Constitutional amendment seeks to revoke Prop. 209 racial preferences ban

SACRAMENTO — The battle over racial preferences is heating up again in California.

Senate Constitutional Amendment 5, by state Sen. Ed Hernandez, D-West Covina, was just introduced in the Legislature. It would allow the University of California and California State University again to use race, sex, color, ethnicity or national origin as a consideration for accepting students into the schools.

It effectively would repeal Proposition 209, an initiative California voters passed in 1996. The official Prop. 209 ballot summary read by voters said:

“Prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.”

So far, laws and initiatives similar to Prop. 209 have been passed in seven other states.

But Hernandez believe Prop. 209 has stifled diversity in CA higher education.

“Enrollment decreases [of Latinos and African Americans in state universities] have become steeper and are not keeping pace with the changing populations,” Hernandez said Thursday in the Senate. “It was a mistake in 1996 and we are still suffering consequences of that today. SCA 5 will simply allow California’s public universities to compete for students with the best and brightest backgrounds, so we can keep our academic excellence here in our state, and not in some other state.”


“I hope Sen. Hernandez and members of the Latino Caucus really take a leadership role and explain [SCA 5] to their constituents,” said Ward Connerly, president of the American Civil Rights Institute. He is the author of Prop. 209 and has helped pass similar initiatives in Michigan and other states.

Connerly said the motive behind SCA 5 and previous bills is to try to get more Latinos into UC schools. “The Latino Caucus is dominant in the Legislature,” he said. “The [university] admissions people will have to do what they want.”

Indeed, the discussion on the state Senate largely involved members of the Latino Caucus.

Hernandez said that, in 1995, prior to Prop. 209’s enactment, 38 percent of California high school graduates were minorities, while 21 percent of freshmen in the UC system were minorities. By 2004, minorities accounted for 45 percent of high school graduates, but just 18 percent of freshmen in the UC system.

“A blanket prohibition on consideration of race was a mistake in 1996, and we are still suffering the consequences from that initiative today,” Hernandez said. “You cannot address inequality by refusing to acknowledge it.”

Of particular issue with lawmakers is the dominance of Asian students in UC and CSU schools.

Currently, UC freshmen are 36 percent Asian, 28.1 percent white, 27.6 percent Latino and 4.2 percent African American.

Yet California’s population is 13.9 Asian, 39.4 percent “White alone, not Hispanic or Latino,” 38.2 percent Latino, and 6.6 percent African American, according to the U.S. Census.

Hernandez and legislators representing minorities want the state’s college admissions to reflect the population more closely.

“We need to do a better job ensuring our students of color feel welcome at our public universities and colleges,” said Sen. Ricardo Lara, D-Bell Gardens. “And that students represent our changing population.”

“Prop. 209 created a barrier for people of color to access higher education,” said Sen. Ben Hueso, D-San Diego. “We didn’t apply the rule to include high schools. Yet with these prohibitions, we have seen a stark reduction to access of higher education by people of color, only leading to a sense of hopelessness within this community, creating a high condition of inequality in our society.”

K-12 problems

“Our problem is K-12,” charged Sen. Mark Wyland, R-Escondido. “There is already data before Prop. 209 that many of those students admitted experience failures, and it changed their lives because they failed,” Wyland added. “We can solve the problem we’re after if we can get K-12 and the Community College system prepared. We’ll have a lot better outcome.”

Prop. 209’s defenders also point out that the state’s Latino and African American children especially are shortchanged by a state school system that regularly scores near the bottom of the 50 states on national tests. This is shown on federal statistics for the National Assessment of Educational Progress on mathematics achievement, a crucial component of success at the university level. It found:

“In 2013, Black students had an average score that was 33 points lower than White students. This performance gap was not significantly different from that in 1990 (38 points). 

„”In 2013, Hispanic students had an average score that was 28 points lower than White students. This performance gap was not significantly different from that in 1990 (34 points).”

Numerous K-12 reforms in public schools over 23 years at the federal, state and local levels have done nothing to close the performance gap. Prop. 209’s defenders insist that more rigorous reforms — such as school vouchers — are needed to advance the performance of Latino and African American children. In California, the teachers’ unions vigorously have opposed vouchers in two referendums that voters defeated.


If SCA 5 passes, it could be put before voters this November, essentially making it a referendum on Prop. 209. SCA 5 next will be heard the Assembly.

In 2011 Hernandez authored the controversial Senate Bill 185, which was also an attempt to repeal Prop. 209. SB185 passed both legislative houses but was vetoed by Gov. Jerry Brown, who said he agreed with the goals of affirmative action but that it was up to the courts, not the Legislature, to limit Prop. 209.

In both 2000 and 2010, the California Supreme Court ruled that Prop. 209 was constitutional.

