979 WASH. U. L.Q. 147, 153-54 (1979).
27. See, e.g., DOUGLASS, supra note 6, at 147; Lavergne, supra note 26.
28. For examples of recent works discussing the difficulty of identifying the appropriate recipients of affirmative action, see, e.g., DOUGLASS, supra note 6, at 154 (discussing the difficulties of targeting affirmative action policies in an increasingly mixed-race society); Deana K. Chuang, Power, Merit, and the Imitation of the Black and White Binary in the Affirmative Action Debate: The Case of Asian Americans at Whitney High School, 8 ASIAN L.J. 31, 39 (2001) (noting subgroup differences among Asian Americans which suggest the need for a more nuanced approach to policies toward Asian Americans); Angela Onwuachi-Willig, The Admission of Legacy Blacks, 60 VAND. L. REV. 1141 (2007) (discussing various competing viewpoints regarding the question of which Black students ought to be targeted by affirmative action policies); Sara Rimer & Karen W. Arenson, Top Colleges Take More Black's, But Which Ones? N.Y. TIMES, June 24, 2004, at A1.
29. For examples of authors focused on class-based solutions to problems of educational equity, see DANIEL GOLDEN, THE PRICE OF ADMISSION (2006) (arguing that students of all races would benefit from the elimination of legacy preferences at institutions of higher education); SACKS, supra note 26; R. Richard Banks, Meritocratic Values and Racial Outcomes: Defending Class-Based College Admission, 79 N.C. L. REV. 1029 (2001). Compare Carlton F.W. Larson, Titles of Nobility, Heredity Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions, 84 WASH. U. L. REV. 1375 (2006) (arguing that legacy preferences in admissions in public institutions of higher learning are unconstitutional).
30. Guinier, supra note 1, at 120 ("Properly deployed, racial literacy, or the ability to read race in conjunction with institutional and democratic structures, may enable the building of a collation that starts a larger conversation at the point where educational selection and democratic values meet.").
31. Id. at 202.
32. I have chosen to center my analysis on Latina/os in California's public schools. In so doing, I do not in any way discount the severe underrepresentation of other groups, such as African Americans and American Indians, in the UC or CSU systems. Disadvantages encountered by other racial minorities, including African American students, American Indian students, and Asian American students, as well as systematic studies exploring disadvantages related to class and geography, can and should be used to more fully elucidate the structural problems affecting the delivery of public education in California.
33. GUINIER & TORRES, supra note 5, at 11. Guinier and Torres discuss race as analogous to the "miner's canary," the bird that was taken into the mines because the birds, with weaker respiratory systems, would collapse before humans were affected by poisonous gases in the mine, giving miners the chance to escape before they too were harmed. "Those who are racially marginalized are like the miner's canary: their distress is the first sign of a danger that threatens us all." Id. Guinier and Torres attribute this metaphor to Felix Cohen, who used the same metaphor in describing the plight of the American Indian. Id. at n. 1.
34. Cheryl I. Harris, Mining in Hard Ground, 116 HARV. L. REV. 2487, 2517-18 (2003) (reviewing LANI GUINIER & GERALD TORRES, THE MINER'S CANARY (2002)).
35. As this article goes to press, UC is debating significant changes to its eligibility criteria. The proposed changes would include the elimination of the SAT II test requirements, a guarantee of admission to students with a GPA based on approved courses unweighted for honors or AP courses that places them in the top 12.5% of their high school, and a guarantee that all students with an unweighted GPA of 2.8 and a submitted SAT or ACT test score will have their applications reviewed for admission. BD. OF ADMISSIONS AND REL. WITH SCHOOLS, U. OF CAL., REVISED PROPOSAL TO REFORM UC'S FRESHMAN ELIGIBILITY POLICY, BOARD OF ADMISSIONS AND RELAITONS WITH SCHOOLS (2008), available at www.universityofcalifornia.edu/senate/underreview/sw.rev.eligibility.02.08.pdf [hereinafter BOARS' REVISED ELIGIBILITY REFORM PROPOSAL]. Because this policy proposal is still in development and has not yet been approved, this article does not attempt to assess the impact of the policy on Latina/o student admissions and enrollment in the UC system. However, several components of the proposal address significant barriers identified in Part II.
36. See WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS 1-10 (1998); Beatrice L. Bridglall, A Misguided Debate About Affirmative Action?, 67 OHIO ST. L.J. 15, 16-27 (2006) (discussing underrepresentation of certain racial minorities in higher education and the adoption of affirmative action).
37. DONALD E. HELLER, EDFUND, THE EFFECTS OF TUITION PRICES AND FINANCIAL AID ON ENROLLMENT IN HIGHER EDUCATION: CALIFORNIA AND THE NATION 25 (2001), available at www.edfund.org/pdfs/i-57.pdf (last visited Jan. 23, 2008).
38. Marcela Muñiz, Latinos and Higher Education: Snapshots from the Academic Literature, 1 (2006), http://www.collegeboard.com/prod_downloads/ highered/de/latinos-and-highered_snapshots.pdf (citing W.B. HARVEY & E.L. ANDERSON, AM. COUNCIL ON EDUCATION, MINORITIES IN HIGHER EDUCATION: 2003-2004: TWENTY-FIRST ANNUAL STATUS REPORT (2005)).
39. Id. This number puts Latina/os far behind the increase in enrollment by Whites (14%) and African Americans (11%) during the same period. Id.
40. Id. at 2 (citing HARVEY & ANDERSON, supra note 38) (noting declining rates of college completion among Latina/os in the 1990s).
41. Id. at 3. In contrast, 11.5% of American Indians, 14.3% of African Americans. 26.1% of Whites, and 44.1% of Asian/Pacific Islanders aged twenty-five or older held at least a bachelor's degree. Id. In 2000, 24.4% of the general U.S. population held at least a bachelors degree. Id.
42. Id. at 2 (citing RICHARD FRY, PEW HISP. CTR., RECENT CHANGES IN THE ENTRY OF HISPANICS AND WHITE YOUTH INTO COLLEGE (2005)).
43. See ALEJANDRA LOPEZ, 11 RACE AND EDUCATIONAL ATTAINMENT IN CALIFORNIA: CENSUS 2000 PROFILES 3-5 (2002), available at http://www.stanford.edu/dept/ csre/reports/report_11.pdf.
44. Id.
45. As of July 1995, the UC Regents already had adopted SP-1, which barred the "use of race, religion, sex, color, ethnicity or national origin as a criterion for admission to the university or any program of study." Reynoso, supra note 14, at n.123. Even though the measure was not implemented by the UC system until 1997, its passage appears to have had a chilling effect on minority applications, admission, and enrollment, which dropped after 1995. See, e.g., DOUGLASS, supra note 6, at 210 fig.8.3. The UC system has relied upon a matrix of grades and test scores in admissions since 1979, and by the late 1980s required a set of course requirements and a minimum GPA of 2.82. See UC ELIGIBILITY AND ADMISSIONS STUDY GROUP, FINAL REPORT TO THE PRESIDENT B1-B2 (2004), available at http://www.universityofcalifomia.edu/news/compreview/ backgroundrnaterials0505.html. Given disparate access to secondary educational opportunities, UC's eligibility criteria were cutting out large numbers of Latina/o students well before 1995. DOUGLASS, supra note 6, at 156.
46. RICHARD C. ATKINSON & PATRICIA A. PELFREY, CTR. FOR STUDIES IN HIGHER EDUC., OPPORTUNITY IN A DEMOCRATIC SOCIETY: RACE AND ECONOMIC STATUS IN HIGHER EDUCATION 5 (2006), available at http://repositories.cdlib.org/ cgi/viewcontent.cgi?article=1083&context=cshe.
47. U. OF CAL., BERKELEY OFF. OF STUDENT RESEARCH, NEW FRESHMAN REGISTRANTS BY ETHNICITY, FALL 1996-FALL 2006, https://osr2.berkeley.edu/newfroshtrend.html (last visited Aug. 1, 2007).
