A skinnier affirmative action: A new CA ballot measure

California voters may soon vote on whether they support using state money to fund programs that improve the health, education or economic well-being of specific racial, ethnic and sexual or gender groups.

“Didn’t we already vote this down in 2020?” a voter may rightfully ask, referring to the failed campaign of Proposition 16, which sought to undo California’s voter-approved 1996 ban on using race, sex, national origin and ethnicity as a factor in public university admissions and other state programs.

The latest effort, known as Assembly Constitutional Amendment 7, wouldn’t fully overturn Proposition 209, which created the country’s first ban on affirmative action 27 years ago. Instead, it would allow state agencies to send the governor a waiver request to avoid Proposition 209’s restrictions, as long as the exception is based on scholarly research.

The aim is to have the constitutional amendment appear as a proposition on the November 2024 ballot, when voters will decide the country’s next president. To get there, the measure needs to clear each chamber in the state Legislature by a two-thirds vote.

So far the measure has passed two committees in the state Assembly and awaits a hearing in a third.

Beyond those basic details, though, there’s little agreement over what impact the measure would have on California. Would it bring back racial preferences in admissions? Unclear. Will it permit new race-based programs that clear federal law and court precedent? Another unknown. 

The point of the measure

As with the 2020 ballot measure, the current effort is meant to compensate for the myriad effects historical prejudice has had on specific groups of people, such as housing discrimination or police profiling. It’s a concept known as equity: making up for past racial injustices by using race as a factor in programs that can help undo those injustices. 

The measure is an “acknowledgment that Prop. 209 was a failed experiment,” said Assemblymember Corey Jackson, a Democrat from Perris who’s the author of the amendment.

He wants state law relaxed so that lawmakers and state agencies can directly support Black and other marginalized state residents — such as by deploying public funds to address the much higher death rates of Black women giving birth or the lower life expectancy rates of Black and Native American people — while still working within some of the confines of Proposition 209.

The amendment’s focus on identity groups is “making sure that there are interventions that are specifically made for them to help solve the problems that are unique to them,” Jackson said.

The emphasis on using academic evidence is an attempt to persuade voters that state programs using race as a factor wouldn’t be subjective but would have to meet a high research bar to waive Proposition 209, Jackson said.

That data is also relevant in other ways. Frequently, the groups with poorer life outcomes have small populations. For example, Black and Native American residents combined make up less than a tenth of the state’s population. That means broader programs meant to help low-income Californians may still miss the specific needs of relatively small communities, including in higher education.

Using research-backed approaches to fund state programs is a way to ensure those smaller groups also get help, Jackson said.

That equity framework, however, is at odds with what backers of Proposition 209 sought — equality. 

“If passed, this amendment will significantly weaken California’s constitutional principle of equal treatment for all,” wrote Wenyuan Wu, executive director of Californians for Equal Rights Foundation, in a letter to lawmakers.

She told CalMatters she expects state Democrats to prevail in placing the measure on the ballot, but her group will fight it — and has the experience. Wu and other foundation officials played key roles in successfully campaigning against Proposition 16. 

The foundation she leads recently sued various city and state agencies for using race and sex as a factor in eligibility for public social programs.

Would this measure bring back affirmative action to California?

Unlike Proposition 16, this latest constitutional amendment effort to change Proposition 209 wouldn’t permit the state’s public universities to use race as a factor in admissions, Jackson said. 

Wu doesn’t believe him.

His measure would “bring back racial preferences, as long as racial preferences can be used to improve outcomes,” she said. That’s basically undoing Proposition 209 without saying so, her group argues.

For now, the state’s private universities can consider race in admissions, but federal education watchers expect that to change as soon as tomorrow. Most predict that the U.S. Supreme Court will strike down affirmative action nationally sometime in June, undoing a court precedent first established in 1978 in a case that concerned the University of California — auguring the system’s central role in setting the national debate around racial preferences.

