BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2047
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          Date of Hearing:  April 20, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
               AB 2047 (Hernandez) - As Introduced:  February 17, 2010

                              As Proposed to Be Amended
           
          SUBJECT  :  PUBLIC POSTSECONDARY EDUCATION: ADMISSIONS POLICIES

           KEY ISSUE  :  SHOULD THE UC AND CSU BE PERMITTED TO CONSIDER  
          RELEVANT DATA IN UNDERGRADUATE AND GRADUATE ADMISSIONS TO THE  
          EXTENT PERMITTED BY THE EQUAL PROTECTION CLAUSE OF THE 14TH  
          AMENDMENT?

           FISCAL EFFECT  :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          According to the author, recent reports have shown that  
          California high schools are graduating more underrepresented  
          students who, despite being eligible for admission, are not  
          enrolling in the UC and CSU in similar proportions.  This bill  
          represents the laudable effort of the author to address this  
          significant decrease, which the author's supporting data  
          indicates is attributable to the passage of Proposition 209.   
          While Prop. 209 is ardently defended by its supporters as the  
          proper policy, others argue just as passionately and with  
          support from distinguished scholars and jurists that it is  
          unconstitutional.  This bill cannot and does not seek to resolve  
          that constitutional debate.  As proposed to be amended, however,  
          it would authorize the UC and CSU to use non-Prop. 209 factors  
          in admissions decisions.  With respect to factors covered by  
          Prop. 209, the bill would give important guidance to the higher  
          education segments that these factors may be used to the extent  
          permitted by the U.S. Constitution, noting that it is  
          permissible to do so in order to obtain educational benefit  
          through the recruitment of a multi-factored, diverse student  
          body, pursuant to the decision of the U.S. Supreme Court in  
           Grutter v. Bollinger  (2003).  The American Civil Rights  
          Coalition (ACRC) filed opposition to the introduced version of  
          the bill, arguing that it violates Proposition 209 and exceeds  
          the constitutional guidelines established by the U.S. Supreme  
          Court in  Grutter  .  It is not known if the proposed amendments  
          remove ACRC's opposition.








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           SUMMARY  :  Authorizes the University of California (UC) and the  
          California State University (CSU) to consider specified factors  
          in student admissions.  Specifically,  this bill  :   

          1)Authorizes the UC and CSU to consider geographic origin,  
            household income along with other relevant factors in  
            undergraduate and graduate admissions.

          2)Authorizes UC and CSU to consider race, gender, ethnicity,  
            national origin, along with other relevant factors, in  
            undergraduate and graduate admissions to the extent permitted  
            by the Equal Protection Clause of the 14th Amendment to the  
            U.S. Constitution, including but not limited to the use of  
            such data to obtain education benefit through the recruitment  
            of a multi-factored, diverse student body as permitted by the  
            decision of the United States Supreme Court in Grutter v.  
            Bollinger (2003) 539 U.S. 306.

          3)Requires the CSU Board of Trustees and requests the UC Board  
            of Regents to report on the implementation of this bill's  
            provisions to the Legislature and Governor in writing, by  
            November 1, 2012, and specifies the information the report is  
            to include.

          4)States legislative intent that CSU and UC use existing  
            data-gathering methodologies to the greatest extent possible  
            in preparing the required report.

           EXISTING LAW  :

          1)Prohibits, pursuant to Proposition 209, approved by California  
            voters in 1996, the state from discriminating against, or  
            granting 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 (California Constitution, Article I,  
            Section 31).

          2)Provides, pursuant to the Equal Protection Clause of the 14th  
            Amendment, pursuant to Grutter v. Bollinger (2003), that a  
            university may engage in the "narrowly tailored use of race in  
            admissions decisions to further a compelling interest in  
            obtaining the educational benefits that flow from a diverse  
            student body."  (Grutter v. Bollinger (2003), 539 U.S. 306,  








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            343.)

          3)States legislative intent that, in determining the standards  
            and criteria for undergraduate and graduate admissions, the  
            governing boards of the UC and CSU do all the following:

             a)   Develop processes which strive to be fair and are easily  
               understandable.

             b)   Consider the use of criteria and procedures that allow  
               students to enroll who are otherwise fully eligible and  
               admissible but who have course deficiencies due to  
               circumstances beyond their control, and, when appropriate,  
               provide that the admission    requires the student to make  
               up the deficiency.

             c)   Consult broadly with California's diverse ethnic and  
               cultural communities.  (Education Code Section 66205(a).)

          4)States legislative intent that the UC and CSU seek to enroll a  
            student body that meets high academic standards and that  
            reflects the cultural, racial, geographic, economic, and  
            social diversity of California.  (Education Code Section  
            66205(b).)

