1996 California Proposition 209

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Proposition 209 (also known as the California Civil Rights Initiative or CCRI) is a California ballot proposition which, upon approval in November 1996, amended the state constitution to prohibit state governmental institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Modeled on the Civil Rights Act of 1964, the California Civil Rights Initiative was authored by two California academics, Glynn Custred and Tom Wood. It was the first electoral test of affirmative action policies in North America. It passed with 55% in favor to 45% opposed, thereby banning affirmative action in the state's public sector.

Contents

History

Context

The controversy pertaining to affirmative action in California can most notably be traced back to the historic 1978 Supreme Court case Regents of the University of California v. Bakke. [1] There were two major decisions from the case that still stand today. Firstly, the quota system that was once used by the University of California, Davis’ admission process for minority students was ruled unlawful. Secondly, higher-level academic institutions were not prohibited from considering race in the admissions process. The ruling determined in Bakke acted as “a catalyst for voluntary affirmative action programs.” [1] Researchers suggest that the development of such programs for the sake of increasing campus diversity explains the controversy surrounding the implementation of Proposition 209 and Bakke marks the origination of affirmative action debates. [1] Consequently, judiciaries and politicians have since devoted efforts to reinterpreting affirmative action, its related practices, and consequences for students. [1]

Origins

The political campaign to place the language of CCRI on the California ballot as a constitutional amendment was initiated by Joe Gelman (president of the Board of Civil Service Commissioners of the City of Los Angeles), Arnold Steinberg (a pollster and political strategist) and Larry Arnn (president of the Claremont Institute). It was later endorsed by Governor Pete Wilson and supported and funded by the California Civil Rights Initiative Campaign, led by University of California Regent Ward Connerly, a Wilson ally. A key co-chair of the campaign was law professor Gail Heriot, who served as a member of the United States Commission on Civil Rights. The initiative was opposed by affirmative action advocates and traditional civil rights and feminist organizations on the left side of the political spectrum. Proposition 209 was voted into law on November 5, 1996, with 55 percent of the vote, and has withstood legal scrutiny ever since.

Senate Bill 185

On September 1, 2011, SB 185 passed both chambers of the California State Legislature, but was vetoed by Governor Jerry Brown. SB 185 would have countered Proposition 209 and authorized the University of California and the California State University to consider race, gender, ethnicity, and national origin, along with other relevant factors, in undergraduate and graduate admissions, to the maximum extent permitted by the 14th Amendment to the United States Constitution, Section 31 of Article I of the California Constitution, and relevant case law. SB 185 was strongly supported by the University of California Students Association.

Senate Constitutional Amendment No. 5

On December 3, 2012, California State Senator Edward Hernandez introduced California Senate Constitutional Amendment No.5 (SCA-5) in the State Senate. This initiative proposed an amendment to the state constitution to remove provisions of California Proposition 209 related to public post-secondary education, to permit state universities to consider applicants' race, gender, color, ethnicity, or national origin in admission decisions. If passed by both the State Senate and State Assembly, SCA-5 would have been presented to California voters in the November 2014 election. SCA-5 was passed by the California State Senate on January 30, 2014. On February 24, 2014, Gene D. Block, chancellor of UCLA, sent an open letter to all students and faculty expressing his strong opposition to Proposition 209. [2] Following resistance from various citizen groups, including Asian American groups, Senator Hernandez withdrew his measure from consideration. [3]

Proposition 16

On January 18, 2019, Assemblymembers Shirley Weber, Mike Gipson, and Miguel Santiago introduced Assembly Constitutional Amendment No. 5 (ACA 5) [4] ACA 5 was a proposed constitutional amendment that would have repealed the provisions enacted by Proposition 209. In June 2020, the California State Legislature passed ACA 5 with more than a two-thirds vote in each house, allowing the proposal to become a qualified ballot measure and later Proposition 16. Proposition 16 was rejected by voters in the November 2020 election, meaning that Prop 209 remains in the California Constitution.

Assembly Constitutional Amendment No. 7

In 2023, Assemblymember Corey Jackson introduced Assembly Constitutional Amendment No. 7 (ACA 7). [5] [6] According to CalMatters, ACA 7 "wouldn't fully overturn Proposition 209 [...] Instead, it would allow state agencies to send the governor a waiver request to avoid some of Proposition 209's restrictions, as long as the exception is based on scholarly research."

National impact

In November 2006, a similar amendment modeled on California's Proposition 209 was passed in Michigan, titled the Michigan Civil Rights Initiative. The constitutionality of the Michigan Civil Rights Initiative was challenged in the 6th Circuit Court of Appeals. The case, Schuette v. Coalition to Defend Affirmative Action , made its way to the United States Supreme Court. On April 22, 2014, the US Supreme Court ruled 6-2 that the Michigan Civil Rights Initiative is constitutional, and that states had the right to ban the practice of racial and gender preferences/affirmative action if they chose to do so through the electoral process.

