The Hill: California’s Prop 16 would allow discrimination against women

Proposition 16 seeks to repeal the provision of the California Constitution that prohibits discrimination and preferential treatment on the basis of race and sex in public education, employment and contracting. That provision was put there by Prop 209 in 1996.

Little has been said about how this repeal effort could have the unintended consequence of furthering discrimination against women in college admissions.

Reports of discrimination against women in college admissions have been widespread since 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 rarer, they’re more valued applicants. … The standards for admission to today’s most selective colleges are stiffer for women than men.” A year later, Henry Broaddus, dean of admissions at the College of William & Mary, acknowledged that his institution gives preference to men: “We are the College of William & Mary, not the College of Mary & Mary.” The Washington Post looked at acceptance rates for 128 selective colleges and universities and found that at half of them, men were admitted at higher rates than women (16 percent admitted men and women at equal rates, and 38 percent admitted females at higher rates).

Why does such apparent discrimination exist? For whatever reason, including the removal of former barriers to male occupations, women appear to fare better on many traditional measures of high school achievement. Data show that there are more girls graduating at the top of their high-school classes and that girls are more likely to take Advanced Placement classes.

Under federal law, such discrimination is legal at private colleges and universities: Title IX, the landmark anti-sex-discrimination federal statute, contains an exception that permits single-sex colleges such as Smith and Wellesley to continue to exist. Sex discrimination in admissions is, however, 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 admissions area, perhaps because of the “muddled politics” surrounding the issue.

In California, Prop 209 gives rejected female applicants a valuable additional tool to get redress in court. Notably, it’s easier for a civil rights plaintiff to get into court for a Prop 209 violation than for a Title IX violation. Abigail Fisher spent years litigating to prove that her race discrimination college admissions claim belonged in federal court; California law lets plaintiffs avoid those hurdles.

The range of persons who can bring admissions discrimination suits in California state court is also wider. In California, Prop 209 can be enforced by taxpayer suits (any taxpayer can sue to remedy the injury to the public fisc) ― or by citizen suits (which can be brought by any California citizen to require a governmental body 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 maximize the chance that equal protection violations are caught and corrected.

Are California colleges and universities discriminating in admissions right now based on sex? It’s difficult to say for sure because there has been little serious effort to collect relevant data. The data I found online about male versus female admissions rates at 20 of California’s most selective public colleges show that most are accepting women at equal or higher rates than men, which suggests compliance with Prop 209.

UCLA is already 58 percent female and 42 percent male. Cal State Bakersfield and Cal State Fresno are both 63 percent female and 37 percent male. Most other selective California public colleges and universities also are over 50 percent female, albeit by smaller margins. Will at least some of these schools be tempted toward discrimination to obtain more even gender balance? They would be freer to act on that temptation if Prop 16 passes. Why encourage them?

Some prominent feminists have come out in favor of Prop 16. They appear to be oblivious to the likely consequences in terms of denying California’s women the opportunity to attend the college of their choice. Voters shouldn’t make the same error. They should think carefully about the admissions discrimination implications for women of Prop 16 before they cast their ballots.

This op-ed was published by The Hill on October 5, 2020.