California Proposition 16 would allow discrimination against women
Proposal 16 seeks to repeal the provision of the California Constitution that prohibits discrimination and preferential treatment based on race and sex in public education, employment and contracts. This provision was introduced by Proposal 209 in 1996.
Little has been said about how this repeal effort might have the unintended consequence of furthering discrimination against women in college admissions.
Reports of discrimination against women in college admissions have been widespread for at least 2006, when Kenyon College Dean of Admissions Jennifer Delahunty Britz wrote in The New York Times, “The reality is that because young men are more scarce, they are more valued candidates. …Admissions standards at today’s most selective colleges are stricter for women than for men. A year later, Henry Broaddus, Dean of Admissions at the College of William & Mary, recognized that his institution favors men: “We are the College of William & Mary, not the College of Mary & Mary. The Washington Post look at at the acceptance rates of 128 selective colleges and universities and found that in half of them, men were admitted at higher rates than women (16% admitted men and women at equal rates and 38 % admitted women at higher rates).
Why does such apparent discrimination exist? For whatever reason, including the removal of old barriers to male occupations, women seem to fare better on many traditional measures of high school academic achievement. Data exposure that there are more girls graduating at the top of their secondary school classes and that girls are more likely to take advanced level courses.
Under federal law, such discrimination is legal in private colleges and universities: Title IX, the landmark federal sex discrimination law, contains an exception that allows single-sex colleges such as Smith and Wellesley to continue to exist. . Gender discrimination in admissions, however, is illegal under Title IX at public colleges and universities. But as the College of William & Mary example suggests, Title IX seems to be under-enforced in the area of admissions, perhaps because of the “confused politics” surroundings the problem.
In California, Prop 209 gives rejected applicants a valuable additional tool to seek redress in court. In particular, it is easier for a civil rights claimant to go to court for a violation of Prop 209 than for a violation of Title IX. Abigail Fisher spent years arguing to prove that her college admissions claim for racial discrimination belonged in federal court; California law allows plaintiffs to avoid these hurdles.
The range of people who can sue for admissions discrimination in California state court is also broader. In California, Prop 209 can be enforced by taxpayer lawsuits (which can be brought by any taxpayer to seek redress for harm to the taxing public)―or by citizen lawsuits (which can be brought by any California citizen to demand of a government agency to perform a public duty) .
Having both federal and state laws that prohibit government discrimination ― even if there is overlap in the conduct they prohibit ― is important to maximizing the chances that equal protection violations will be detected and corrected. .
Do California colleges and universities currently discriminate in admissions based on gender? It’s hard to say for sure because there are was little serious efforts to collect relevant data. The data I found in line on admission rates for men versus women at 20 of the most selective public colleges in California show that most accept women at equal or higher rates than men, suggesting adherence to Prop 209.
UCLA already has 58% women and 42% men. Cal State Bakersfield and Cal State Fresno are both 63% female and 37% male. Most other selective public colleges and universities in California also have more than 50% women, albeit by lower margins. Will at least some of these schools be tempted to discriminate to achieve a better gender balance? They would be freer to act on this temptation if Prop 16 passes. Why encourage them?
Some prominent feminists have exit in favor of Proposition 16. They seem to ignore the likely consequences in terms of denying California women the opportunity to attend the college of their choice. Voters should not make the same mistake. They should carefully consider the implications of the admissions discrimination for women in Prop 16 before voting.
Alison Somin is a lawyer at Pacific Legal Foundation, which advocates nationwide for court victories by enforcing the constitutional guarantee of individual liberty. Follow her on Twitter @AlisonSomin.