Prediction For the Outcome of Students for Fair Admissions v. President & Fellows of Harvard College

Affirmative action has long been the basis for much controversy in the already impassioned discussion of college admission decisions. The debate is rooted in broader disputes about meritocracy, diversity, and possible discrimination. Inherent in the discussion is whether it is acceptable to, in essence, discriminate against one group to promote another. Implementing a policy of affirmative action in college admissions has led many people to believe that certain racial groups are inevitably disadvantaged in an effort to increase diversity in higher education. However, the goal of diversity is not limited to race. College admissions policies look to create diverse student bodies through a variety of factors, including gender, socio-economic background, sexual orientation, and geography, to name just a few. So what makes racial diversity such a contentious issue?

As one of the nation’s leading universities with one of the lowest acceptance rates, Harvard has become the face of the fight over affirmative action. Students for Fair Admissions v. President and Fellows of Harvard College was granted certiorari by the Supreme Court on January 24, 2022, and is to be heard in conjunction with a similar case targeting the admissions policies at the University of North Carolina.¹ The questions presented in the case are whether the Court should overrule the precedent established by Grutter v. Bollinger that allows institutions of higher education to factor race into admission decisions, and if so, whether Harvard’s race-conscious policies violate Title VI of the Civil Rights Act.² A breakdown of past rulings in Supreme Court cases and the Justices’ legal opinions on affirmative action should provide greater insight into the potential outcome of Students for Fair Admissions v. President and Fellows of Harvard College.

Past Rulings and Current Standing

The Supreme Court boasts a long history of rulings on affirmative action in college admissions since the policy of affirmative action was established in the 1960s.³ The first case on affirmative action heard by the Supreme Court was Marco DeFunis Jr. v. Odegaard, decided in 1974.⁴ Marco DeFunis was denied admission to law school and sued a state education official and the school’s admissions committee on the basis that the school’s prioritization of minority students with lower test scores violated the Fourteenth Amendment’s Equal Protection Clause. By the time that the case reached the Supreme Court, Defunis had successfully gained admission to the law school and the Court ruled that the case in question was moot.⁵ The first significant Supreme Court case on affirmative action came in 1978 with a decision in Regents of the University of California v. Bakke. At the time, the University of California employed an affirmative action program that prearranged 16 of the 100 spots of the entering class at their medical school for “quality minorities” with the intention to promote minority access to the medical profession.⁶ The Court’s decision acknowledged that both sides had a legally legitimate argument: They decided that a racial quota system did violate the Civil Rights Act of 1964, but as Justice Powell included in his opinion, “the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions.”⁷ While factoring race into admissions was permissible in trying to achieve a diverse student body, a strict quota system was deemed impermissible and future policies would be subjected to strict scrutiny. To pass strict scrutiny, a policy must further a "compelling governmental interest," and must be narrowly tailored to achieve that interest.⁸ Strict scrutiny is the highest standard of review which a court will use to evaluate the constitutionality of governmental discrimination.⁹

The next two cases, Grutter v. Bollinger and Gratz v. Bollinger were adjudicated on the same day with decidedly different outcomes. In Grutter, in a 5-4 decision, the Court upheld the decision in Bakke and found that schools could use race as one of a multitude of factors in the admissions process considering that diversity constituted a “compelling state interest.”¹⁰ However, in the case of Gratz v. Bollinger, the Court decided in a 6-3 decision that the existence of a point system that provided favoritism to underrepresented minority groups did not pass the strict scrutiny standard established in Bakke. It seems clear that the use of any objective measure like a quota or point system will not be looked upon favorably by the Court.

The most recent case concerning affirmative action in college admissions that established the current standard is Fisher v. The University of Texas. The 7-1 decision stated that the Equal Protection Clause of the Fourteenth Amendment did permit college admissions to consider race in their decisions if the policy was “precisely tailored to serve a compelling governmental interest.”¹¹ A second review of the case led to a 4-3 opinion that determined that the university’s policy did abide by the standard of strict scrutiny and should be allowed as a means of creating diversity.¹² As the policy currently stands, affirmative action is permitted to be considered in college admission decisions in so far as it passes the standard of strict judicial scrutiny and is done with the narrow objective of creating a diverse student body.