48. U. OF CAL. OFF. OF THE PRESIDENT, STUDENT ACADEMIC SERVICES, UNDERGRADUATE ACCESS TO THE UNIVERSITY OF CALIFORNIA AFTER THE ELIMINATION OF RACE-CONSCIOUS POLICIES 2 (Mar. 2003), available at http://www.ucop.edu/sas/publish/aa_final2.pdf (last visited Aug. 1, 2007) (noting that the proportion of underrepresented minority students declined by more than 50% at UCLA after the elimination of race-conscious affirmative action).
49. Some commentators and supporters of Proposition 209 have argued that the Initiative merely resulted in a desirable "cascading" of minorities to less prestigious public schools. See, e.g., Eryn Hadley, Did the Sky Really Fall? Ten Years After California's Proposition 209, 20 BYU J. PUB. L. 103, 128 (2005); Heriot, supra note 20. Setting aside the issue of the desirability of a cascade, the numbers do not support its existence. Gains by less selective UC schools in the aftermath of Proposition 209 did not offset losses in underrepresented minorities at more selective UC schools. See DOUGLASS, supra note 6, at 188-89. Moreover, the overall representation of minorities in the UC system in 2005 does not bear out the optimism of this "cascade" theory. See infra notes 52-56 and accompanying text.
50. ATKINSON & PELFREY, supra note 46, at 5.
51. Id.
52. Id. This growth in the percentage of the population made up of underrepresented minorities was almost entirely due to the increase in the Latino/a population. Id. See also Pamela Burdman, Diversity Drama at the University of California, SALON.COM, June 24, 2002, available at http://dir.salon.com/story/news/feature/2002/06/24/ uc_diversity/index.html.
53. Martha A. Rivas et al., An Examination of Latina/o Transfer Students in California's Postsecondary Institutions, 16 LATINO POL'Y & ISSUES BRIEF, May 2007 at 1, available at www.chicano.ucla.edu/press/briefs/documents/LPIB_16.pdf.
54. Id. Latinos/as constituted 14% of UC enrollees in 1995, 13% in 2000 and 14% in 2003. Id. See also ATKINSON & PELFREY, supra note 46, at 9. As of 2006, Chicana/o students made up 6% of the students; other Latina/o students made up another 6%. U. OF CAL. OFF. OF THE PRESIDENT, STATISTICAL SUMMARY AND DATA ON UC STUDENTS, AND STAFF, FALL 2006, available at http://www.ucop.edu/ucophome/uwnews/stat/statsum/fall2006/statsumm2006.pdf.
55. CAL. DEP'T OF FIN., RESEARCH AND DEV. DIV., RACE/ETHNIC POPULATION WITH AGE AND SEX DETAIL, 1970-2040 26 (2000), available at http://www.cdss.ca.gov/research/res/PDF/DemoTrendsFinal.pdf.
56. In 2006, Mexican Americans made up 19.6% of undergraduate students in the CSU system and other Latina/os made up 7.5%, for a total of 27.1%. CSU SYSTEM-WIDE ENROLLMENT BY ETHNIC GROUP, NUMBER AND PERCENTAGE TOTAL FROM FALL 1996, http://www.calstate.edu/as/stat_reports/2005-2006/feth01.htm. The underrepresentation of Latina/os in the California Community College (CCC) system is less pronounced. Rivas et al., supra note 53, at 1. Unfortunately, however, community college enrollment often does not translate into bachelor degree completion. See Muñiz, supra note 38, at 12. In 2003, less than 10% of CCC students transferred to a four-year college. Rivas et al., supra note 53, at 1. While this Article focuses on factors that affect selection to California's selective colleges and universities, the role of community colleges in this process is important, since students who are not eligible for a selective college or university upon graduation from high school may enroll in a selective college or university upon completion of an associates degree at the community college level. Id. Transferring from a community college to a four-year institution is an important path to a degree for Latina/o students. Id.
57. U. OF CAL. OFF. OF THE PRESIDENT, MAJOR FEATURES OF THE CALIFORNIA MASTER PLAN FOR HIGHER EDUCATION (2007) [hereinafter UCOP MASTER PLAN DESCRIPTION], available at http://www.ucop.edu/acadinit/mastplan/mpsummary.htm. For a robust history and analysis of the Master Plan, see DOUGLASS, supra note 6, at 79-92.
58. UCOP MASTER PLAN DESCRIPTION, supra note 57.
59. Id.
60. Id.
61. Id.
62. Id.
63. Id.
64. UCOP MASTER PLAN DESCRIPTION, supra note 57.
65. Id. Students are not guaranteed admission to the campus of their choice. Id.
66. U. OF CAL., QUICK REFERENCE FOR COUNSELORS 08-09 12 (2008), available at http://www. universityofcalifornia.edu/educators/counselors/resources/materials/QR.pdf.
67. Id.
68. U. OF CAL. OFF. OF PLANNING AND ANALYSIS ET AL., AN ENROLLMENT ISSUES HANDBOOK 12 (2001), available at http://www.ucop.edu/planning/ enrollmenthandbook01.pdf [hereinafter ENROLLMENT ISSUES HANDBOOK]. At this time, UC Merced and UC Riverside are non-selective, meaning that they accept all UC-eligible students who apply, and also accept UC-eligible students who are placed in the referral pool when they are denied admission at the campus of their choice. See, e.g., Marisa Agha, UC Riverside remains a safety net for some UC-eligible students, PRESS-ENTERPRISE (Riverside, Cal.), June 13, 2007, at B3. These "nonselective" institutions typically wind up admitting the students from the referral pool. Interestingly, only about 6% of students who are placed in the referral pool actually enroll at a UC school. Minutes of Meeting, Univ. of Cal. Board of Admissions and Relations with Sch. 4 (Nov. 3, 2006), available at www.universityofcalifornia.edu/senate/commitees/ boars/boars.110306.minutes.pdf.
69. DOUGLASS, supra note 6, at 90.
70. ENROLLMENT ISSUES HANDBOOK , supra note 68, at 10-11; see also infra note 78 and accompanying text (explaining the partial exception for the top 4%).
71. Students who graduate in the top 4% of their high school graduating class (as defined by the UC system) are admitted without regard to their test scores, although students still have to take the tests. See infra note 78 and accompanying text. There is also a provision for admission on the basis of exceptional test scores alone. University of California, Undergraduate Admissions http://www.universityofcalifornia.eduyeducators/counselors/adminfo/ freshman/advising/admission/exam.html.
72. U. of Cal., Examination Requirements, available at _http://www. universityofcalifornia.edu/educators/counselors/adminfo/freshman/advising/ admission/examr.html (last visited Aug. 17, 2007).
73. Cal. St. U., Eligibility Index-California Residents (2007), available at http://www.csumentor.edu/planning/high_school/cal_residents.asp.
74. U. of Cal., Undergraduate Admissions-Subject Requirements, available at http://www.universityofcalifomia.edu/admissions/undergrad_adm/ paths_to_adm/freshman/subject_reqs.html.
75. U. of Cal., Undergraduate Admissions, available at http://www.universityofealifornia.edu/admissions/undergrad_adm/paths_to_adm/ freshman/scholarship_reqs.html.
76. Id.
77. Id.
78. Siobhan German, The 4 Percent Solution, NAT'L J., Mar. 20 1999; U. OF CAL., UNDERGRADUATE ADMISSIONS, available at http://www.universityofcalifornia.edu/admissions/ undergrad_adm/paths_to_adm/freshman/local_eligibility.html.
79. DOUGLASS, supra note 6, at 98-99, 116-17.
80. U. of Cal., Admission by Exception, available at http://www.universityofcalifornia.edu/admissions/undergrad_adm/paths_to_adm/ exception.html.
81. The Regents of the U. of Cal. Current Policies, available at http://www.universityofcalifornia.edu/regents/policies/6160.html.