Supreme Court

At the federal level, the U.S. Supreme Court has handed down several decisions that have not definitively determined the constitutionality of affirmative action. A new case expected to be decided this year is described by NPR:

“The U.S. Supreme Court takes up the issue of affirmative action again … but this time the question is not whether race may be considered as a factor in college admissions. Instead, this case tests whether voters can ban affirmative action programs through a referendum.

“In 2003, the high court upheld the University of Michigan Law School’s affirmative action policy. The next day, opponents of affirmative action launched a referendum campaign to bar such programs, and in 2006, voters overwhelmingly approved a ballot initiative amending the state constitution to ban affirmative action programs in higher education.

“Michigan’s state colleges and universities promptly abandoned any use of race or ethnicity to promote diversity, and minority enrollment plummeted. In 2012, a federal appeals court ruled that the referendum itself was discriminatory, and the U.S. Supreme Court stepped in to decide the issue.”

The case has obvious implications for Prop. 209 and explains why Gov. Brown, also a former California attorney general, based his veto on waiting for the courts to decide the matter.

The case is expected to be decided by June. Oral discussions by the court last October seemed to indicate that it would uphold the state bans on affirmative action. But the court can be unpredictable.


Write a comment
  1. LetitCollapse
    LetitCollapse 4 February, 2014, 21:28

    The late, great Will Durant, the famous historian and philosopher, once said:

    “Nature smiles at the union of freedom and equality in our utopias.
    For freedom and equality are sworn and everlasting enemies, and
    when one prevails the other dies. Leave men free, and their natural
    inequalities will multiply almost geometrically, as in England and
    America in the nineteenth century under laissez-faire.
    To check the growth of inequality, liberty must be sacrificed,
    as in Russia after 1917. Even when repressed, inequality grows; only
    the man who is below the average in economic ability desires equality;
    those who are conscious of superior ability desire freedom,
    and in the end superior ability has its way.”

    Nothing follows………

    Reply this comment
  2. Ulysses Uhaul
    Ulysses Uhaul 4 February, 2014, 22:07

    What does this have to do with anything….armchair philosophers in dank basements ….no mas! Comprende.

    Reply this comment
  3. suqs2bu
    suqs2bu 5 February, 2014, 08:40

    In other words:

    All Blacks and Latino’s are just too damned stupid and lazy to ever do anything on their own, They need our help with virtually every aspect of their miserable lives!!

    Sen. Ed Hernandez, D-West Covina

    Reply this comment
  4. Ulysses Uhaul
    Ulysses Uhaul 5 February, 2014, 08:57

    This needs immediate moderation……

    Reply this comment
  5. Gonzo
    Gonzo 5 February, 2014, 10:45

    It’s stupefying that these dunderheads would have us deny our best and brightest less access to our higher education system. Talk about the dumbing down of Cali. Hello! We have this whole other college system for those students who don’t qualify academically. It’s called Junior college and it’s filled with remedial math,science and english courses for those who didn’t pay attention beginning in middle school.

    Reply this comment
  6. LetitCollapse
    LetitCollapse 5 February, 2014, 12:06

    “Americans are so enamored of equality, they would rather be equal in slavery than unequal in freedom” – Alexis de Tocqueville

    Reply this comment
  7. Bill - San Jose
    Bill - San Jose 5 February, 2014, 12:14

    So it sounds like the Latino caucus has a problem with a different minority getting spots in the UC system.

    Did anyone else get that from his comments?

    That is what 209 did. It ensured those who have earned their way into the UC system get a chance to enter the UC system. It isn’t a raffle or lottery and thankfully it isn’t a quota anymore.

    Stunned by the arrogance of this effort.

    Reply this comment
  8. LetitCollapse
    LetitCollapse 5 February, 2014, 12:44

    If I were a young kid with promise but not a member of a protected class I would run as fast as my legs could carry me from this State and never look back. A policy of rewarding mediocrity and punishing excellence can only hurt the best and the brightest. The writing is all over the wall. Run, kids, run! You can’t save these people from themselves. All you can do is get as far away as possible from them and save yourselves. There are leaders and educations of higher learning domestic and abroad who INVITE your talent. Who won’t punish you based upon your unprotected gender, unprotected race or unprotected national origin. They will REWARD you for your brains. They don’t care about the color of your skin or whether you are an XX or an XY! Go there! The world is your oyster! Don’t allow them to demoralize you in California. Let them drown in their own mediocrity and low standards! Be free!!!!!

    Reply this comment
  9. Rex the Wonder Dog!
    Rex the Wonder Dog! 5 February, 2014, 12:51

    SCA 5 is just another chance to re-affirm race blind admissions.

    They could just take the top 10% of every HS, like TX does, it is therefore more race blind and will get the minority numbers up because schools that have a majority of minorities will be 100% of the top 10% admitted.