What Makes This Case Different

The first major distinction that separates Students for Fair Admissions v. President and Fellows of Harvard College from past Supreme Court cases on affirmative action is Harvard’s status as a private institution. Bakke, Grutter, Gratz, and Fisher all dealt with public universities, which are bound by different rules than private universities since they are funded primarily through government funding.¹³ Due to Harvard’s status as a private university, the upcoming case asks whether the College is in violation of Title VI of the 1964 Civil Rights Act, not the Equal Protection Clause of the 14th amendment. Although Harvard is not subject to the same constitutional constraints as the state schools targeted in past Supreme Court cases, Harvard still receives federal funding and therefore must abide by Title VI which “prohibits discrimination on the basis of race, color, or national origin in any program or activity that receives Federal funds or other Federal financial assistance.”¹⁴ Another unique aspect of the upcoming case of affirmative action is its unprecedented focus on discrimination against Asian Americans. In fact, in the petition for writ of certiorari, Students for Fair Admissions asked specifically, “Is Harvard violating Title VI by penalizing Asian-American applicants, engaging in racial balancing, overemphasizing race, and rejecting workable race-neutral alternatives?”¹⁵ This is the first Supreme Court case where the plaintiffs framed their argument around discrimination against a minority group. Every prior case the Court has taken up on affirmative action in college admissions has dealt with white plaintiffs.¹⁶ A focus on proving prejudice against a particular minority group could be more persuasive in the argument against the use of race in admissions than the complaints of a majority group asserting that their individual rejection from a school was a result of discriminatory policies.

According to Students for Fair Admission, Asian Americans bear the brunt of the consequences of affirmative action.¹⁷ A 2009 Princeton study found that Asians needed an SAT score that was on average one hundred and forty points higher than whites to have a comparable chance of admission at top universities.¹⁸ The lawsuit by Students For Fair Admissions included data that found that Asian Americans had a lower rate of admission than any other racial group from 1995-2013.¹⁹ However, data from the Harvard admitted classes between 2014-2023 revealed an overall increasing trend of Asian Americans in their student body.²⁰ In addition, a criticism of the data that Students for Fair Admission presented is that SAT scores and grades play a very small role in Harvard admissions, serving as more of a baseline for qualification, and therefore are not a reliable data set to compare students. In fact, the SAT is so inconsequential that Harvard is switching to test-optional for at least the next four years.²¹

Harvard contends that its race-conscious policies adhere to the requirements of strict judicial scrutiny that were established in Grutter, as race is only one component that is factored into the admissions process, with the overall intention to create a diverse student body.²² Harvard also does not use an explicit racial quota system, which proved to be the downfall of the University of California in the Bakke decision. In fact, Justice Lewis Powell, who offered the plurality opinion in the Bakke case, commended Harvard’s admissions policies for being the standard for achieving a diverse student body without employing the use of target-quotas.²³ Harvard admissions has at least one admissions officer read the file of a candidate and rate them in six categories that determine their admission: These categories are “academic ratings, extracurricular ratings, athletic ratings, school support ratings, personal ratings, and overall ratings.”²⁴ While there is no category that specifically targets race, it is maintained by Students For Fair Admission, and many other opponents of affirmative action, that race is excessively reflected in the personal ratings category of an applicant.²⁵

Perspective of the Current Justices

The issue of affirmative action can be viewed from a Machiavellian perspective - determining whether the ends of a diverse student body justifies the means of race-conscious admission policies. An analysis of the current Justices’ past opinions on affirmative action, either stated in past decisions or offered through other means to the public, may provide insight into the likely outcome of the upcoming Supreme Court cases. While Justices have been known to change their opinions as time progresses, and as they hear compelling arguments, the last case on affirmative action having been decided in 2016 means that five of the nine Justices have already ruled on a case with principal issues similar to the one on the docket. Furthermore, the Justices granting cert to an affirmative action case relatively soon after the last case (in the timeline of case law) indicates that they are seriously considering a change to the Court’s current position.²⁶

It is also significant that the Court is considered more conservative now than it has ever been during a previous case on affirmative action in college admissions.²⁷ While every controlling opinion that has upheld affirmative action has been authored by a traditionally conservative Justice, none of those Justices still serve on the Court today.²⁸ The three conservative Justices that took part in the most recent Fisher decision and remain on the Court - Chief Justice Roberts, Justice Thomas, and Justice Alito - all dissented from the majority opinion supporting affirmative action.²⁹ Justice Kennedy, a historically conservative Justice who is no longer on the Court, offered the swing vote and majority opinion in Fisher that decided that the University of Texas’ consideration of race in the admissions process did not violate the Equal Protection Clause of the Fourteenth Amendment.³⁰