82. BOARS REVISED ELIGIBILITY REFORM PROPOSAL, supra note 35, at 5 (noting that university-wide only "about 2% of all freshman admission offers [go] to technically ineligible students"); see, e.g., Robert Faturechi, Program Targets Applicants with Special Circumstances, DAILY BRUIN (UCLA), May 24, 2005, available at http://www.dailybruin.ucla.edu/news/2005/mag/ 24/program-targets-applicants-wit/ (noting that UCLA admits only 2% of students by exception, and that the bulk of these students are athletes). The concept of admission by exception has deep historical roots. After World War I, the UC Academic Senate formalized and expanded its already existing policy of admitting "by exception" those students who did not meet the basic academic criteria for admission. These students included war veterans, exceptionally talented musicians and artists, students in rural areas, and students from disadvantaged families. DOUGLASS, supra note 6, at 39. In the late 1960s and 1970s, racial segregation in housing gave rise to a pattern where certain racial minorities, particularly Latina/os and African Americans, attended underfunded K-12 schools. Id. at 64-65. At the same time, the UC system raised its academic requirements and began to use standardized test scores in admissions decisions, which had a predictable impact on students in disadvantaged schools. Id. at 93-119. Partly in direct response to these inequalities, and partly in response to political pressures from lawmakers, the UC system began to integrate race into its admissions decisions, including admission by exception. Id. Over time, considerations of race grew more central to the "subjective" considerations for admission by exception. To some extent, the proponents of SP-1 and Proposition 209 were responding to perceived abuses in this regard. Id. at 159-74 (arguing that the focus on racial equality, to the exclusion of other subjective considerations, left the University vulnerable to the attacks of Ward Connerly).
83. WENDY ERISMAN & SHANNON LOONEY, INSTITUTE FOR HIGHER EDUCATION POLICY, OPENING THE DOOR TO THE AMERICAN DREAM: INCREASING HIGHER EDUCATION ACCESS AND SUCCESS FOR IMMIGRANTS 34-35 (2007), available at http://www.ihep.org/organizations.php3?action=printContentItem&orgid= 104&typeID=906&itemID=20452 [hereinafter IHEP STUDY] (citing 2005 CPEC data.). As previously noted, for the most part, the CSU admissions criteria are similar to the UC criteria. However, CSU does not require the SAT II tests. Cal. St. U., Eligibility Index-California Residents, supra note 73. Instead CSU eligibility is determined by a numerical composite of high school grade point average (calculated by using a method similar to that used by the UCs) and an SAT or ACT score. Id.
84. IHEP STUDY, supra note 83, at 34-35. In contrast, half of Asian American high school students graduated eligible for admission to CSU and one-third graduated eligible for admission to UC. Id.
85. For every one hundred ninth graders entering California's high schools, only sixty-nine graduate, and only twenty-six graduate having completed the required a-g courses. Among American Indians, African Americans and Latina/os, however, only fifty-eight graduate, and only fifteen have completed the required a-g courses. OAKES ET AL., supra note 24, at 13-14.
86. It is important to note that the category of Asian Americans encompasses an extremely broad group of students, and that some of these sub-groups do not do as well in the aggregate as the category of Asian Americans as a whole. See also Victoria Choy, Note, Perpetuating the Exclusion of Asian Americans from the Affirmative Action Debate: An Oversight of the Diversity Rationale in Grutter v. Bollinger, 38 U.C. DAVIS L. REV. 545, 569 (2005) (noting how the Supreme Court implicitly accepts these generalizations). See generally Chuang, supra note 28. The data that I have drawn from tends to treat Asian Americans as a single group, but the figures cited here should not be read to suggest that various sub-group of Asian Americans access higher education in monolithic fashion.
87. WATSON SCOTT SWAIL ET AL., EDUC. POL'Y INST., LATINO YOUTH AND THE PATHWAY TO COLLEGE 28 (2004), available at www.educationalpolicy.org/pdf/Latino_Youth.pdf. These factors put students at greater risk for lower educational attainment. Id.
88. L. SCOTT MILLER, THE NAT'L RES. CTR. ON THE GIFTED AND TALENTED, PROMOTING SUSTAINED GROWTH IN THE REPRESENTATION OF AFRICAN AMERICANS, LATINO, AND NATIVE AMERICANS AMONG TOP STUDENTS IN THE UNITED STATES AT ALL LEVELS OF THE EDUCATION SYSTEM 2 (2004), available at http://www.eric.ed.gov/ERICWebPortal/custom/portlets/recordDetails/detailmini. jsp?_nfpb=true&_&ERICExtSearch_SearchValue_0=ED485166& ERICExtSearch_SearchType_0=no&accno=ED485166.
89. Id.; REBECCA ZWICK, FAIR GAME? THE USE OF STANDARDIZED ADMISSIONS TESTS IN HIGHER EDUCATION 133, 134 tbl. 5-5 (2002).
90. See supra Part III.A.
91. LISA CHAVEZ & GABINO ARREDONDO, U. OF CAL., BERKELEY CTR. FOR LATINO POL'Y RES., ACCESS TO THE UNIVERSITY OF CALIFORNIA FOR GRADUATES OF LOW-API HIGH SCHOOLS Í (2006), available at http://repositories.cdlib.org/cgi/viewcontent.cgi?article= 1015&context=issc/clpr (noting limited access for students in low Academic Performance Index (API) schools, where "nearly 60 percent of students were eligible for free or reduced meals and only 18 percent came from families with at least one college/professionally educated parent").
92. Id.
93. OAKES ET AL., supra note 24, at 16, 20-23. For instance, only 30% of schools enrolling 90-100% of African Americans and Latina/o students have sufficient college preparatory courses, in comparison to 55% of schools where White and Asian students are in the majority that offer a sufficient number of such courses. Id. at 21. Overall, less than half of the comprehensive high schools in the state of California meet the minimum threshold of a-g courses required to provide all students with the opportunity to enroll in sufficient college preparatory courses. Id. at 20. See also LISA CHAVEZ, ET AL, U OF CAL., BERKELEY CTR. FOR LATINO POL'Y RES., IS THE BAY AREA PREPARING LATINO HIGH SCHOOL GRADUATES FOR COLLEGE? A STATISTICAL PORTRAIT OF COLLEGE PREPARATION IN THE SAN FRANCISCO BAY AREA 4 (2007), available at http://repositories. cdlib.org/issc/clpr/pr/ChavezMedinaArredondo2007/.Chavez, et al., found that in 1985, only 16% of Latina/os in the Bay Area satisfactorily completed a-g coursework, compared to 26% of the general population, and that: Ten years later, more Latino graduates completed the a-g coursework series (23 percent) yet they were still less likely to do so in comparison to all graduates (35 percent). The a-g completion rate for Latinos and African Americans has remained relatively flat since 1995, a time period when the state was purportedly mandated to ensure that "all California children are provided with the tools to compete in our society" in the wake of Proposition 209. Id. at 3.
94. OAKES ET AL., supra note 24, at 12; see also id. at 21-22 (discussing racial disparities in access to advanced a-g courses).
95. Id. at 23 (citing a study finding that "once school size was taken into account, the relationship between the racial composition of the schools and AP offerings was strong: the larger the percentage of African American and Latinos, the fewer the AP courses schools offer"); see also Richard Frankel, Proposition 209: A New Civil Rights Revolution?, 18 YALE L. & POL'Y REV. 431, 433-35 (2000) (summarizing the Rios v. Regents of the University of California class action lawsuit filed in 1999, which alleged that the University of California's admissions policies, and particularly the extra point for honors and AP coursework, had a disproportionately negative impact on underrepresented minorities); Roslyn Arlin Mickelson, Segregation and the SAT, 67 OHIO ST. L.J. 157, 183-84 (2006) (discussing the relationship between AP course availability and the racial composition of California high schools).
96. ZWICK, supra note 89; see also Sigal Alon & Marta Tienda, Diversity, Opportunity, and the Shifting Meritocracy in Higher Education, 72 AM. SOC. REV. 487, 488 (2007) ("[B]lack and Hispanic students average lower scores on their College Board exams compared with Asians and whites."); Guinier, supra note 1, at 146 & n.135.
97. Peter Sacks, Standardized Testing: Meritocracy's Crooked Yardstick, in LEARNING FROM CHANGE, 331 (Deborah DeZure ed., 2000); see also NICHOLAS LEMANN, THE BIG TEST: THE SECRET HISTORY OF THE AMERICAN MERITOCRACY 155-56 (1999); ZWICK, supra note 89, at 133 (noting correlation between socioeconomic status and test scores as well as grades); Susan Strum & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CALIF. L. REV. 953, 988 (1996) (noting that correlation between SAT scores and family income is significantly higher than the improvement in predictive outcomes achieved by supplementing GPA with the SAT).