Text

The text of Proposition 209 was drafted by Cal State anthropology professor Glynn Custred and California Association of Scholars Executive Director Thomas Wood. Its passage amended the California constitution to include a new section (Section 31 of Article I), which now reads:

(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. [7]

Support

Supporters of Proposition 209 contended that existing affirmative action programs led public employers and universities to reject applicants based on their race, and that Proposition 209 would "restore and reconfirm the historic intention of the 1964 Civil Rights Act." [8] The basic and simple premise of Proposition 209 is that every individual has a right, and that right is not to be discriminated against, or granted a preference, based on their race or gender. Since the number of available positions are limited, discriminating against or giving unearned preference to a person based solely, or even partially on race or gender deprives qualified applicants of all races an equal opportunity to succeed. It also pits one group against another and perpetuates social tension.

Individuals in support
Organizations in support

Opposition

Hundreds of students at U.C. Berkeley protested against the implementation of Proposition 209. Resist209flyer.jpg
Hundreds of students at U.C. Berkeley protested against the implementation of Proposition 209.

Opponents of Proposition 209 argued that it would end affirmative action practices of tutoring, mentoring, outreach and recruitment of women and minorities in California universities and businesses and would gut state and local protections against discrimination. [10] A large, multiethnic coalition of civil rights groups, politicians, and celebrities stood in opposition to Proposition 209. Immediately after passage of Proposition 209, students held demonstrations and walk-outs in protest at several universities including UC Berkeley, UCLA, UC Santa Cruz, and San Francisco State University. [11]

Individuals in opposition
Organizations in opposition [12]

Results

1996 California Proposition 209 results map by county.svg
Proposition 209
ChoiceVotes %
Check-71-128-204-brightblue.svg Yes5,268,46254.55
No4,388,73345.45
Valid votes9,657,19594.11
Invalid or blank votes604,4445.89
Total votes10,261,639100.00
Registered voters/turnout15,662,07565.53
Source: November 5, 1996, Complete General Election Statement of Vote

Voter demographics

On November 5, 1996, the Los Angeles Times conducted an exit poll of 2,473 voters who cast ballots in the general election at 40 polling places. The margin of error was 3 percent (higher for subgroups). The following is the exit poll data on Proposition 209: [13]

Los Angeles Times Exit Poll
Demographic subgroupSupportOppose % of

total vote

All Voters54% 46%100%
Ideology
Liberal27%73%21%
Moderate52%48%47%
Conservative77%23%32%
Party
Democratic31%69%21%
Republican80%20%38%
Independent59%41%14%
Gender
Male61%39%47%
Female48%52%53%
Race
White63%37%74%
Black26%74%7%
Latino24%76%10%
Asian39%61%5%
Age
18-2950%50%19%
30-4451%49%35%
45-6458%42%35%
65+60%40%11%
Family income
Less than $20,00041%59%12%
$20,000 to $39,99948%52%24%
$40,000 to $59,99956%44%23%
$60,000 to $74,99965%35%15%
$75,000+59%41%26%
Education
High School or Less54%46%20%
Some College60%40%29%
College or More54%46%27%
Post-Graduate48%52%24%
Religion
Protestant62%38%49%
Catholic54%46%24%
Jewish42%58%6%

Aftermath

On November 27, 1996, U.S. District Court Judge Thelton Henderson blocked enforcement of the proposition. [14] A three-judge panel of the 9th Circuit Court of Appeals subsequently overturned that ruling. [15] Proposition 209 has been the subject of many lawsuits in state courts since its passage but has withstood legal scrutiny over the years.

On August 2, 2010, the Supreme Court of California found for the second time that Proposition 209 was constitutional. [16] [17] The ruling, by a 6-1 majority, followed a unanimous affirmation in 2000 of the constitutionality of Prop. 209 by the same court. [18] [19]

On April 2, 2012, the 9th U.S. Circuit Court of Appeals rejected the latest challenge to Proposition 209. The three-judge panel concluded that it was bound by a 9th Circuit ruling in 1997 upholding the constitutionality of the affirmative action ban. Ninth Circuit Judge A. Wallace Tashima disagreed in part with the ruling, saying he believes the court "wrongly decided" the issue in 1997. [20] [21]

Effect on enrollment, graduation, and income

According to UC Office of the President, "Proposition 209 instigated a dramatic change in UC admissions policy, with URG [under represented group] enrollment at the Berkeley and UCLA campuses immediately falling by more than 60 percent and systemwide URG enrollment falling by at least 12 percent." [22] The same report concluded that "Prop 209 led URG applicants to cascade out of UC into measurably less-advantageous universities, which combined with declines in degree attainment and STEM persistence to lower each URG applicant's wages by about 5 percent between ages 23 and 35."