The four new Justices that will preside over the upcoming case include Justice Neil Gorsuch, Justice Brett Kavanaugh, Justice Amy Coney Barrett, and Justice Ketanji Brown Jackson. The first three Justices were appointed by President Donald Trump and make up the rest of the six-strong conservative majority. Considering that a decision is unlikely to occur until the spring or summer of 2023, Justice Ketanji Brown Jackson will be on the Court in place of Justice Breyer. ³¹ Justice Jackson makes up one of three liberal Justices on the Court and would most likely be necessary for the push to protect affirmative action. However, Justice Jackson, in her Senate Judiciary Committee’s nomination hearings, said that she plans to recuse herself from the case to prevent a conflict of interest as she currently sits as a member of Harvard’s Board of Overseers.³² This would undoubtedly hurt the already weakened liberal branch of the Court that has indicated with past rulings that it hopes to permit affirmative action in college admissions.

In the 4-3 decision of the second Fisher case that upheld the constitutionality of affirmative action in higher education, Justice Alito and Justice Thomas wrote dissenting opinions.³³ Justice Alito asserted that UT’s race-conscious admissions process did not meet the standards of strict judicial scrutiny on the basis that UT failed to demonstrate how its program “further(ed) its interest in the educational benefits of diversity.”³⁴ This could indicate that if Harvard can successfully illustrate to Justice Alito how their race-conscious policy is narrowly tailored to achieving “educational benefits of diversity”, then Justice Alito could potentially vote differently than he did in the Fisher case. However, it would seem that if all the reasons that UT provided in the Fisher case were deemed insufficient, it would be difficult for Harvard to find an argument that would provide a substantial difference. Justice Thomas concurred with Justice Alito’s dissent and added further that “a State’s use of race in higher education admissions decisions is categorically prohibited by the Equal Protection Clause” of the Fourteenth Amendment.³⁵ Justice Thomas has perhaps been the most vehement opponent of affirmative action in higher education and would almost surely rule in favor of Students For Fair Admission in the upcoming case, unless he makes a distinction between public and private universities. Chief Justice Roberts, who in the past has served as a swing vote and sided with the liberal minority on other issues, has spoken out against race-conscious policies on multiple occasions.³⁶ He expressed in a Michigan voters’ 2006 decision that he believes that the best “way to stop discrimination on the basis of race is to stop discriminating on the basis of race” which could extend to any admission policy that considers race in its decision.³⁷

When Justice Roberts offered his opinion in the Michigan case, Justice Sotomayor took a conflicting viewpoint by stating that “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”³⁸ Another Justice that could potentially vote to uphold colleges’ use of affirmative action would be Justice Kagan. In the Fisher case, Justice Kagan recused herself as she had been the Solicitor General when the amicus brief was filed in the Fisher case.³⁹ Justice Kagan maintains a relatively amicable stance towards affirmative action as she has written “that she supports the use of affirmative action in at least some circumstances, accompanied by an inclination to look beyond affirmative action to other means of achieving racial equality.”⁴⁰ Given its broad consideration of multiple factors in admissions, Harvard should be able to demonstrate that they aim to advance racial equality in ways outside of solely affirmative action.

While the Justices who have been on the Court have made their stances on affirmative action quite clear through past rulings, the three new Justices - Justice Gorsuch, Justice Kavanaugh, and Justice Barrett are more difficult to predict. All three Trump-appointed Justices did not rule on affirmative action cases during their time as appellate judges.⁴¹ Supporters of affirmative action are worried that Justice Gorsuch may apply his originalist jurisprudence to affirmative action.⁴² He has expressed in the past that “to discriminate is to treat an individual worse than others who are similarly situated.”⁴³ Although Justice Kavanaugh has never ruled on an affirmative action case, he did provide small insight into his opinion on the legality of racial preferences when he wrote in an amicus brief that “the Equal Protection Clause prohibits racial classification except when such classifications are necessary and narrowly tailored to serve a compelling government interest.”⁴⁴ While this opinion is a reiteration of the current standard on affirmative action, it is unclear what Justice Kavanaugh believes satisfies this condition of a classification that is “necessary and narrowly tailored to serve a compelling government interest.”⁴⁵ Additionally, it is important to keep in mind that the case against Harvard will concern Title VI and not the Equal Protection Clause which could affect the Justices’ decisions. Justice Barrett is the most unpredictable of the Justices, but even if she does rule in favor of Harvard, it likely will not be enough to stand against those on the Court who want to see an end to affirmative action in higher education.