98. ZWICK, supra note 89, at 162 (noting, inter alia, that "coached students tended to come from more educated and affluent families"). Of course, the extent to which coaching and test preparation actually improves scores is a matter of some dispute. Id. at 159-67. Regardless, the test preparation industry is booming in California. See Seema Mehta, Students Believe in the SAT, L.A. TIMES, Mar. 1, 2008, at B1.
99. ZWICK, supra note 89, at 135.
100. Diane F. Halpern, Validity, Fairness and Group Differences: Tough Questions for Selection Testing, 6 PSYCHOL., PUB. POL'Y & L. 56 (2000). A recent study noted that even when all of the UC eligibility components - GPA and combined test scores - are taken into account, they account for only 27% of the total variance in cumulative college grades. SAUL GEISER & MARIA VERONICA SANTELICES, CTR. FOR STUD. IN HIGHER EDUC., VALIDITY OF HIGH SCHOOL GRADES IN PREDICTING STUDENT SUCCESS BEYOND THE FRESHMAN YEAR 12 (2007), available at http://cshe.berkeley.edu/publications/publications.php?id=265.
101. See, e.g., BOARS REVISED ELIGIBILITY REFORM PROPOSAL, supra note 35; DOUGLASS, supra note 6, at 214-33 (discussing UC President Atkinson's proposal to end the use of the SAT in UC eligibility determinations); Larry Gordon, UC Panel Seeks to Drop SAT Tests from Admissions Requirement, L.A. TIMES, Mar. 16, 2008, at B1 (discussing UC's Board of Admissions and Relations with Schools (BOARS) proposal to eliminate the SAT II from UC eligibility criteria).
102. SUSAN W. KAUFMANN, THE POTENTIAL IMPACT OF THE MICHIGAN CIVIL RIGHTS INITIATIVE ON EMPLOYMENT, EDUCATION AND CONTRACTING 9 (2006), available at http://www.umich.edu/ ∼ccw/PDFs/MCRIrace10-06.pdf.
103. DOUGLASS, supra note 6, at 193-99.
104. Id.; see also Patricia Qandara, Addressing Educational Inequalities for Latino Students: The Politics of "Forgetting", 4 J. OF HISP. HIGHER ED. 295, 310 (2005) (criticizing severe 2000 budget cuts for outreach programs like the Puente program).
105. Effective in 2007, the minimum GPA for UC admissions was raised from a 2.8 to a 3.0. Anne Burke, Regents Raise Minimum GPA, UCLA TODAY, Sept. 28, 2004, available at http://www.today.ucla.ude/2004/040928/ news_gpa.html.
106. HELLER, supra note 37, at 10 (noting that the tuition increases of the 1980s and 1990s were unprecedented in size).
107. NAT'L CTR. FOR PUB. POL'Y AND HIGHER EDUC., LOSING GROUND: A NATIONAL STATUS REPORT ON THE AFFORDABILITY OF AMERICAN HIGHER EDUCATION 5 (2002) [hereinafter LOSING GROUND], available at http://www.highereducation.org/reports/losing__ground/ar.shtml.
108. Id. For a two-year college, the cost rose from 6% to 12% of income, while for a four-year college, the cost rose from 13% to 25% of income. Id. Between 1993 and 2004, average tuition at private, nonprofit four-year colleges rose 81%, a rate more than double the rate of inflation. Jonathan D. Glater & Alan Finder, In a New Twist on Tuition Game, Popularity Raises with the Price, N.Y. TIMES, Dec. 12, 2006, at A1.
109. LOSING GROUND, supra note 107, at 6, 9. Moreover, while need-based aid has declined relative to overall tuition, programs for students without demonstrated financial need have been on the rise. Id. at 6.
110. HELLER, supra note 37, at 20.
111. Id.
112. LOSING GROUND, supra note 107, at 23.
113. Patrick M. Callan & Joni E. Finney, State Policies for Affordable Higher Education, in LOSING GROUND, supra note 107, at 10. The other states to receive a grade of "A" were Illinois, Minnesota, North Carolina and Utah. Id.
114. Cal. St. U., Campus Mandatory Fees, http://www.calstate.edu/budget/ FeeEnrll_Info/FeeInfo/Campus_Mand_Fees/Mand_Fees_ToC.shtml. The fee schedule link for the 2007-2008 academic year indicates that in that year, California resident fees were $2,772. Id. The fee schedule link for the 2000-2001 academic year indicates that in 2000, those fees were $1,839. Id.
115. U. of Cal. Off. of the President, Facts About Student Fees, http://budget.ucop.edu/fees.html. The link to the fee information for the 2007-2008 academic year indicates that in 2007, California resident fees were $5,850. Id. In contrast, the link to the fee information for the 2000-2001 academic year indicates that at that time, fees were $2,716. Id.
116. See CAL. COMMUNITY C. CHANCELLOR'S OFF., ADDENDUM: IMPACTS OF STUDENT FEE INCREASE AND BUDGET CHANGES ON ENROLLMENT IN THE CALIFORNIA COMMUNITY COLLEGES: ANALYSIS OF FEE INCREASE FROM $18 TO $26 PER UNIT 3 (2005), available at http://www.cccco.edu/Portals/4/TRIS/research/reports/impact_study_18_26. pdf.
117. See, e.g., U. OF CAL. OFF. OF THE PRESIDENT, KEY POINTS ON PROPOSED CUTS TO UC's BUDGET (2008), available at http://www.evc.uci.edu/ budget/Budget%20talking%20points%201-22-081.pdf (proposing the need for both spending cuts and fee hikes to deal with pending budget reductions).
118. See discussion infra Part III.B.3 and accompanying text.
119. MILLER, supra note 88 at v, 2.
120. OAKES ET AL., supra note 24, at 24-26; cf. Jonathan D. Glater & Alan Finder, Diversity Plans Based on Income Leave Some Schools Segregated, N.Y. TIMES, July 15, 2007, at A24 (noting that efforts to integrate public high schools along socio-economic lines did not necessarily lead to racial desegregation).
121. See infra at Parts III.B.2-4.
122. MILLER, supra note 88, at 2.
123. One study has shown significant GPA differences across race: In a 1995 study, researchers from the National Center for Education Statistics calculated the proportion of college-bound high school seniors who met academic standards typically used by selective colleges in making admissions decisions. The analysis produced some striking findings about the percentage of students with grade point averages of at least 3.5: 29% of Asian Americans, 21% of whites, 10% of Latinos, and 4% of African Americans had GPAs this high, a hefty difference among ethnic groups. Rebecca Zwick, Making the Grade: The SAT versus the GPA, NAT'L CROSSTALK (2001), available at http://www.highereducation.org/crosstalk/ct0701/voices0701-makingthegrade. shtml; see also ZWICK, supra note 89, at 133; BOWEN & BOK, supra note 36, at 272 ("Nationally, we know that blacks are only half as likely as whites to finish in the top 10 percent of the high school class and less than 40 percent as likely to earn an A average.").
124. See supra Part III.A.I; see also Goodwin Liu, Seattle and Louisville, 95 CALIF. L. REV. 277, 290-91 (2007) ("Black and Latino students who attend majority-white or majority-Asian public high schools have significantly higher rates of eligibility for enrollment in the University of California (UC) than their counterparts in majority-black or majority-Latino high schools").
125. OAKES ET AL., supra note 24, at 24-25. For more detailed discussions of the tracking problem, see JEANNIE OAKES, KEEPING TRACK: HOW SCHOOLS STRUCTURE INEQUALITY XI, 191 (2d. ed. 2004); Jeannie Oakes & Gretchen Guiton, Matchmaking: The Dynamics of High School Tracking Decisions, 32 AM. EDUC. RES. J. 3, 3 (1995) ("[S]tudents are unevenly distributed among tracks, with low-income and minority students more likely to be in low ability classes for the non-college-bound.").
