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Ghost of Proposition 209 haunts November ballot

Voters casting their ballots at a local precinct. (Photo: Joseph Sohm, Shutterstock)

Proposition 209, the constitutional amendment intended to prevent discrimination or preferential treatment on the basis of race, ethnicity, or sex in areas like public education and contracting, was approved by California voters a generation ago.

In November, they will decide whether to get rid of it.

California lawmakers, in a decision that marks yet another move in a decades-long, back-and-forth debate about the appropriate role of affirmative action, decided in June to place the repeal before voters on Nov. 3. It will appear as Proposition 16.

Connerly, 81, is against the repeal and has joined with some Asian American groups in their opposition.

When Proposition 209, or the California Civil Rights Initiative, was originally passed in November 1996 with 54.6% of the vote, it was the first piece of legislation of its kind in the United States. It was viewed as a means of dismantling affirmative action, which allowed racial and other preferences in public hiring and admissions in order to make up for a history of discrimination.

The initiative was notably supported by former Republican Gov. Pete Wilson and its campaign led by University of California Regent Ward Connerly, who largely drafted the measure. 

Connerly, 81, is against the repeal and has joined with some Asian American groups in their opposition.

Proposition 209 was opposed by a number of groups, including the ACLU, the California Teachers Association and the Carnegie, Ford, and Rockefeller foundations.

In July of 1996, a number of activist groups, including the NAACP, filed a court challenge claiming that the text of the proposed measure obfuscated its actual intention, in particular because it did not contain the phrase ‘affirmative action.’

There have been a number of legislative attempts to do away with Proposition 209, all of which have been unsuccessful.

The suit prompted U.S. District Judge Thelton Henderson to block the law just weeks after its passage. That decision was then overruled by a three-judge panel from the 9th Circuit Court of Appeals.

There have been several other legal challenges to Proposition 209 since then, including two suits in 2000 and 2010 that reached the California Supreme Court. In both of these instances the amendment was upheld, once unanimously and once with a single dissenting justice.

Similarly, there have been a number of legislative attempts to do away with Proposition 209, all of which have been unsuccessful.

In 2011, SB 185, a bill that would have partially sidestepped Proposition 209 by allowing UC and CSU campuses to consider its prohibited criteria in their admissions processes, passed both chambers in the state Legislature. The bill was vetoed by then-Gov. Jerry Brown.

“Signing this bill is unlikely to impact how Proposition 209 is ultimately interpreted by the courts; it will just encourage the 209 advocates to file more costly and confusing lawsuits,” Brown wrote in his October 2011 veto message.

“If it passes, Asian American students will be further scapegoated and penalized in college admissions.”  — Wenyuan Wu,

In 2013, a repeal was slated to go to voters, but it was abandoned because of opposition from some advocacy groups.

While ACA 5 — the measure that became Proposition 16 on the November ballot — was still in the state Assembly in early June, some Asian American lawmakers contended that the concerns of adverse effects of a repeal on their community had not been adequately taken into account.

In an opinion piece for the Orange County Register, former state Sens. Tom Campbell and Quentin Kopp mirrored these concerns.

“The pressure to repeal it [Proposition 209] now stems from a desire to help African-Americans in today’s circumstances. But we must not do so at the expense of another racial group, one whose history of mistreatment is especially odious in our state,” they wrote.

Campbell and Kopp argued that in an area like college admissions, a repeal of Proposititon 209 would benefit African-Americans and “penalize” Asian-Americans, because of the substantial difference in size between the two populations.

“If it passes, Asian American students will be further scapegoated and penalized in college admissions,” Wenyuan Wu, an Asian American activist, told the Wall Street Journal.

UC now believes that omitting consideration of race does not do justice to the way they review applicants.

With ACA 5 now on the ballot, the measure appears to be Proposition 209’s most notable challenge in the quarter century since it was enacted.

Before the Senate’s decision last month, the repeal had already garnered some extremely important endorsements.

On June 15, the University of California came out in support of the repeal. The UC Board of Regents unanimously endorsed both ACA 5 and the repeal of Proposition 209, saying in a statement that their decision to do so “underscore[s] the proactive need to help address systemic and perpetual inequalities in public education.”

UC contends it has tried to increase diversity on its campuses during the period that the anti-affirmative action policy has been in effect, using a “comprehensive and holistic application review, expanded funds for diversity programs, and partnerships with K-12 schools to target underserved communities.”

UC now believes that omitting consideration of race does not do justice to the way they review applicants.

More than 20 years later, the Board of Regents’ opinion on affirmative action seems to have caught up with the Rev. Jesse Jackson’s.

“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,” said University of California President Janet Napolitano.

The announcement is an ostensible reversal of the position UC took in 1995, just a year before Proposition 209’s passage, when the Board of Regents moved to ban affirmative action within their system of colleges, a move that the Rev. Jesse Jackson called “a blatant act of racism”.

More than 20 years later, the Board of Regents’ opinion on affirmative action seems to have caught up with Jackson’s. The regents’ June 15 statement reads: “UC has long been committed to creating and maintaining a student body that reflects California’s laudable cultural, racial, geographic and socioeconomic diversity. However, Proposition 209 has challenged the University’s ardent efforts to be equitable and inclusive as it seeks to attract the best and brightest students from all backgrounds, while ensuring equal opportunity for all.”

There is some disagreement over the effects of Proposition 209 on minority groups, particularly when it comes to college admissions and retention.

ACA 5 also earned the endorsement of the California State University System.

On June 8, Chancellor Timothy White wrote in a letter to the state Assembly that “ACA 5 allows voters to repeal provisions of Proposition 209 of 1996 that have had a negative impact on access to higher education, as well as retention and degree completion for historically underserved students in California, particularly those from the African-American community.”

White’s statement adds that “we know that we could do more, particularly for African American students, if Prop. 209 prohibitions were no longer in place.”

According to a report from the National Association of Scholars, both groups saw their enrollment go down at UC Berkeley and UCLA.

There is some disagreement over the effects of Proposition 209 on minority groups, particularly when it comes to college admissions and retention.

In the UC system, first-year enrollment for African American students has fluctuated since Proposition 209 took effect, but has remained low at less than 4%. Rates for Hispanics, however, increased significantly, to around 20%.

According to a report from the National Association of Scholars, both groups saw their enrollment go down at UC Berkeley and UCLA. The report suggests that even with the declines at those specific campuses, minority students had success in “actually completing a baccalaureate degree when they attended a UC campus that offered an apparently better match for their academic backgrounds and preparation.”

A report directly from the University of California on the effects of Proposition  209 paints a different picture.

“Among California URG [Underrepresented Groups] high school graduates who applied to the University of California, the end of affirmative action led to a decreased likelihood of earning a college degree within six years, a decreased likelihood of ever earning a graduate degree, and long-run declines in average wages and the likelihood of earning high wages by California standards.”


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