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.
鈥淒idn鈥檛 we already vote this down in 2020?鈥� a voter may rightfully ask, referring to the , which sought to undo California鈥檚 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 , wouldn鈥檛 fully overturn Proposition 209, which created the country鈥檚 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鈥檚 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鈥檚 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鈥檚 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鈥檚 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 鈥渁cknowledgment that Prop. 209 was a failed experiment,鈥� said Assemblymember Corey Jackson, a Democrat from Perris who鈥檚 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 鈥� such as by deploying public funds to address the much or the 鈥� while still working within some of the confines of Proposition 209.
The amendment鈥檚 focus on identity groups is 鈥渕aking sure that there are interventions that are specifically made for them to help solve the problems that are unique to them,鈥� Jackson said.
The emphasis on using academic evidence is an attempt to persuade voters that state programs using race as a factor wouldn鈥檛 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 of the state鈥檚 population. That means broader programs meant to help low-income Californians may still miss the specific needs of relatively small communities, .
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 鈥� equality.
鈥淚f passed, this amendment will significantly weaken California鈥檚 constitutional principle of equal treatment for all,鈥� wrote Wenyuan Wu, executive director of Californians for Equal Rights Foundation, .
She told CalMatters she expects state Democrats to prevail in placing the measure on the ballot, but her group will fight it 鈥� and has the experience. Wu and other foundation officials played key roles in .
The foundation she leads recently 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鈥檛 permit the state鈥檚 public universities to use race as a factor in admissions, Jackson said.
Wu doesn鈥檛 believe him.
His measure would 鈥渂ring back racial preferences, as long as racial preferences can be used to improve outcomes,鈥� she said. That鈥檚 basically undoing Proposition 209 without saying so, .
For now, , 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 鈥� auguring the system鈥檚 central role in around .
Should the measure reach voters, convincing them to amend Proposition 209 will be a tall order. California鈥檚 liberal voting block 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, Gary Orfield, a professor at UCLA who focuses on civil rights in law and education, said Jackson鈥檚 measure could create a new legal terrain for the state鈥檚 many cultural groups to push for changes in state programs.
鈥淲ho knows how the state Supreme Court would interpret language like this or what kinds of issues would be invented that would require interpretation,鈥� Orfield said, who added he鈥檇 probably vote for the measure if it appeared on the ballot.
鈥淚f you want to eliminate racial discrimination, you have to use race, and that鈥檚 what鈥檚 been prohibited by the U.S. Supreme Court.鈥�THOMAS SAENZ, PRESIDENT AND GENERAL COUNSEL, MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
However, it鈥檚 hard to predict what those issues or interpretations would look like because the measure鈥檚 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 鈥� 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 鈥� the U.S. Supreme Court has a long history of overruling precedent. So in an era in which affirmative action were legal nationally, Jackson鈥檚 measure is, in Orfield鈥檚 view, 鈥渁mbiguous鈥� 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鈥檚 ample evidence affirmative action has research-backed support: Last year more than 1,200 academics who study race and education asking the U.S. Supreme Court to uphold race-based admissions.
But the role of research in Jackson鈥檚 measure could be clearer, Orfield said, especially because the governor would have final say on which programs get Proposition 209 waivers. 鈥淲ho would decide what research was good and what research wasn鈥檛 so good,鈥� he asked, a point Wu echoed.
Plus, which programs get waivers will likely depend on the governor鈥檚 political leanings 鈥� and .
Will Jackson鈥檚 proposed amendment work legally?
Jackson鈥檚 proposal isn鈥檛 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 as 鈥渢he law firm of the Latino community.鈥�
Saenz told CalMatters that he doesn鈥檛 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鈥檛 fly federally.
Saenz, , said that under current federal law and court precedent 鈥渟omething that specifically excludes everyone else based on race probably can鈥檛 meet the 鈥榥arrow tailoring鈥� requirements鈥� in place that tell government agencies .
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.
鈥淚f you want to eliminate racial discrimination, you have to use race, and that鈥檚 what鈥檚 been prohibited by the U.S. Supreme Court,鈥� Saenz said, except in college admissions, which likely won鈥檛 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鈥檚 laws on racial preferences to at least match federal rules 鈥� so if they change, California鈥檚 laws will shift in tandem.
Even if the highest court in the land 鈥渋s not in our favor, that doesn鈥檛 mean that we should not push back against it,鈥� Jackson said.
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