126. OAKES ET AL., supra note 24, at 24-26; see also Angela Onwuachi-Willig, For Whom Does the Bell Toll: The Bell Tolls for Brown?, 103 MICH. L. REV. 1507, 1528-29 (discussing a study finding similar tracking phenomenon in Shaker Heights, Ohio).
127. Elaine Korry, Caliornia. Teachers May Get Racial Sensitivity Training (National Public Radio broadcast Nov. 20, 2007), available at http://www.npr.org/templates/story/story.php?storyId=16466271. The clear existence of a racial achievement gap in California spurred a call for diversity training of elementary school educators. Id.
128. MILLER, supra note 88, at 20; see also Christopher Jencks & Meredith Phillips, The Black-White Test Score Gap: An Introduction in THE BLACK-WHITE TEST SCORE GAP 1-2 & n.3 (Christopher Jencks & Meredith Phillips eds., 1998) (noting that the Black-White test score gap persisted even after accounting for socioeconomic status).
129. MILLER, supra note 88, at 7.
130. Id. at 8; see also id. at 9-19 (discussing gaps in AP test scores).
131. See, e.g., Saul Geiser & Roger E. Studley, Research Addendum: Additional findings on UC and the SAT (2003), available at http://www.ucop.edu/news/sat/resaddendfinal.pdf.
132. See, e.g., William C. Kidder & Jay Rosner, How the SAT Creates "Built-in Headwinds ": An Educational and Legal Analysis of Disparate Impact, 43 SANTA CLARA L. REV. 131 (2002).
133. See William H. Angoff, Perspectives on Differential Item Functioning Methodology, in DIFFERENTIAL ITEM FUNCTIONING 3, 17 (Paul W. Holland & Howard Wainer eds., 1993) ("For if the criterion is itself biased to some degree, then the application of a DIF analysis will certainly be flawed; further, if bias is pervasive in the criterion, then any attempt to identify bias in its component items will inevitably fail.").
134. Kidder & Rosner, supra note 132, at 156.
135. This question is contested. See ZWICK, supra note 89, at 109-42 (reviewing the arguments that tests "discriminate" against people of color, stressing the importance of proper item screening, and concluding that the test score differentials reflect disparate access to educational opportunity).
136. Claude Steele, Stereotype Threat and African-American Student Achievement, in YOUNG, GIFTED AND BLACK 109, 111 (Theresa Perry et al. eds., 2003).
137. See MILLER, supra note 88, at 24.
138. Id. at 25.
139. CAL. POSTSECONDARY EDUC. COMM'N, UNIVERSITY ELIGIBILITY: ARE LOCALLY REPORTED FIGURES COMPARABLE TO THE COMMISSION'S ESTIMATES? 2 (June 2006), available at http://www.cpec.ca.gov/SecondPages/CommissionReports.asp.
140. BD. OF ADMISSIONS AND REL. WITH SCHOOLS, U. OF CAL., A PROPOSAL TO REFORM UCS FRESHMAN ELIGIBILITY POLICY, BOARD OF ADMISSIONS AND RELATIONS WITH SCHOOLS 6 (2007), available at http://senate.ucsc.edu/cafa/ UCeligibilityreform061107.pdf.
141. OAKES ET AL., supra note 24, at 20-32.
142. See WILLIAM JULIUS WILSON, THE BRIDGE OVER THE RACIAL DIVIDE: RISING INEQUALITY AND COALITION POLITICS 97 (1999) (noting the "cumulative effects of race or ethnicity" that are simply not taken into account by "conventional measures of performance"); Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 COLUM. L. REV. 928, 961 (2001) ("[S]tudents of color who are privileged by class or educational background nonetheless experience subordination by ubiquitous social racism.").
143. PEW HISP. CTR., STATISTICAL PORTRAIT OF HISPANICS IN THE UNITED STATES, 2006, tbl.6 (Jan. 23, 2008), available at http://pewhispanic.org/ factsheets/factsheet.php?FactsheetID=35.
144. IHEP STUDY, supra note 83, at 22.
145. Id at 27.
146. Id. at 14.
147. Id.
148. Citizenship status also plays a role. Among people in the college-going ages of eighteen to twenty-four, immigrants were only slightly less likely to be enrolled in college than the native born. However, this hopeful statistic masks the important role that citizenship plays in college enrollment. While 47% of naturalized citizens were enrolled in college in 2005, only 22% of non-citizens were enrolled. Id. at 15.
149. Id. at 24-25 (reporting that immigrants are disproportionately likely to lack English proficiency).
150. OAKES ET AL., supra note 24, at III, 26. Even if they fail to meet eligibility and admissions criteria for a UC or CSU campus upon graduation from high school, English language learners can qualify for a position at a California Community College (CCC) by graduating from high school, and later securing a position at a UC (or a CSU) by completing a two-year term of study at the CCC. Due to cost, however, this path is becoming increasingly more difficult for low-income and Latina/o students to access. See infra Part III.B.3.
151. JEANNE BATALOVA, MIGRATION POL'Y INST, SPOTLIGHT ON LIMITED ENGLISH PROFICIENT STUDENTS IN THE UNITED STATES (2006), available at http://www.migrationinformation.org/USfocus/display. cfin?ID=373.
152. María Pabón López, Reflections on Educating Latino and Latina Undocumented Children Beyond Plyler v. Doe, 35 SETON HALL L. REV. 1373, 1381-82 (2005).
153. Id. (citing CINTHIA SALINAS & MARIA E. FRANQUIZ, Making Migrant Children and Migrant Education Visible, in SCHOLARS IN THE FIELD: THE CHALLENGES OF MIGRANT EDUCATION xi (Cinthia Salinas & Maria E. Franquiz eds., 2003)).
154. Pabón López, supra note 152, at 1382; Michael A. Olivas, Storytelling Out of School: Undocumented College Residency, Race, and Reaction, 22 HASTINGS CONST. L.Q. 1019, 1081 (1995).
155. Pabón López, supra note 152, at 1382.
156. One study based on U.S. Census Bureau data concluded that approximately 42% of second generation Latina/os between the ages of eighteen and twenty-four attended college, while only 26% of first generation Latina/os did so. Muñiz, supra note 38, at 15 (citing RICHARD FRY, PEW HISP. CTR., LATINOS IN HIGHER EDUCATION: MANY ENROLL, TOO FEW GRADUATE (2002), available at http://pewhispanic.org/files/ reports/11.pdf).
157. RICHARD FRY, PEW HISP. CENTER, LATINOS IN HIGHER EDUCATION: MANY ENROLL, TOO FEW GRADUATE (2002), available at http://pewhispanic.org/files/reports/11.pdf.
158. IHEP STUDY, supra note 83, at 15.
159. Id; see also id. at 27 (comparing the representation of these immigrant groups in the general population with their representation in colleges and universities).
160. Id. at 35.
161. Id at 35 (citing statistics from the U.S. Department of Education's National Center for Education Statistics and the U.S. Census Bureau's 2005 American Community Survey).
162. Id. at 30.
163. Id at 24-25.
164. Id. at 28.
165. Id. at 29.
166. Nearly 85% of White students between the ages of eighteen and twenty-four are enrolled full time, compared to only 75% of Latina/o students. FRY, supra note 157, at vi.
167. See supra note 151 and accompanying text.
168. See infra Part III.B.3.b.
169. See supra Part III.A.4.
170. See Aaron Edlin & Ian Ayres, Why Legislating Low Tuitions for State Colleges Is a Mistake: They Just Subsidize the Rich, FINDLAW LEGAL NEWS & COMMENT, Oct. 30, 2003, http://writ.news.findlaw.com/commentary/20031030_ayres.html; see also Glater, supra note 108 (discussing Ursinus and other private schools pursuing this strategy).
171. See Edlin & Ayres, supra note 170.
172. LOSING GROUND, supra note 107, at 23.
173. HELLER, supra note 37, at 8.
174. Muñiz, supra note 38, at 8, 9; Donald E. Heller, The Effects of Tuition and State Financial Aid on Public College Enrollment, 23 REV. OF HIGHER EDUC. 65, 77 (1999).