           COMMENTS  :  This bill represents the laudable effort of the  
          author to address what statistics indicate is a significant  
          decrease in the percentage of minority students enrolled in the  
          UC and CSU systems since the November 2006 passage of  
          Proposition 209.  According to the author:

               Recent reports have shown that California high schools  
               are graduating more underrepresented students who are  
               eligible for the UC and CSU, however, they are not  
               enrolling (in the universities) at the same rate.  In  
               1995, before Proposition 209 took effect,  
               underrepresented minority students accounted for 38  
               percent of California high school graduates but only  
               21 percent of entering UC freshmen, a difference of 17  
               percent.  In 2004, they made up 45 percent of high  
               school graduates but had fallen to 18 percent of  
               incoming UC freshmen, a difference of 27 percent.   
               This gap will continue to widen as Latinos and African  
               Americans will account for about 70 percent of the  
               increase in California public high school graduates  








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               between 2000 and 2008.

           Background on current admissions policies  :  According to the  
          Higher Education Committee analysis of this bill, CSU generally  
          admits as a first-time freshman all students who are California  
          residents and graduate from high school, have a grade point  
          average above 3.0, and complete a 15-unit pattern of courses  
          with a grade of C or higher.  CSU authorizes impacted  
          undergraduate majors, programs, or campuses to use supplementary  
          admission criteria to screen applications.  Majors, programs or  
          campuses are designated as impacted when the number of  
          applications received during the initial filing period exceeds  
          the number of available spaces.  Each major, program, or campus  
          is authorized to determine its own supplementary admissions  
          criteria.

          UC uses an admissions policy known as Comprehensive Review,  
          adopted in November 2001.  Campuses use 14 selection criteria,  
          ten based upon academic achievement and four based on factors  
          such as special talents and accomplishments, creativity,  
          tenacity, community service, and leadership to make admissions  
          decisions.  Though all campuses use these criteria to evaluate  
          applications, the weight for each factor and the specific  
          evaluation process may differ from campus to campus.  UC states  
          that it does not consider race, ethnicity, or gender in the  
          admissions process.  In addition, UC has adopted new eligibility  
          criteria, which go into effect in Fall 2012, that would allow  
          more flexibility in meeting the admissions requirements.  

           Proposition 209 and the Equal Protection Clause.   In November  
          1996, California voters passed Proposition 209 which states:   
          "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."   
          (California Constitution, Article I, Section 31.)  Whatever the  
          purported virtues or offenses of Prop. 209, it must be read in  
          accordance with the Equal Protection Clause of the 14th  
          Amendment to the U.S. Constitution.  Although controversial to  
          some supporters of Prop. 209, the U.S. Supreme Court under  
          former Chief Justice Rehnquist has held that the Equal  
          Protection Clause does not prohibit a university from the  
          "narrowly tailored use of race in admissions decisions to  
          further a compelling interest in obtaining the educational  
          benefits that flow from a diverse student body."  (Grutter v.  








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          Bollinger (2003), 539 U.S. 306, 343.)  

           This Bill Would Authorize the Use of Factors That Are Not  
          Subject To Or Limited By Proposition 209.   Separately from any  
          controversy about the use of factors covered by Prop. 209, or  
          the interplay between Prop. 209 and the U.S. Constitution, this  
          bill also authorizes the higher education segments to consider  
          geographic origin and household income, along with other  
          relevant factors, in undergraduate and graduate admissions.   
          These factors are not limited by Prop. 209, and are therefore  
          not subject to the same controversy.
           
          Author's amendments:   In order to better express the intent of  
          the measure, the author appropriately proposes to amend the bill  
          to authorize the UC and CSU to consider race, gender, ethnicity,  
          national origin, along with other relevant factors, in  
          undergraduate and graduate admissions to the maximum extent  
          permitted by the Equal Protection Clause, including but not  
          limited to any use to obtain education benefit through the  
          recruitment of a multi-factored, diverse student body, as  
          permitted by the decision of the U.S. Supreme Court in Grutter.   
          In addition, the bill as proposed to be amended would clarify  
          that the UC and CSU may consider geographic origin, household  
          income and other relevant factors in their undergraduate and  
          graduate admissions.  

           ARGUMENTS IN OPPOSITION:   The American Civil Rights Coalition  
          (ACRC) is opposed to the introduced version of the bill because  
          it believes that version of the bill violates Section 31 of  
          Article I of the state Constitution, and exceeds the  
          constitutional guidelines established by the U.S. Supreme Court  
          in Grutter v. Bollinger.  The ACRC writes, "By permitting-and  
          even encouraging-officials at the UC and CSU to consider race  
          and gender in admissions, the bill flies in the face of Section  
          31's strict prohibition on race and gender classifications. . .  
          The notion that race can be 'considered' without granting  
          preference is disingenuous, a distinction without a difference."  
           It is not known if the bill as now proposed to be amended has  
          removed the ACRC's opposition to the measure.

           REGISTERED SUPPORT / OPPOSITION (As Introduced)  :   

           Support
           
          California Postsecondary Education Commission (CPEC)








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          National Association of Social Workers, California Chapter  
          (NASW-CA)
          American Civil Liberties Union
          California State Student Association

           Opposition 
           
          American Civil Rights Coalition
           
          Analysis Prepared by  :   Anthony Lew / JUD. / (916) 319-2334