Should the measure reach voters, convincing them to amend Proposition 209 will be a tall order. California’s liberal voting block wasn’t persuaded that the state needed to use race as a factor to solve its biggest problems. Even in progressive Los Angeles County, while a majority of every major racial and ethnic group backed Joe Biden, a Democrat, for president in 2020, most county Asian and white voters voted no on Proposition 16, according to The New York Times.

Gary Orfield, a professor at UCLA who focuses on civil rights in law and education, said Jackson’s measure could create a new legal terrain for the state’s many cultural groups to push for changes in state programs.

“Who knows how the state Supreme Court would interpret language like this or what kinds of issues would be invented that would require interpretation,” Orfield said, who added he’d probably vote for the measure if it appeared on the ballot.

“If you want to eliminate racial discrimination, you have to use race, and that’s what’s been prohibited by the U.S. Supreme Court.”

Thomas Saenz, president and general counsel, Mexican American Legal Defense and Educational Fund

However, it’s hard to predict what those issues or interpretations would look like because the measure’s language and scope are so broad.

So broad, in fact, that like Wu, he thinks the language could permit California public colleges to use race as a factor in admissions — though, again, that permission would be overruled if the U.S. Supreme Court strikes down affirmative action as expected. 

Of course, a future court could overturn a ban on affirmative action — the U.S. Supreme Court has a long history of overruling precedent. So in an era in which affirmative action were legal nationally, Jackson’s measure is, in Orfield’s view, “ambiguous” enough that a state agency could point to studies showing that race-based affirmative action does lead to educational gains for students of color.

There’s ample evidence affirmative action has research-backed support: Last year more than 1,200 academics who study race and education signed legal briefs asking the U.S. Supreme Court to uphold race-based admissions. 

But the role of research in Jackson’s measure could be clearer, Orfield said, especially because the governor would have final say on which programs get Proposition 209 waivers. “Who would decide what research was good and what research wasn’t so good,” he asked, a point Wu echoed.

Plus, which programs get waivers will likely depend on the governor’s political leanings — and even deep-blue states elect Republicans. 

Will Jackson’s proposed amendment work legally?

Jackson’s proposal isn’t likely to reach that goal of overcoming past racial and ethnic injustices, said Thomas Saenz, president and general counsel of Mexican American Legal Defense and Educational Fund, a decades-old organization that NBC News in 2016 described as “the law firm of the Latino community.” 

Saenz told CalMatters that he doesn’t see how the amendment could make a difference in California.

If the purpose of the measure is to support race-neutral programs that still benefit certain racial and ethnic groups disproportionately, state and federal law already allow that. Common examples are spending more money on students who are low income, previously in the foster care system or are learning English as a second language.

But if the measure wants to permit state decision-making based on race, such as hiring more academic tutors specifically for a racial group that has the lowest graduation rates at a public college, that likely wouldn’t fly federally. 

Saenz, who was a co-chairperson of the campaign in favor of Proposition 16, said that under current federal law and court precedent “something that specifically excludes everyone else based on race probably can’t meet the ‘narrow tailoring’ requirements” in place that tell government agencies to use race as minimally as possible.

Instead, state lawmakers would have to include far more specific race-neutral eligibility criteria to target underrepresented identity groups, which is time-consuming, difficult and, in his view, insufficient.

“If you want to eliminate racial discrimination, you have to use race, and that’s what’s been prohibited by the U.S. Supreme Court,” Saenz said, except in college admissions, which likely won’t be the case by the end of June.

Jackson understands those federal arguments, but as a state lawmaker, his focus is on state laws, he said. Though the current makeup of the U.S. Supreme Court is ideologically skeptical of racial preferences, that could change.

Until then, Jackson wants California’s laws on racial preferences to at least match federal rules — so if they change, California’s laws will shift in tandem. 

Even if the highest court in the land “is not in our favor, that doesn’t mean that we should not push back against it,” Jackson said.