175. Muñiz, supra note 38, at 10-11.
176. MARIA ESTELA ZARATE & HARRY P. PACHON, THE TOMÁS RIVERA POL'Y INST., PERCEPTIONS OF COLLEGE FINANCIAL AID AMONG CALIFORNIA LATINO YOUTH 5 (2006), available at http://www.trpi.org/PDFs/Financial_Aid_Surveyfinal6302006. pdf. Fewer than 20% of them accurately assessed the costs. Id. Of those surveyed, 79% were high school graduates. Id.
177. Id. 45% of Latina/o youth who did not attend college had never heard of the Cal Grant program. Id. 51% of Latina/o young adults who did not attend college had never heard of Pell Grants, the federal grant program for low income students. Id.
178. Muñiz, supra note 38, at 9 (citing Michael Mumper, Beyond Financial Aid: Alternative Approaches to Improving College Participation, 22 REV. OF HIGHER EDUC. 83-97 (1998)).
179. LOSING GROUND, supra note 107, at 6.
180. See supra Part III.B.1.
181. Jonathan D, Glater, Offering Perks, Lenders Court Colleges' Favor, N.Y. TIMES, Oct. 24, 2006, at A1.
182. LOSING GROUND, supra note 107, at 7.
183. Id.
184. Id.
185. Andy Guess, "Redlining" or Reasonable Criterion?, INSIDE HIGHER EDUC., July 5, 2007, available at http://www.insidehighered.com/news/2007/07/05/loans; see also Associated Press, Cuomo Charges "Redlining" in Student Loan Probe, MSNBC.COM, June 19, 2007, http://www.msnbc.msn.com/id/ 19316230/ (summarizing New York Attorney General Andrew Cuomo's testimony that lenders are "making generalized judgments about student and parent credit risk based on a student's 'school neighborhood'").
186. See Guess, supra note 185; Associated Press, supra note 185.
187. Elizabeth Redden, Where the Hispanic Students Are (And Aren't), INSIDE HIGHER EDUC., Aug. 17, 2007, available at http://www.insidehighereducation.com/layout/set/print/news/2007/08/17/ hispanics (reporting on a study that found that nearly half of all Latino/a undergraduates enroll in just 8% of the nation's colleges).
188. Latina/os are more likely than the general population to enroll in two-year colleges and, when they do enroll in a four-year college, are only half as likely as Whites to enroll in a selective four-year college. Muñiz, supra note 38, at 11, 13.
189. Students who enroll in less selective four-year institutions are less likely to obtain degrees than students at more selective institutions. Id. at 14.
190. See supra text accompanying notes 114-17 (discussing fee increases at California's institutions of higher learning).
191. Rivas et al., supra note 53, at 1. Transfer from a CCC to a CSU or UC school is a small but important path by which some Latina/os ultimately obtain a four year college degree. See id. at 2. The authors note that while fewer than 10% of CCC students actually transfer to a four-year institution, 40% of CCC students indicate that this is their goal, and an additional 28% were undecided. Id. The authors suggest that better counseling may improve the number of students who transfer to four year college institutions. Id. To the extent cost becomes an increasing barrier to CCC access; this will negatively impact the transfer pipeline for Latina/o students from the CCCs to the CSU and UC systems.
192. Because immigrant Latina/os are a subset of the Latina/os discussed in the previous section, some of the differential response of Latinas/os discussed in the previous subsection is attributable to the differential response of Latina/o immigrants discussed in this section. It is impossible to determine the degree of conflation among these two data sets without empirical study. Nevertheless, it is worth analyzing the distinct reasons that Latina/o immigrants (as opposed to Latina/os in general) may be hurt by rising costs.
193. Muñiz, supra note 38, at 8.
194. IHEP STUDY, supra note 83, at 20-21.
195. Id. at 21.
196. Id. (citing INTER-AMERICAN DEVELOPMENT BANK, SENDING MONEY HOME: LEVERAGING THE DEVELOPMENT IMPACT OF REMITTANCES (2006)). Remittances provide a critical source of revenue in some economies. In Mexico, for example, remittances account for one of the three largest revenue producing sources, along with oil revenue and tourism. Ranko Shiraki Oliver, In the Twelve Years of NAFTA, the Treaty Gave to Me... What Exactly?: An Assessment of Economic, Social, and Political Developments in Mexico Since 1994 and Their Impact on Mexican Immigration into the United States, 10 HARV. LATINO L. REV. 53, 100, 105 (2007). Until recently, remittances from the United States to Latin American countries have been on the rise. A 2006 study by the Inter-American Development Bank found that American migrants working in the United States sent around $45 billion to their homelands in that year, up from $30 billion in 2004. Press Release, Inter-American Development Bank, Migrant Remittances from the United States to Latin America to Reach $45 Billion in 2006, Says IDB (Oct. 16, 2006), available at http://www.iadb.org/NEWS/articledetail.cfm?_artid= 3348&language=En. Over the last year, however, remittances from Mexican immigrants have fallen. The percentage of Mexicans who regularly sent money home fell from 71% in 2006 to 64% in the first half of 2007. Julia Preston, Fewer Mexican Immigrants Are Sending Money Back Home, Bank Says, N.Y. TIMES, Aug. 9, 2007, at A10. The change appears to be occurring because more immigrants are less certain about their future in the United States given the rising tide of immigration enforcement and antiimmigrant sentiment. Id.
197. Previous studies have revealed that African American and White students in the same income bracket have very different economic profiles. See, e.g., GUINIER & TORRES, supra note 5, at 47 (summarizing accounts of these differences); Ouinier, supra note 1, at n.115. More research may be needed to be done in this regard with regard to Latinas/os and immigrants.
198. IHEP STUDY, supra note 83, at 20.
199. Id.
200. Margie K. Shields & Richard E. Behrman, Children of Immigrant Families: Analysis and Recommendations, 14 FUTURE OF CHILD. 4, 7 (2004) ("Poverty rates for children in immigrant families are substantially higher than for children in U.S.-born families.").
201. IHEP STUDY, supra note 83, at 25.
202. Id.
203. See supra notes 182-84 and accompanying text.
204. IHEP STUDY, supra note 83, at 21, 25. This pattern does not hold true at the graduate school level. Id. at 27.
205. Id. at 35. In the 2003-2004 school year, for example, 70% of immigrant students in public higher education were enrolled at a CCC, compared with 62% of the non-immigrant student population. Id.
206. Roberta G. Gonzalez, Wasted Talent and Broken Dreams: The Lost Potential of Undocumented Students, IMMIGR. POL'Y IN FOCUS, Oct. 2007, at 1, 2. Financial obstacles are compounded by legal exclusion from the workforce. Id. at 1.
207. JEFFREY S. PASSEL, THE URBAN INST., FURTHER DEMOGRAPHIC INFORMATION RELATING TO THE DREAM ACT (2003), available at http://www.nicl.org/immlawpolicy/DREAM/DREAM_Demographics.pdf.
208. JEANNE BATALOVA & MICHAEL FIX, MIGRATION POL'Y INST., NEW ESTIMATES OF UNAUTHORIZED YOUTH ELIGIBLE FOR LEGAL STATUS UNDER THE DREAM ACT 4 (2006), available at www.migrationpolicy.org/pubs/ Backgrounder1_Dream_Act.pdf.
209. Plyler v. Doe, 457 U.S. 202 (1982). For a recent description of the litigation in Plyler, see Barbara Belejack, A Short Lesson in Equal Protection, TEX. OBSERVER, July 13, 2007, available at http://www.texasobserver.org/article.php?aid=2548; see also Michael A. Olivas, Plyler v. Doe, the Education of Undocumented Children, and the Polity, in IMMIGRATION STORIES 197 (David A. Martin & Peter H. Schuck eds., 2005) (analyzing background of case).
210. But see Pabón López, supra note 152 (arguing that Plyler's reasoning today should be applied to higher education due to the changing nature of the economy).
211. Pub. L. No. 104-193, 110 Stat. 2105 (1996).
212. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546 [hereinafter IIRIRA] (amending 8 U.S.C. § 255(b)(1) (1996)).
