BILL ANALYSIS AB 2047 Page 1 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. AB 2047 Page 2 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, AB 2047 Page 3 343.) 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 AB 2047 Page 4 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. AB 2047 Page 5 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) AB 2047 Page 6 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