If the Supreme Court Overrules Bollinger, What Is the Result?

If the Court does rule against Harvard and the inclusion of affirmative action in the admissions process, many people fear the effect this will have on the admissions of underrepresented minorities in higher education. However, it would be difficult for the Supreme Court to actually mandate a change in Harvard’s approach. Harvard, and other colleges, could still use race as a factor in their admissions and attribute it to a myriad of other factors. The Supreme Court is limited in its ability to actually effectuate change in the admissions process, outside of placing racial quotas on the admitted class to ban affirmative action, which would be counterintuitive to becoming race-neutral. Even if “race” was no longer a box on a Harvard application, students could still write about their race in their personal statement and it would be nearly impossible for the Court to measure the change in Harvard’s consideration of race in admission decisions. As Professor Larry Tribe of Harvard Law School expressed, “Universities as intelligent as Harvard will find ways of dealing with the decision without radically altering their composition. But they will have to be more subtle than they have been thus far.”⁴⁶

Another indicator that a Court decision against Harvard will have less of an effect on minority representation in higher education than predicted can be seen through an analysis of the outcome of Proposition 209 in California. Proposition 209 “stated that the government and public institutions cannot discriminate against or grant preferential treatment to a person on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.”⁴⁷ Proposition 209 essentially banned the use of affirmative action in public education, which directly affected the University of California school system. After this proposition passed in 1996, many people had similar fears about what this would mean for minority students that benefit from affirmative action. However, research and analysis conducted by the University of California on the impact of Proposition 209 found “no evidence that yield rates fell for minorities relative to other students after Proposition 209, even after controlling for changes in student characteristics and changes in the set of UC schools to which students were admitted.”⁴⁸ Similarly, another study conducted on the effects of Proposition 209 on California’s higher education, public employment, and contracting, found that “The CSU and UC data show that blacks, Hispanics, and other underrepresented groups have suffered no harm, but have steadily increased in the statistically significant areas of high school graduates and university baccalaureate holders across the state.”⁴⁹ If the ban of affirmative action in the UC school system had little effect on the racial distribution of the student body, it seems plausible that Harvard would be able to maintain its commitment to racial diversity even if the Court rules against them in the upcoming case.

With a 6-3 conservative majority, and many of the conservative Justices being outspoken critics of affirmative action, it seems likely the Court will rule in favor of Students For Fair Admission. However, the difficulty of enforcing an effective end to affirmative action means this case is probably not the death knell for college admission policies that some people fear. The Supreme Court does not have the power to prohibit students from listing their race on their application, and as a result, admissions officers will still have access to this information and likely continue to factor it into decisions. The broader conversation about affirmative action extends beyond college admissions as this decision by the Supreme Court may trigger lawsuits against other businesses and industries that employ some form of affirmative action in their practices.

References

1. Oyez. “Students for Fair Admissions v. President and Fellows of Harvard College.” https://www.oyez.org/cases/2022/20-1199. ↩

2. Adam Kortara, William Convoy, and Patrick Strawbridge. “Petition for Writ of Certiorari: Students for Fair Admissions, INC v. President and Fellows of Harvard College.” February 25, 2021. https://samv91khoyt2i553a2t1s05i-wpengine.netdna-ssl.com/wp-content/uploads/2021/02/SFFA-Harvard-Cert-FINAL-SFFA-Petition-for-Certiorari.pdf ↩

3. Kramer, Margaret. “A Timeline of Key Supreme Court Cases on Affirmative Action.” The New York Times, March 30, 2019, sec. U.S. https://www.nytimes.com/2019/03/30/us/affirmative-action-supreme-court.html. ↩

4. Ibid. ↩

5. Oyez. “DeFunis v. Odegaard.” https://www.oyez.org/cases/1973/73-235. ↩

6. Justia Law. “Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).” https://supreme.justia.com/cases/federal/us/438/265/. ↩