213. Robert J. Birgeneau, Undocumented Students Deserve Aid Too, L.A. TIMES, July 7, 2007, at A19, available at http://www.latimes. com/news/opinion/la-oe-birgeneau7jul07, 0,7946142.story; see Laura S. Yates, Note, Plyler v. Doe and the Rights of Undocumented Immigrants to Higher Education: Should Undocumented Students Be Eligible for In-State College Tuition Rates? 82 WASH. U. L.Q. 585 (2004).
214. IHEP STUDY, supra note 83, at 35.
215. Id.
216. CAL. EDUC. CODE § 68130.5(a) (West 2003).
217. The multiple disadvantages imposed by undocumented status may even be impeding the positive effect that in-state tuition might otherwise have on Latina/o educational outcomes. AIMEE CHIN & CHINHUI JUHN, RICE U. JAMES A. BAKER III INST. FOR PUB. POL'Y, DOES REDUCING COLLEGE COSTS IMPROVE EDUCATIONAL OUTCOMES FOR UNDOCUMENTED IMMIGRANTS? 3 (2007), available at http://bakerinstitute.org/ Publication_List.cfm (noting that educational outcomes do not seem to be affected by in-state tuition and hypothesizing that "little time has elapsed since the state laws were passed and that unchanged federal policy on financial aid and legalization for undocumented students may dampen the state laws' benefits").
218. Birgeneau, supra note 213. Private scholarships are available for undocumented students. For a list of such scholarships, see, e.g., Mexican American Legal Defense and Educational Fund Scholarship List, http://www.maldef.org/pdf/Scholarships_072003.pdf.
219. Birgeneau, supra note 213.
220. Id.
221. Id.; see also Kathleen A. Connolly, Comment, In Search of the American Dream: An Examination of Undocumented Students, In-State Tuition, and the DREAM Act, 55 CATH. U. L. REV. 193, 193-94 (2005) (recounting the story of Angela Perez); Douglas McGray, This American Life: Just One Thing Missing, NEW AMERICA FOUNDATION, Apr. 8, 2007, http://www.newamerica.net/publications/articles/2007/ this_american_life_5124 (recounting the trials of an undocumented student at UCLA who dropped out before graduating); National Immigration Law Center, Students' Stories, http://www.nilc.org/immlawpolicy/DREAM/index.htm#iru_artcls.
222. NAT'L IMMIGR. L. CTR., DREAM ACT: BASIC INFORMATION (2007), available at http://www.nilc.org/immlawpolicy/DREAM/dream_basic_info_0406.pdf. For detailed discussions of past versions of the DREAM Act and arguments favoring its enactment, see Olivas, supra note 207, at 461-63; Raquel Aldana, On Rights, Federal Citizenship, and the "Alien", 46 WASHBURN L.J. 263, 278-81 (2007); Berta Hernández-Truyol & Justin Luna, Children and Immigration: International, Local, and Social Responsibilities, 15 B.U. PUB. INT. L.J. 297, 314-16 (2006); Rene Galindo et al., Dual Sources of Influences on Latino Political Identity: Mexico's Dual Nationality Policy and the DREAM Act, 11 TEX. HISP. J.L. & POL'Y 75, 93-95 (2005); Connolly, supra note 219; Susana Garcia, Comment, Dream Come True or True Nightmare? The Effect of Creating Educational Opportunity for Undocumented Youth, 36 GOLDEN GATE U. L. REV. 247 (2006); Youngro Lee, Note, To Dream or Not To Dream: A Cost-Benefit Analysis of the Development, Relief, and Education for Alien Minors (DREAM) Act, 16 CORNELL J.L. & PUB. POL'Y 231 (2006); Vicky J. Salinas, Comment, You Can Be Whatever You Want to Be When You Grow Up, Unless Your Parents Brought You to This Country Illegally: The Struggle to Grant InState Tuition to Undocumented Students, 43 HOUS. L. REV. 847 (2006); Andrew Stevenson, Note, DREAMing of an Equal Future for Immigrant Children: Federal and State Initiatives to Improve Undocumented Students ' Access to Postsecondary Education, 46 ARIZ. L. REV. 551 (2004).
223. NAT'L IMMIGR. L. CTR., supra note 222.
224. Julia Preston, In Increments, Senate Revisits Immigration Bill, N.Y. TIMES, Aug. 3, 2007, at A1. The DREAM Act has attracted the harsh criticisms of immigration restrictionists. Id. (noting opposition to the DREAM Act in the House of Representatives and quoting Representative Brian P. Bilbray calling it "the Nightmare Act"); FED'N FOR AM. IMMIGR. REFORM, S. 1545, DEVELOPMENT RELIEF AND EDUCATION FOR MINORS (DREAM) ACT, available at http://www.fairus.org/site/PageServer?pagename= leg_legislationd042 (noting FAIR'S opposition to DREAM Act legislation and enumerating reasons).
225. For a discussion of the problems of pre-209 affirmative action programs in California, see DOUGLASS, supra note 6, at 151-83.
226. See supra Part II.
227. Id. Professor Guinier refers to this construction of academic merit as "skinny merit." See Guinier, supra note 1, at 152.
228. U. OF CAL., COMPREHENSIVE REVIEW FACTORS FOR FRESHMAN APPLICANTS, available at http://www.universityofcalifornia.edu/admissions/general_info/uc_reviews/ freshman_app.html (listing fourteen factors considered by selective campuses in admissions).
229. Id. See, e.g., U. OF CAL., DAVIS, UNDERGRADUATE ADMISSIONS APPLICATION CRITERIA FOR FRESHMAN COMPREHENSIVE REVIEW SELECTION PROCESS [hereinafter UCD ADMISSIONS POLICIES], available at http://admissions.ucdavis.edu/ admissions/fr_selection_process.cfm (awarding points to applications from: first generation students, nontraditional (low income) students, students showing "individual initiative," and other factors); U. OF CAL., SANTA BARBARA, ADMISSIONS REVIEW PROCESS [hereinafter UCSB ADMISSIONS POLICIES], available at http://www.admissions.ucsb.edu/ SelectionProcess.asp?section=selectionprocess&subsection= reviewprocess&selectionrype=prospective_freshman (ranking as "outstanding," "significant," "good," or "typical" a number of factors such as a students' challenges, leadership and diversity of intellectual experiences).
230. See BOARS REVISED ELIGIBILITY REFORM PROPOSAL, supra note 35, at 5; U. OF CAL., ADMISSION BY EXCEPTION, supra note 80.
231. The use of comprehensive review within the UC system operates as a form of "sponsored mobility" that supplements the otherwise purely numeric approach to eligibility. "Sponsored mobility" signifies a system in which fixed admission criteria are supplemented with discretion. Guinier, supra note 1, at 151. For her critique of sponsored mobility, see id. at 153-54.
232. See, e.g., U. OF CAL., BERKELEY, UC BERKELEY FRESHMAN SELECTION PROCESS, available at http://students.berkeley.edu/admissions/freshmen.asp?id= 56&navid=N [hereinafter BERKELEY ADMISSIONS] ("consideration is given ... to an applicant's achievement relative to that of others in his or her high school"); U. OF CAL., LOS ANGELES, UNDERGRADUATE ADMISSIONS AND RELATIONS WITH SCHOOLS, FRESHMAN SELECTION- FALL 2007, available at http://www.admissions.ucla.edu/Prospect/ Adm_fr/FrSel.htm [hereinafter UCLA ADMISSIONS] ("In evaluating the context in which academic accomplishments have taken place, readers consider the strength of the high school curriculum, including the availability of honors and Advanced Placement courses, and the total number of college preparatory courses available, among other indicators of the resources available within the school. When appropriate and feasible, readers look comparatively at the achievements of applicants in the same pool who attended the same high school and therefore might be expected to have similar opportunities to achieve.").