    Reply this comment
  10. Ulysses Uhaul
    Ulysses Uhaul 5 February, 2014, 20:35

    If you take the top ten percent then the population will be mostly women and Asians.

    They study and follow the rules….

    Reply this comment
  11. Rex the Wonder Dog!
    Rex the Wonder Dog! 7 February, 2014, 17:38

    If you take the top ten percent then the population will be mostly women and Asians.
    You worthless Teddy Sock Puppet! The top 10% will vary in race, and ethnicity, but not gender, according to the local population.

    Geezzz Teddy

    Reply this comment
  12. Evangeline Brabant
    Evangeline Brabant 26 February, 2014, 07:04

    The reality is that even with lowered expectations for admission, and lowered expectations while in school, including free tutoring, weighted grades, and all other kinds of support, these people will flunk out. Meantime they have cost the taxpayers large sums of money, and taken up slots that should have been filled by high achievers. Time was in our country where we admired hard work and effort.

    The under-qualified should indeed, be channeled to the Community College System to prepare themselves for entrance to a designer label school. That our community colleges are so crowded now is because there are plenty of non-blacks or Hispanics who seem to believe community college is a good way to start the road toward higher education.

    Meantime, don’t forget the Dream Act and its guarantees of preferential treatment for illegals.

    We should not be surprised about this effort to undo the wishes of the voters, this is the left in action and they have little concern for anything except their agenda. The Common Core is based on this very same egalitarian agneda, and by the time those who are now in early elementary school reach high school, no one will remember what it meant to be a high or middle achiever, since the Common Core is designed to bring everyone down to the level of the lowest performers. The final dumbing down of our country.

    Reply this comment
  13. Molly C
    Molly C 27 February, 2014, 21:06

    We came from a country where we have seen the impact of minority preferences, quotas etc. In India, while the approach was to ensure one section of population that was denied all rights makes progress, it has however reached a point where there is reservation for each and every section of society. The only ones who dont are the normal folks who are in neither of the reserved sections.

    Let us not make the mistake of reigniting the preference based, race, gender, color, etc reservations or quotas. This is a backward step.


    Reply this comment
  14. Bystander
    Bystander 3 March, 2014, 11:26

    This makes no sense its diversity in the wrong direction, it’s as ridiculous as keeping a quota on African American Students in college sports team, with each team reflecting the population, and based on CA pop in the article; only 1 African American per a team, 2 Asians, 4 Caucasians, and 4 Lations on a squad of 11. It also ignores the “Asian Myth” and its going to hurt the tons of other Asian subgroups that have trouble getting into college. If passes this is what I see happening. It will dumbdown the UC and CSU education system, Asian enrollment in private instituions will increase, and worst of all increase the gap between the top tier private institutions (Harvard, Princeton and etc) even further from the public education system. The rich will remain better educated while everyone else is balanced out at average. Asians dominate the education system, just like African American’s dominate the NBA. Research and focus should be on why Latinos aren’t getting enrolled as much as Asian instead of putting Latinos on a VIP list.

    Reply this comment
  15. webattorney
    webattorney 5 March, 2014, 08:52

    This is going to lead to “dumbing down” of all CA public universities and public colleges. Come on Latinos, you have to compete like the rest of us. Let’s call a spade for what it is; if they want more of certain minorities to be able to attend CA public colleges, then they should allow CA universities to set aside certain number of spots and just give these spots to Latinos and Afro-Americans. I am going to vote agains this Bill if it ever comes before voters.

    Reply this comment
  16. Idontgetit
    Idontgetit 22 March, 2014, 02:11

    Why don’t these politicians go find something else to go after. I don’t care what skin color you are, that should NEVER be a factor in admissions to colleges or obtaining a job. It’s something that you can’t change, period. Just because you’re born a certain color shouldn’t give you preference on admissions to college. Oh you were born black? I guess you can have a C average and get into UCI over that asian kid who had an A average. Now if he wanted to go after helping students out from lower socio-economic upbringings that’s another thing. But wait, we already have that don’t we? They’re called federal/state grants and scholarships.

    Reply this comment
  17. R Davis
    R Davis 23 December, 2014, 05:25

    Hernandez and his corrupt pro-“affirmative action” cabal are evil racist bigots, paid to ruin the lives of their constituents by insuring they fail in schools where they’re not equipped to function without an affirmative action handicap/crutch, spinning their racism to make its irrefutable, evil bigotry looks good. We fought the Civil War against such vile racism so it’s sick to see that sick kind raise ugly heads yet again and lie about what they’re doing.

    Reply this comment
  18. R Davis
    R Davis 23 December, 2014, 05:29

    CA legislators are among the most corrupt in the nation and so shouldn’t be allowed to second guess the people’s referendum to end racism that they’re not competent to judge; Hernandez’s evil, racist bigotry is disgusting.

    Reply this comment

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