The California State Assembly voted on June 10th to repeal the 1996 Proposition 209, Section 31 Article 1 of the California Constitution. This part of the California constitution prohibits the West Coast state from discriminating “on the basis of race, sex, color, ethnicity or national origin in operation of the public employment, public education, or public contracting”. Whether or not the California Repeal Proposition 209 Affirmative Action Amendment (Assembly Constitutional Amendment 5 or, simply, ACA-5) is to become reality depends on a public vote set to take place on November 3rd of this year. Although nothing is set in stone, it seems increasingly likely. This article will examine Proposition 209, its effects on college/university admissions, and point to arguments for and against the ACA-5 intended to repeal it.

What is 1996 California Proposition 209?

Proposition 209 was voted into effect by the public in November of 1996, and its full title is as following: “Proposition 209: Prohibition Against Discrimination or Preferential Treatment by State and Other Public Entities”. While the title seems logically coherent and morally justifiable, the proposal arguably goes against affirmative actions measures taken to increase opportunities and help minority communities. This is a big deal for Californians, who take much pride in the diverse and culturally rich nature of the demography.

Proposition 209 was a response to the 1978 Regents of the University of California vs. Bakke Supreme Court decision, which allowed race to be a deciding factor in the admission process at colleges/universities. The full Proposition reads:

“SEC. 31.

(a) The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(b) This section shall apply only to action taken after the section’s effective date.

(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.

(f) For the purposes of this section, “state” shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.”

An exit poll breaking down the votes of almost 2500 Californians shows some interesting and somewhat predictable numbers. For instance, 63% of White voters were in favor of the Proposition, whereas Black, Latino, and Asian votes in favor were only 26%, 24% and 39% respectively. Furthermore, ideological preferences were very prevalent. Indeed, Liberal, Moderate and Conservative votes in favor were 27%, 52%, and 77% respectively. Another categorization which arguably exacerbates notions of a divided US shows Democrats accounting for 31% in favor, Independents 59%, and Republicans 80%. Final result of the public vote? 54.55% in favor and 45.45% against. The full data set can be found here.

Impacts of Proposition 209

One of California’s economic motors are its universities, which attract students from all over the world and are considered to be top notch globally. As such, any legislation regarding admission processes is of high importance, which is also why UC California is mentioned by name in the Proposition. Although I note that correlation does not mean causation, there are several noticeable things to consider.

  • African American graduation rates increased by 6.5% at UC Berkeley (1996 – 2005), and from 26% to 52% at UC San Diego (1996 – 2009).  
  • African American acceptance took a significant hit at UC Berkeley, falling from 49% to 24% (1997 – 1998).
  • African American freshmen at UC San Diego who obtained an honors GPA (3.5) rose from a single student in 1996 to 20% of the over 3000 freshmen in 1998.
  • African American enrollment percentage at UC remained unchanged from 1996 to 2010 (3.7%). In the same period, Asian American enrollment rose from 36.1% to 39.8%, Latino enrollment rose from 13.4% to 20.7% and White enrollment dropped from 38.4% to 26.8%.

Below is the data set from UC:

Ethnic group1995199619971998199920002001200220032004200520062007200820092010
African American4.23.73.82.92.832.833.22.82.933.63.83.63.7
Asian American35.236.136.435.337.437.438.138.637.94040.141.340.838.839.939.8
Chicano/ Latino15.113.412.711.311.912.212.913.413.914.214.715.516.718.119.220.7
White37.438.440.233.837.836.735.935.734.933.833.931.931.330.639.726.8
Ethnic Group Enrollment Percentages in First-Year Enrollment at University of California (%)

What is happening now?

Hence, the Assembly Constitutional Amendment to repeal Proposition 209 (ACA-5) is under debate. For clarification, repealing means the complete striking of the above, so far without any form of replacement. The Amendment document references the gender pay gap between men and women of different ethnicities and other inequalities within California, arguing that the repealing of Proposition 209 will increase equality of opportunity. The California State Assembly vote that took place on June 10th needed a two-thirds majority to pass and saw 75.95% in favor and 17.72% against. Of the 61 Democrats, 58 voted in favor, and of the 17 Republicans, 14 voted against. These numbers reflect the exit poll evaluated above, only difference being that these are politicians, not regular citizens. While this vote does not make any immediate changes to the California Constitution, it is highly likely that a public vote will be issued on November 3rd given the strong Democratic presence in California.

There are several arguments for and against ACA-5. Supporters include Assemblymember (Asm.) Shirley Weber, stating that:

Californians have built the fifth largest and strongest economy in the world, but too many hardworking Californians are not sharing in our state’s prosperity—particularly women, families of color, and low-wage workers. Assembly Constitutional Amendment 5 will help improve all of our daily lives by repealing Proposition 209 and eliminating discrimination in state contracts, hiring and education. [ACA-5] is about equal opportunity for all and investment in our communities.” She has also stated that “[a]s we look around the world, we see there is an urgent cry — an urgent cry for change. After 25 years of quantitative and qualitative data, we see that race-neutral solutions cannot fix problems steeped in race.

Another supporter is President of the University of California, Janet Napolitano, who has said that:

It makes little sense to exclude any consideration of race in admissions when the aim of the University’s holistic process is to fully understand and evaluate each applicant through multiple dimensions. Proposition 209 has forced California public institutions to try to address racial inequality without factoring in race, even where allowed by federal law. The diversity of our university and higher education institutions across California, should — and must — represent the rich diversity of our state.

However, the opposition have expressed their concern. For instance, Asm. Steven S. Choi asked if it is “right to give someone a job just because they are white, or black or green or yellow? Or just because they are male? Repealing Proposition 209, enacted by voters 24 years ago, is to repeal the prohibition of judgment based on race, sex, color, ethnicity and national origin. We are talking about legalizing racism and sexism.

Another opposer is co-founder of San Diego Asian Americans for Equality, who wrote that:

Race is a forbidden classification for good reason, because it demeans the dignity and worth of a person to be judged by ancestry instead of his or her own merit and essential qualities. Racial preference is not transformed from patently unconstitutional into a compelling state interest simply by relabeling it racial diversity. … Judging people by their skin color is morally repugnant. Equal opportunity is referenced to individual merits, it never guarantees equal results. To the contrary, enforcing equal outcome regardless of qualification and effort bears the hallmark of communism.

Although these are turbulent times for Americans (and the rest of the world for that matter), one thing is certain: repealing Proposition 209 will be a significant moment in US politics. What do you think? Will ACA-5 create more equal opportunity? Or is it rather suggesting equal outcome? Should Proposition 209 by changed rather than repealed? Will the outcome be more or less systemic discrimination? Will Californians vote for structural change or preserve the status quo? Let us know in the comment section below, on our Instagram, Facebook or Twitter.

Stay safe, everyone.

Sources:

Ballopedia, 2020
https://ballotpedia.org/California_Proposition_209,_Affirmative_Action_Initiative_(1996)

Ballotpedia, 2020
https://ballotpedia.org/California_Repeal_Proposition_209_Affirmative_Action_Amendment_(2020)

California Legislative Information, June 4th 2020
http://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200ACA5

Gail L. Heriot, June 3rd 2001
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3174776

Legislative Analyst’s Office, November 1996
https://lao.ca.gov/ballot/1996/prop209_11_1996.html

Tim Pool, June 19th 2020
https://www.youtube.com/watch?v=S9rdGvme-6U

Washington Post, November 22nd 2004
https://www.washingtonpost.com/wp-dyn/articles/A2830-2004Nov21.html

Wikipedia, June 19th 2020
https://en.wikipedia.org/wiki/1996_California_Proposition_209

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