233. See BERKELEY ADMISSIONS, supra note 232; UCLA ADMISSIONS, supra note 232; see also MICHAEL BROWN ET AL., CHIEF JUSTICE EARL WARREN INST. ON RACE, ETHNICITY & DIVERSITY, CALIFORNIA AT A CROSSROADS: CONFRONTING THE LOOMING THREAT TO ACHIEVEMENT, ACCESS AND EQUITY AT THE UNIVERSITY OF CALIFORNIA AND BEYOND 5 (2006), available at http://www.law.berkeley.edu/centers/ewi/research/ highereducation/ (discussing comprehensive review in selective admissions and recommending the expansion of comprehensive review to determinations of UC eligibility to capture "the broad array of students' background information").
234. BROWN ET AL., supra note 233, at 5.
235. Comprehensive review is not a panacea. Even at institutions with comprehensive review processes in place, GPA and test scores continue to account for the bulk of admissions decision-making. Frances E. Contreras, The Reconstruction of Merit Post-Proposition 209, 19 EDUC. POL'Y 371, 384-85, 387-88 (2005). Moreover, scholars are only beginning to systematically study how to define and predict student success using non-traditional measures of student merit, although efforts in this regard are ongoing. Rachel F. Moran, Of Doubt and Diversity: The Future of Affirmative Action in Higher Education, 67 OHIO ST. L.J. 201, 234 (2006).
236. See supra note 78.
237. See, e.g., Gail Heriot, Thoughts on Grutter v. Bollinger and Gratz v. Bollinger as Law and as Practical Politics, 36 LOY. U. CHI. L.J. 137, 169 & n.157 (2004) (describing the 4% plan as a legal "gray area," and one of "controversial legal status").
238. See, e.g., Heather Mac Donald, Elites to Anti-Affirmative- Action Voters: Drop Dead, CITY J. (New York), Winter 2007, available at http://www.city-journal.org/html/17_1_prop209.html.
239. See, e.g., Defining Diversity Down, WALL ST. J., Jan. 9, 2008 ("[T]he UC Board of Admissions proposal sounds like a declaration of academic surrender. It's one more depressing signal that liberal elites have all but given up on poor black and Hispanic kids. Because they don't think closing the achievement gap is possible, their alternative is to reduce standards for everyone. Diversity so trumps merit in the hierarchy of modern liberal values that they're willing to dumb down the entire university system to guarantee what they consider a proper mix of skin tones on campus."). Missing from the editorial is any recommendation that taxes be raised or spending increased for K-12 education. For the Journal editorial board, as for Connerly, "closing the achievement gap" is a passive concept. Id. See also Peter Schrag, UC admissions: Slouching Toward Affirmative Action?, SACRAMENTO BEE, Nov. 7, 2007, at B7 ("Any plan to change the undergraduate admissions system at the University of California is likely to bring charges that it's yet another politically correct attempt to reinstitute race preferences. That applies especially to reforms that de-emphasize grades and test scores.").
240. Ward Connerly, A Return to Race Preferences?, MONTECITO J. (Montecito, Cal.), Jan. 4, 2007, available at http://www. montecitojournal.net/archive/13/1/631/ (criticizing UCLA's comprehensive review process for increasing the number of African Americans admitted).
241. Defining Diversity Down, supra note 239. The notion that some pure standards are being tainted in order to admit African Americans and Latina/os, and that this effort reflects a "dumbing down" reflects how successfully Proposition 209's race-neutrality principle has come to be deployed with a racism that is only thinly veiled.
242. See discussion supra note 82 (discussing the history of admission by exception in the UC system).
243. For a discussion of the mission of public institutions of higher learning and the impact this should have on admissions policy, see Guinier, supra note 1, at 125-36.
244. DOUGLASS, supra note 6, at 66.
245. Liu, supra note 4, at 2060-67.
246. See, e.g., Todd Donovan, Direct Democracy as "Super-precedent"?: Political Constraints of Citizen-Initiated Laws, 43 WILLAMETTE L. REV. 191, 216 (2007) (attributing California's relative decline to "changing income levels, increased education spending in other states, 16 years of fiscal conservatives in the governor's office (1983-99),... decisions about allocating revenues, as well as constraints imposed by citizen initiatives over the last 30 years," but not Proposition 13).
247. CAL. CONST. art. XIIIA, §§ 1-6.
248. See, e.g., ARTHUR O'SULLIVAN ET AL., PROPERTY TAXES AND TAX REVOLTS: THE LEGACY OF PROPOSITION 13, 97-109 (1995); Daniel L. Rubinfeld, California Fiscal Federalism: A School Finance Perspective, in CONSTITUTIONAL REFORM IN CALIFORNIA 431, 434-43 (Bruce E. Cain & Roger G. Noll eds., 1995) (discussing the negative impact of Proposition 13 on California school funding); see also William A. Fischel, How Serrano Caused Proposition 13, 12 J.L. & POL. 607, 607-13 (1996) (citing O'SULLIVAN, ET AL, supra note 246); W. NORTON GRUBB & LAURA GOE, SCH. OF EDUC., U. OF CAL., BERKELEY, THE UNENDING SEARCH FOR EQUITY: CALIFORNIA POLICY, THE "NEW" SCHOOL FINANCE, AND THE Williams CASE 8 (2002), available at http://www.decentschools.org/ expert_reports/grubb-goe_report.pdf. But see Donavan, supra note 246, at 216 (arguing that the effects are exaggerated).
249. William Fischel, for example, contends that Proposition 13 was a response to the California Supreme Court's decision in Serrano v. Priest, a major
250. DOUGLASS, supra note 6, at 154 (noting the confluence of immigration and budget cuts).
251. Kevin R. Johnson, A Handicapped, Not "Sleeping, " Giant: The Devastating Impact of the Initiative Process on Latina/o and Immigrant Communities, 96 CALIF. L. REV. _ (forthcoming Oct. 2008).
252. See KEVIN R. JOHNSON, THE "HUDDLED MASSES" MYTH: IMMIGRATION AND CIVIL RIGHTS 42 (2004).
253. Id.
254. See supra note 209 and accompanying text (discussing Plyler v. Doe).
255. See JOHNSON, supra note 252, at 42-46. This is not to discount the economic effect that undocumented migration has on the public fisc. In the short term, the taxation benefits that accrue through the taxation of the undocumented generally run to the federal government while the costs, principle among which is education, run to the states. ARISTEDE R. ZOLBERG, A NATION BY DESIGN: IMMIGRATION POLICY IN THE FASHIONING OF AMERICA 392 (2006) (summarizing economic research); see also CONGRESSIONAL BUDGET OFFICE, THE IMPACT OF UNAUTHORIZED IMMIGRANTS ON THE BUDGETS OF STATE AND LOCAL GOVERNMENTS (Dec. 2007) available at http://www.cbo.gov/ftpdocs/87xx/doc8711/12-6-Immigration.pdf (finding that in the aggregate, over the long term, tax revenues of all types generated by all immigrants exceed the cost of services that they use, but that certain state and local costs exceed what the immigrant population pays in state and local taxes); but see IMMIGRATION POLICY CTR., ASSESSING THE ECONOMIC IMPACT OF IMMIGRATION AT THE STATE AND LOCAL LEVEL (Jan. 15, 2008), available at http://www.ailf.org/ipc/factchecks/StateLocal07.pdf (concluding that findings of costs to states and localities do not adequately take into account long-term economic growth and development); AM. MAJORITY FOUND., IMMIGRATION AND THE WEALTH OF STATES (Jan. 2008), available at http://www.amermaj.com/ ImmigrationandWealth.pdf (finding that immigration provides overall benefits to states). But those who campaigned for Proposition 187 made it clear that racial and cultural concerns, and not just cost issues, motivated their efforts. JOHNSON, supra note 252, at 42-46.
256. See supra notes 36-42 and accompanying text.
257. Liu, supra note 4, at 2067 ("[S]tates in the bottom third of spending, while enrolling 47% of the nation's schoolchildren, serve 54% of all poor students, 75% of all Latino students, and 76% of all LEP [Limited English Proficiency] students.").
258. Higher education correlates with higher income, both generally, and with respect to immigrants in particular. IHEP STUDY, supra note 83, at 16, 17; see also Guinier, supra note 1 (discussing the role of higher education in social mobility).
259. See, e.g., Connerly, supra note 19.