Constitutional amendment seeks to revoke Prop. 209 racial preferences ban

by Katy Grimes | February 4, 2014 6:19 pm

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[1], 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[2].

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[3], president of the American Civil Rights Institute[4]. 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[5] 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[6].

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[7] 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.[8]


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[9] 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[10] that have not definitively determined the constitutionality of affirmative action. A new case expected to be decided this year is described by NPR[11]:

“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[12] 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[13] by the court last October seemed to indicate that it would uphold the state bans on affirmative action. But the court can be unpredictable.

  1. Proposition 209:,_Proposition_209_(1996)
  2. seven other states:
  3. Ward Connerly:
  4. American Civil Rights Institute:
  5. UC freshmen:
  6. U.S. Census:
  7. federal statistics:
  8. voters defeated.:,_School_Vouchers_(2000)
  9. SB185:
  10. handed down several decisions:
  11. described by NPR:
  12. high court upheld:
  13. Oral discussions:

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