Based on "University of California Applicants, Admits and New Enrollees by Campus, Race/Ethnicity", prepared by Institutional Research, the University of California Office of the President, August 11, 2011, enrollment percentages of the four major ethnic groups university-wide are:

Ethnic group enrollment percentages in first-year enrollment of University of California (%)
Ethnic group199419951996199719981999200020012002200320042005200620072008200920102021
African American4.34.23.73.82.92.83.02.83.03.12.82.93.03.63.83.63.75
Asian37.135.236.136.435.337.437.438.138.637.940.040.141.340.838.839.939.834
Latin American15.215.113.412.711.311.912.212.913.413.914.214.715.516.718.119.220.737
White36.237.438.440.233.837.836.735.935.734.933.833.931.931.330.629.726.820

African American enrollment rates dropped significantly immediately after the passage of Prop 209. [23] Criticism was raised that of the 4,422 students in UCLA's freshman class of 2006, only 96 (2.26%) were African American. [24] Despite this, African-American enrollment has rebounded and even exceeded its pre-Prop 209 percentages.

The percentage of Latino students admitted to the UC system as of 2007 exceeded the Proposition 209 level; however, this is a reflection of the increase in the Latino population in the state of California and the increased capacity within the UC system. [25]

Researchers also found that enrollment statistics for Native American students beginning in 1997 through 2006 declined by 38% cumulatively and, unlike other ethnic groups, has not increased since. [25]

A comprehensive, peer-reviewed study by Zachary Bleemer found that Prop 209 has had a negative impact on graduation rates, graduate school attendance, and income for black and Hispanic students. [26] [27]

In 2021, the University of California freshmen class reached an all-time high with 84,223 students. Latinos were the largest group at 37%; Asian Americans at 34%; white students at 20%; African-Americans at 5%; and 4% composed of American Indians, Pacific Islanders or those who declined to state their race or ethnicity. [28]

Private sector response

One response to Proposition 209 was the establishment of the IDEAL Scholars Fund to provide community and financial support for underrepresented students at the University of California, Berkeley. Private universities and colleges, as well as employers, are not subject to Proposition 209 unless they receive public contracts.

See also

Related Research Articles

Regents of the University of California v. Bakke, 438 U.S. 265 (1978), was a landmark decision by the Supreme Court of the United States that involved a dispute of whether preferential treatment for minorities could reduce educational opportunities for whites without violating the Constitution. It upheld affirmative action, allowing race to be one of several factors in college admission policy. However, the court ruled that specific racial quotas, such as the 16 out of 100 seats set aside for minority students by the University of California, Davis, School of Medicine, were impermissible.

Grutter v. Bollinger, 539 U.S. 306 (2003), was a landmark case of the Supreme Court of the United States concerning affirmative action in student admissions. The Court held that a student admissions process that favors "underrepresented minority groups" did not violate the Fourteenth Amendment's Equal Protection Clause so long as it took into account other factors evaluated on an individual basis for every applicant. The decision largely upheld the Court's decision in Regents of the University of California v. Bakke (1978), which allowed race to be a consideration in admissions policy but held racial quotas to be unconstitutional. In Gratz v. Bollinger (2003), a separate case decided on the same day as Grutter, the Court struck down a points-based admissions system that awarded an automatic bonus to the admissions scores of minority applicants.

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<span class="mw-page-title-main">2000 California Proposition 22</span> Referendum in California on same-sex marriage ban

Proposition 22 was a law enacted by California voters in March 2000 stating that marriage was between one man and one woman. In November 2008, Proposition 8 was also passed by voters, again only allowing marriage between one man and one woman.

<span class="mw-page-title-main">Ward Connerly</span> American political activist and businessman (born 1939)

Wardell Anthony "Ward" Connerly is an American political and anti-affirmative action activist, businessman, and former University of California Regent (1993–2005). He is also the founder and the chairman of the American Civil Rights Institute, a national non-profit organization in opposition to racial and gender preferences, and is the president of Californians for Equal Rights, a non-profit organization active in the state of California with a similar mission. He is considered to be the man behind California's Proposition 209 prohibiting race- and gender-based preferences in state hiring, contracting and state university admissions, a program known as affirmative action.

