California Voters May Reinstate ‘Affirmative Action’ - Should State Institutions Prioritize Minority Groups in Employment & College Admissions?

What’s the story?

• California’s legislature in June voted to set up a November referendum that will allow the Golden State’s voters to decide whether to repeal a constitutional amendment prohibiting the use of “affirmative action” policies in state employment & contracting decisions, and in higher education admissions decisions. 
• The legislature voted almost exclusively along party-lines in the Senate (30-10) & the Assembly (64-14), with Democrats supporting the referendum to reinstate affirmative action & all but two Republican lawmakers opposed. The referendum has been designated as Proposition 16 for the November ballot.
• California was the first of nine states to ban affirmative action, although Texas’s ban was reversed by a Supreme Court ruling in 2003, so only eight states currently prohibit affirmative action in state institutions. California voters adopted the constitutional amendment banning affirmative action in state institutions through Proposition 209 in 1996 with 54.55% of voters in favor of the amendment.
• California’s November referendum is similar to one held in Washington state in 2019, where voters narrowly rejected an effort to reinstate affirmative action by a 50.56% to 49.44% margin. Washingtonians had adopted their affirmative action ban with 58.22% of the vote in 1998.

What is affirmative action?

• In general, affirmative action refers to laws, policies, or other practices that seek to eliminate & correct discrimination by providing special consideration in employment & higher education decisions to members of racial minority groups and women. 
• Affirmative action has been implemented as government-mandated or government-approved, while there are also voluntary private forms of affirmative action. In the past, affirmative action takes the form of racial quotas and outreach to groups viewed by the institution as underrepresented.
• The U.S. Supreme Court has issued decisions allowing some forms of affirmative action but requires such policies to pass the threshold of “strict scrutiny” ― which means that the policies have to be narrowly tailored & advance a compelling state interest. Decisions have found racial quotas & racial point systems in college admissions to be unconstitutional, but that individualized reviews of applicants that take into account numerous factors including race can be permitted if they’re used to serve an interest like educational diversity.
• In the case of this referendum, Proposition 16 would strike text from the California Constitution added by Proposition 209 to allow race- and sex-based affirmative action policies in state employment, contracting, and higher education admissions decisions. The text that would be stricken includes:

“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.”

What do supporters of reinstating affirmative action say?

• Janet Napolitano, a former Democratic governor of Arizona who served as a Cabinet member in the Obama administration and is currently the president of the University of California system, stated:

“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.”

• Assemblywoman Shirley Weber (D-San Diego), the lead sponsor of the legislature’s bill (ACA 5) to refer the constitutional amendment to voters, said:

“The ongoing pandemic, as well as recent tragedies of police violence, is forcing Californians to acknowledge the deep-seated inequality and far-reaching institutional failures that show your race and gender still matter.”

What do opponents of affirmative action say?

• California Senator Ling Ling Chang (R-Diamond Bar) offered the following statement after the bill set up the referendum to repeal the ban on affirmative action advanced in the Senate:

“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. The answer is to strengthen our institutions by improving our education system so all students have access to a quality education, and give opportunities to those who are economically disadvantaged. ACA 5 legalizes racial discrimination and that’s wrong.”

• The editorial board of The Wall Street Journal expressed opposition to the reinstatement of affirmative action in California through an editorial which read in part:

“Last November voters in Washington state narrowly defeated a similar amendment, though opponents were vastly outspent by those favoring racial preferences. California is a more liberal state and its political class and nearly all media will support repeal. But judging individuals by the color of their skin is antithetical to equal justice under the law. Let’s hope Californians hold on to this American principle of equality that goes back to the Declaration of Independence, the 14th Amendment, and the civil-rights movement.”

— Eric Revell

(Photo Credit: John-Morgan via Flickr / Creative Commons)