Proposition 209, or the Affirmative Action Initiative, was a proposal set forth in California in November, 1996. The proposition added a section to the California Constitution’s Declaration of Rights, which would prohibit the state from discriminating against or granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (1). So why now in 2020 do Californian Democrats look to Amend that law? (2)
It’s believed the elimination of affirmative action policies which came along with prop 209 had little effect on underrepresented minorities in California’s public higher education system, with the overall applications, admissions, enrollment, and graduation rates at University of California declining, and only partially recovering in the recent years (3). Though the issue seems broader than universities: “Since Proposition 209’s passage, California has become one of only eight states that do not allow race or gender to be among the many factors considered in hiring, allotting state contracts or accepting students into the state’s public colleges and universities.”(4)
Support for the repeal (ACA5) was high, with 75.95% of members in the California State Assembly voting yes on the repeal, with 58 Democrats and 1 Republican, and also passing the Senate, 75% yes 30 to 10 (29D and 1 R). Assembly Member (Asm.) Shirley Weber, who is the principal sponsor of the constitutional amendment believes that it, “will help improve all of our daily lives by repealing Proposition 209 and eliminating discrimination in state contracts, hiring and education,”(5) and has been quoted as saying “After 25 years of quantitative and qualitative data, we see that race-neutral solutions cannot fix problems steeped in race.”(6) The President of the University of California, Janet Napolitano appears to have similar ideas, stating that Proposition 209 forced public institutions in California to attempt to address racial inequality without being able to factor in race, even where federal law may allow for it, and that the diversity of the University should represent that of the State.(7)
It seems the reason for the repeal is an attempt to increase minority percentages through universities and work environments in the public sector, and to right the wrongs of what is believed to be systemic racism in the United States. “Today, colleges can consider whether you’re from the suburbs, a city or a rural area. They can consider what high school you went to. They can consider your family’s economic background. They can look at virtually everything about you — but not race. It makes no sense — and is unfair — that schools can’t consider something that is so core to our lived experience.” (8) Varsha Sarveshwar, the president of the University of California Student Association wrote.
What about the opposition for the repeal, what are the opinions of those who want to keep Proposition 209 as it stands?
One of the prominent opponents to the bill, Senator Ling Ling Chang, argues that discrimination based on colour or sex is inherently wrong, “I have experienced racial discrimination so I know what that’s like. But the answer to racial discrimination is not more discrimination which is what this bill proposes.”(9) Which is supported by others, such as Assembly Member (ASM.) Steven S. Choi, who is quoted as saying, “Is it 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.” (10).
Some question whether or not it is a violation of the United States 14th Amendment, which was passed to abolish slavery and achieve civil rights for black Americans, it guaranteed all citizens “equal protection of the law”(11). This issue was raised in the Assembly Floor Analysis (12) and supported by Wen Fa, an attorney with the Pacific Legal Foundation who points out the need for review against the 14th amendment (13).
The last prominent argument is that Repealing Proposition 209 would cause a divide among Californians, with certain Races being afforded luxuries where others may receive nothing, or even become at a disadvantage in the name of equal outcome, not opportunity. Former U.S Representative Tom Campbell, points out in his opinion piece for the Orange County Register that, “if more spaces are to be made for the under-represented, they must come from the over-represented. Asian Americans are 15.3 percent of Californians, yet 39.72 percent of UC enrollees. Those numbers are why bringing this issue forward now would inevitably divide Californians racially: Latino Americans and African Americans on one side, Asian Americans on the other. The politics are inescapably racial.”(14)
Whilst this enables a type of “positive discrimination”, it opens the door once more for negative discrimination, when the bill was introduced to rid of discrimination for good. “The only honest and effective way to address inequality of opportunity is by making sure that all California children are provided with the tools to compete in our society. And then let them succeed on a fair, color-blind, race-blind, gender-blind basis. Let’s not perpetuate the myth that ‘’minorities” and women cannot compete without special preferences. Let’s instead move forward by returning to the fundamentals of our democracy: individual achievement, equal opportunity and zero tolerance for discrimination against — or for — any individual.” (15)
-Trent Naz
(1) Vigarchive.sos.ca.gov. n.d. CA Secretary Of State — Vote96 — Text Of Proposition 209. [online] Available at: <http://vigarchive.sos.ca.gov/1996/general/pamphlet/209text.htm> [Accessed 22 June 2020].