7. Justia Law. “Regents of Univ. of California v. Bakke, 438 U.S. 265 (1978).” https://supreme.justia.com/cases/federal/us/438/265/. ↩

8. Ibid. ↩

9. Ibid. ↩

10. Kramer, Margaret. “A Timeline of Key Supreme Court Cases on Affirmative Action.” The New York Times, March 30, 2019, sec. U.S. https://www.nytimes.com/2019/03/30/us/affirmative-action-supreme-court.html. ↩

11. Oyez. “Fisher v. University of Texas.” https://www.oyez.org/cases/2012/11-345. ↩

12. Kramer, Margaret. “A Timeline of Key Supreme Court Cases on Affirmative Action.” The New York Times, March 30, 2019, sec. U.S. https://www.nytimes.com/2019/03/30/us/affirmative-action-supreme-court.html. ↩

13. Millhiser, Ian. “The Supreme Court Case That Could End Affirmative Action, Explained.” Vox, March 2, 2021. https://www.vox.com/22301135/supreme-court-affirmative-action-harvard-college-race-students-for-fair-admission-ed-blum. ↩

14. Rights (OCR), Office for Civil. “Civil Rights Requirements- A. Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et Seq. (‘Title VI’).” Text. HHS.gov, January 15, 2009. https://www.hhs.gov/civil-rights/for-individuals/special-topics/needy-families/civil-rights-requirements/index.html. ↩

15. “In the Supreme Court of the United States.” Students for Fair Admission, INC., Petitioner, v. President & Fellows of Harvard College, Respondent; On Petition For A Writ Of Certiorari To The United States Court of Appeals For The First Circuit, February 25, 2021. https://www.supremecourt.gov/DocketPDF/20/20-1199/169941/20210225095525027_Harvard%20Cert%20Petn%20Feb%2025.pdf ↩

16. Kramer, Margaret. “A Timeline of Key Supreme Court Cases on Affirmative Action.” The New York Times, March 30, 2019, sec. U.S. https://www.nytimes.com/2019/03/30/us/affirmative-action-supreme-court.html. ↩

17. “In the Supreme Court of the United States.” Students for Fair Admission, INC., Petitioner, v. President & Fellows of Harvard College, Respondent; On Petition For A Writ Of Certiorari To The United States Court of Appeals For The First Circuit, February 25, 2021. https://www.supremecourt.gov/DocketPDF/20/20-1199/169941/20210225095525027_Harvard%20Cert%20Petn%20Feb%2025.pdf ↩

18. “The Uncomfortable Truth About Affirmative Action and Asian-Americans | The New Yorker.” https://www.newyorker.com/news/news-desk/the-uncomfortable-truth-about-affirmative-action-and-asian-americans. ↩

19. “Asian-American Harvard Applicants Saw Lowest Admit Rate of Any Racial Group From 1995 to 2013 | News | The Harvard Crimson.” https://www.thecrimson.com/article/2018/10/19/acceptance-rates-by-race/. ↩

20. “Share of Asian Americans Hits Record High in Harvard’s Class of Admitted Applicants.” https://www.insidehighered.com/admissions/article/2019/04/01/share-asian-americans-hits-record-high-harvards-class-admitted. ↩

21. “The SAT Doesn’t Matter: A Case for Economic Affirmative Action | Opinion | The Harvard Crimson.” https://www.thecrimson.com/article/2022/1/27/barone-wealth-admissions/. ↩

22. Oyez. “Students for Fair Admissions v. President and Fellows of Harvard College.” https://www.oyez.org/cases/2022/20-1199. ↩

23. “Supreme Court: The Harvard Case That Could End Affirmative Action, Explained - Vox.” https://www.vox.com/22301135/supreme-court-affirmative-action-harvard-college-race-students-for-fair-admission-ed-blum. ↩

24. Ibid. ↩

25. Ibid. ↩

26. Winter, Allison, Missouri Independent March 30, and 2022. “Upcoming U.S. Supreme Court Cases Could Curb Colleges’ Use of Affirmative Action • Missouri Independent.” Missouri Independent (blog), March 30, 2022. https://missouriindependent.com/2022/03/30/upcoming-u-s-supreme-court-cases-could-curb-colleges-use-of-affirmative-action/. ↩

27. Millhiser, Ian. “The Supreme Court Case That Could End Affirmative Action, Explained.” Vox, March 2, 2021. https://www.vox.com/22301135/supreme-court-affirmative-action-harvard-college-race-students-for-fair-admission-ed-blum. ↩