<span class="mw-page-title-main">2004 California Proposition 59</span> Amendment of the Constitution of California

Proposition 59 was an amendment of the Constitution of California that introduced freedom of information or "sunshine" provisions. It was proposed by the California Legislature and overwhelmingly approved by the voters in an initiative held as part of the November 2004 elections.

<span class="mw-page-title-main">1964 California Proposition 14</span> 1964 California ballot proposition

California Proposition 14 was a November 1964 initiative ballot measure that amended the California state constitution to nullify the 1963 Rumford Fair Housing Act, thereby allowing property sellers, landlords and their agents to openly discriminate on ethnic grounds when selling or letting accommodations, as they had been permitted to before 1963. The proposition became law after receiving support from 65% of voters. In 1966, the California Supreme Court in a 5–2 split decision declared Proposition 14 unconstitutional under the equal protection clause of the United States Constitution. The U.S. Supreme Court affirmed that decision in 1967 in Reitman v. Mulkey.

<span class="mw-page-title-main">Michigan Civil Rights Initiative</span> American ballot initiative

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Chinese for Affirmative Action (CAA) is a San Francisco–based advocacy organization. Founded in 1969, its initial goals were equality of access to employment and the creation of job opportunities for Chinese Americans. The group broadened its mission in the subsequent decades. As of 2007, its stated mission is "to defend and promote the civil and political rights of Chinese and Asian Americans within the context of, and in the interest of, advancing multiracial democracy in the United States".

<span class="mw-page-title-main">Affirmative action in the United States</span>

In the United States, affirmative action consists of government-mandated, government-approved, and voluntary private programs granting special consideration to groups considered or classified as historically excluded, specifically racial minorities and women. These programs tend to focus on access to education and employment in order to redress the disadvantages associated with past and present discrimination. Another goal of affirmative action policies is to ensure that public institutions, such as universities, hospitals, and police forces, are more representative of the populations they serve.

<span class="mw-page-title-main">2008 California Proposition 8</span> Ballot proposition and state constitutional amendment

Proposition 8, known informally as Prop 8, was a California ballot proposition and a state constitutional amendment intended to ban same-sex marriage; it passed in the November 2008 California state elections and was later overturned in court. The proposition was created by opponents of same-sex marriage in advance of the California Supreme Court's May 2008 appeal ruling, In re Marriage Cases, which followed the short-lived 2004 same-sex weddings controversy and found the previous ban on same-sex marriage unconstitutional. Proposition 8 was ultimately ruled unconstitutional by a federal court in 2010, although the court decision did not go into effect until June 26, 2013, following the conclusion of proponents' appeals.

<span class="mw-page-title-main">2008 Colorado Amendment 46</span> Ballot measure in Colorado

Amendment 46, also known as the Colorado Civil Rights Initiative, was a proposed initiative on the Colorado ballot for 2008. If ratified, Article II of the Colorado Constitution would have stated:

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.

Eva Jefferson Paterson is the president and founder of the Equal Justice Society, a national legal organization focused on civil rights and anti-discrimination.

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<span class="mw-page-title-main">Senate Constitutional Amendment 5</span> Proposed California ballot measure

Senate Constitutional Amendment 5 was introduced by California State Senator Edward Hernandez to the California State Senate on December 3, 2012. This initiative would ask voters to consider eliminating California Proposition 209's ban on the use of race, sex, color, ethnicity, or national origin in recruitment, admissions, and retention programs at California's public universities and colleges. SCA 5 was passed in the California Senate on January 30, 2014 but was subsequently withdrawn by Hernandez due to strong opposition, mainly from Asian Americans.

<span class="mw-page-title-main">2020 California elections</span>

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<span class="mw-page-title-main">2020 California Proposition 16</span> California ballot measure to undo the states ban on affirmative action

Proposition 16 is a California ballot proposition that appeared on the November 3, 2020, general election ballot, asking California voters to amend the Constitution of California to repeal Proposition 209 (1996). Proposition 209 amended the state constitution to prohibit government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Therefore, Proposition 209 banned the use of race- and gender-based affirmative action in California's public sector.

<span class="mw-page-title-main">2020 California Proposition 19</span> Successful property tax ballot initiative

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<span class="mw-page-title-main">2022 California Proposition 1</span> Abortion and contraception proposition

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References

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  4. "ASSEMBLY CONSTITUTIONAL AMENDMENT NO. 5(January 18, 2019)".
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  18. Hi-Voltage Wire Works, Inc. v. City of San Jose, 24Cal.4th537 ( Cal. 2000).
  19. Mintz, Howard (2010-08-02). "California Supreme Court upholds Prop. 209 affirmative action ban". San Jose Mercury News . Retrieved 5 October 2013.
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