(2) Ballotpedia. 2020. California Repeal Proposition 209 Affirmative Action Amendment (2020) — Ballotpedia. [online] Available at: <https://ballotpedia.org/California_Repeal_Proposition_209_Affirmative_Action_Amendment_(2020)> [Accessed 22 June 2020].
(3) Ian Wang,Finding a Silver Lining: The Positive Impact of Looking Beyond Race Amidst the Negative Effects of Proposition 209, 2008 BYUEduc.& L.J. 149 (2008).Available at: https://digitalcommons.law.byu.edu/elj/vol2008/iss1/6 (4) Weber, S., 2020. Why California Should Repeal Prop. 209 And Allow State Institutions To Consider Race. [online] San Diego Union-Tribune. Available at: <https://www.sandiegouniontribune.com/opinion/story/2020-06-09/california-repeal-prop-209-affirmative-action> [Accessed 20 June 2020]. (5) Leginfo.legislature.ca.gov. 2020. Bill Analysis. [online] Available at: <https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201920200ACA5> [Accessed 21 June 2020]. (6) Koseff, A., 2020. California Bill Asking Voters Whether To Repeal Anti-Affirmative Action Prop. 209 Advances. [online] SFChronicle.com. Available at: <https://www.sfchronicle.com/politics/article/California-bill-asking-voters-whether-to-repeal-15331604.php> [Accessed 22 June 2020]. (7) University of California. 2020. UC Board Of Regents Unanimously Endorses ACA 5, Repeal Of Prop. 209. [online] Available at: <https://www.universityofcalifornia.edu/press-room/uc-board-regents-endorses-aca-5-repeal-prop-209> [Accessed 20 June 2020].
(8) Sarveshwar, V., 2020. State Legislature Must Let Californians Vote On Whether To Restore Affirmative Action. [online] The Sacramento Bee. Available at: <https://www.sacbee.com/article243306511.html> [Accessed 20 June 2020].
(9) Chang, L., 2020. Senator Chang Issues Statement On ACA 5 Vote. [online] Ling Ling Chang. Available at: <https://chang.cssrc.us/content/senator-chang-issues-statement-aca-5-vote> [Accessed 23 June 2020].
(10) The Sacramento Bee. 2020. CA Voters Could See Affirmative Action On November Ballot. [online] Available at: <https://www.sacbee.com/news/politics-government/capitol-alert/article243426346.html> [Accessed 23 June 2020]. (11) Editors, H., 2020. 14Th Amendment. [online] HISTORY. Available at: <https://www.history.com/topics/black-history/fourteenth-amendment> [Accessed 25 June 2020]. (12) Leginfo.legislature.ca.gov. 2020. Bill Analysis — Assembly Floor Analysis. [online] Available at: <https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201920200ACA5> [Accessed 29 June 2020].
(13) Stecker, T., 2020. California Proposal Could Bring Back Affirmative Action (1). [online] News.bloomberglaw.com. Available at: <https://news.bloomberglaw.com/daily-labor-report/california-proposal-could-bring-back-affirmative-action> [Accessed 22 June 2020].
(14) Campbell, T., 2020. California Doesn’T Need A New Fight Over Proposition 209. [online] Ocregister.com. Available at: <https://www.ocregister.com/2020/03/30/california-doesnt-need-a-new-fight-over-proposition-209/> [Accessed 21 June 2020].
(15) Vigarchive.sos.ca.gov. 1996. CA Secretary Of State — Vote96 — Argument In Favor Of Proposition 209. [online] Available at: <http://vigarchive.sos.ca.gov/1996/general/pamphlet/209yesarg.htm> [Accessed 23 June 2020].