28. Totenberg, Nina, and Eric Singerman. “The Supreme Court Adds Affirmative Action to Its Potential Hit List.” NPR, January 24, 2022, sec. Law. https://www.npr.org/2022/01/24/1003049852/supreme-court-adds-affirmative-action-to-its-potential-hit-list. ↩

29. Ibid. ↩

30. Oyez. “Fisher v. University of Texas.” https://www.oyez.org/cases/2015/14-981. ↩

31. “Supreme Court Will Hear Challenge to Affirmative Action at Harvard and U.N.C. - The New York Times.” https://www.nytimes.com/2022/01/24/us/politics/supreme-court-affirmative-action-harvard-unc.html. ↩

32. SCOTUSblog. “Jackson Says She’ll Recuse Herself from Case Challenging Affirmative Action at Harvard,” March 23, 2022. https://www.scotusblog.com/2022/03/jackson-says-shell-recuse-herself-from-case-challenging-affirmative-action-at-harvard/. ↩

33. Winter, Allison, Missouri Independent March 30, and 2022. “Upcoming U.S. Supreme Court Cases Could Curb Colleges’ Use of Affirmative Action • Missouri Independent.” Missouri Independent (blog), March 30, 2022. https://missouriindependent.com/2022/03/30/upcoming-u-s-supreme-court-cases-could-curb-colleges-use-of-affirmative-action/. ↩

34. Justia Law. “Fisher v. University of Texas at Austin, 579 U.S. ___ (2016).” https://supreme.justia.com/cases/federal/us/579/14-981/. ↩

35. Ibid. ↩

36. “Supreme Court: The Harvard Case That Could End Affirmative Action, Explained - Vox.”https://www.vox.com/22301135/supreme-court-affirmative-action-harvard-college-race-students-for-fair-admission-ed-blum. ↩

37. Demby, Gene. “Two Justices Debate The Doctrine Of Colorblindness.” NPR, April 23, 2014. https://www.npr.org/sections/codeswitch/2014/04/23/306173835/two-justices-debate-the-doctrine-of-colorblindness. ↩

38. Ibid. ↩

39. Oyez. “Fisher v. University of Texas.” https://www.oyez.org/cases/2012/11-345. ↩

40. https://lawyerscommittee.org/wp-content/uploads/2010/07/kaganreportfinal.pdf ↩

41. National Law Journal. “Gorsuch, Kavanaugh, Barrett Offer Few Clues on Affirmative Action’s Future.” https://www.law.com/nationallawjournal/2022/01/24/gorsuch-kavanaugh-barrett-offer-few-clues-on-affirmative-actions-future/. ↩

42. BloombergQuint. “Business News Today: Share Market News, Latest Economy & Finance News.” https://www.bloombergquint.com/shell.html. ↩

43. Ibid. ↩

44. Arvanitis, Lorenzo, Serena Cho 1:57 Am, Oct 15, and 2018. “Kavanaugh Poses a Potential Threat for Affirmative Action, Experts Say.” Yale Daily News, October 15, 2018. https://yaledailynews.com/blog/2018/10/15/kavanaugh-poses-a-potential-threat-for-affirmative-action-experts-say/. ↩

45. Ibid. ↩

46. “‘Bad News for Harvard’: Future of Affirmative Action in Doubt as Conservative Court Takes Up Admissions Cases | News | The Harvard Crimson.” https://www.thecrimson.com/article/2022/1/25/scotus-admissions-expert-opinions/. ↩

47. Ballotpedia. “California Proposition 16, Repeal Proposition 209 Affirmative Action Amendment (2020).” https://ballotpedia.org/California_Proposition_16,_Repeal_Proposition_209_Affirmative_Action_Amendment_(2020). ↩

48. Antonovics, K. L., and R. H. Sander. “Affirmative Action Bans and the ‘Chilling Effect.’” American Law and Economics Review 15, no. 1 (March 1, 2013): 252–99. https://doi.org/10.1093/aler/ahs020. ↩

49. “The Effects of Proposition 209 on California: Higher Education, Public Employment, and Contracting by Charles Geshekter | NAS.” https://www.nas.org/blogs/article/the_effects_of_proposition_209_on_california_higher_education_public_employ. ↩