BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: SB 185
AUTHOR: Hernandez
AMENDED: April 4, 2011
FISCAL COMM: Yes HEARING DATE: April 27, 2011
URGENCY: No CONSULTANT:Kathleen Chavira
SUBJECT : Public postsecondary education admissions
policies.
SUMMARY
This bill requires the California State University (CSU)
and authorizes the University of California (UC) to
consider race, gender, ethnicity and national origin,
geographic origin, and household income, along with other
relevant factors, in undergraduate and graduate admissions,
as specified, and requires the CSU to report on the
implementation of these provisions to the Legislature and
Governor by November 1, 2012, as specified.
BACKGROUND
Current law declares the Legislature's intent that, in
developing undergraduate and graduate admissions criteria,
the governing boards of the UC and the CSU develop
processes that strive to be fair and easily understandable,
and consult broadly with California's diverse ethnic and
cultural communities. Current law authorizes the intent of
the Legislature that the UC and the CSU seek to enroll a
student body that meets high academic standards and
reflects the cultural, racial, geographic, economic, and
social diversity of California.
(Education Code § 66205)
Section 31 of Article I of the California Constitution
prohibits 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. This section of the
Constitution was adopted at a statewide General Election on
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November 5, 1996, in which the voters approved Proposition
209, an initiative constitutional amendment.
ANALYSIS
This bill :
1) Requires the CSU and authorizes the UC to consider a
variety of relevant factors in undergraduate and
graduate admissions decisions, so long as no
preference is given, including:
a) Race.
b) Gender.
c) Ethnicity.
d) National Origin.
e) Geographic origin.
f) Household income.
2) Authorizes consideration of these factors to take
place when a university, campus, college, school or
program is attempting to obtain education benefit
through the recruitment of a multifactored, diverse,
student body.
3) Declares the Legislature's intent that these
provisions be implemented to the maximum extent
permitted by the decision of the US Supreme Court in
Grutter v. Bollinger and in conformity with specified
provisions of the United States Constitution.
4) Requires the CSU Trustees to report in writing to the
Legislature and the Governor by November 1, 2012, on
the implementation of these provisions and
additionally:
a) Requires the report to include
information relative to the number of students
admitted disaggregated by race, gender,
ethnicity, national origin, geographic origin and
household income compared to the prior two years
of admission.
b) Declares the Legislature's intent
that the CSU use existing data-gathering
methodologies to the greatest extent possible in
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preparing the report.
STAFF COMMENTS
1) Need for the bill . In its most recent eligibility
study (December 2008), the California Postsecondary
Education Commission (CPEC) reports that the UC
eligibility rate for Whites decreased from 16.2
percent in 2003 to 14.6 percent in 2007. The rate for
Asians decreased from 31.4 percent to 29.4 percent,
while the rates for Latinos and Blacks were nearly
unchanged: 6.5 percent in 2003 and 6.9 percent in 2007
for Latinos; 6.2 percent in 2003 and 6.3 percent in
2007 for Blacks.
For CSU, the rate for Blacks, Whites and Latinos
increased from 2003 to 2007. For Blacks, the rate
increased from 18.6 percent in 2003 to 24.0 percent in
2007; Latinos from 16.0 percent to 22.5 percent; and
Whites from 34.3 percent to 37.1 percent. The CPEC
notes that, while eligibility rates for Black and
Latino high school graduates have improved in recent
years, particularly for CSU, there are still large
differences between racial/ethnic groups.
The author is concerned that, since the passage of
Proposition 209, the proportion of underrepresented
students eligible for UC and CSU has not kept pace
with the proportion of the high school graduating
class that they now represent. According to the
author, this bill addresses this significant drop in
the percentage of enrolled minority students at both
UC and CSU, which was an unintended consequence of the
passage of Proposition 209 in 1996.
2) Related Supreme Court decisions . This bill declares
legislative intent that its provisions be implemented
to the maximum extent permitted by the decisions of
the US Supreme Court in Grutter v. Bollinger. In June
2003, the US Supreme Court ruled in Grutter v.
Bollinger (2003) 539 U.WW. 306, that the Equal
Protection Clause does not prohibit the University of
Michigan Law School's "narrowly tailored use of race
in admissions decision to further a compelling
interest in obtaining the educational benefits that
flow from a diverse student body."
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The Supreme Court also ruled in Gratz v. Bollinger
(2003) that the
University of Michigan's undergraduate admissions policy,
which
automatically distributed one fifth of the points needed to
guarantee admission
to every single "underrepresented minority" applicant, was
not narrowly tailored to achieve the University's asserted
interest in diversity and did
violate the Equal Protection Clause.
3) Inconsistent with prior versions . Prior versions of
this bill which have been favorably considered by this
committee and the Legislature have "authorized" rather
than "required" the CSU to consider the factors
outlined in the bill in their admissions practices.
Requiring, rather than simply authorizing is a
significant change and may have broader implications
than intended. Does statute that requires the
consideration of race in admissions jeopardize the
ability to implement these provisions in a manner that
ensures compliance with the constitutional provisions
established by Proposition 209, or the "narrowly
tailored use of race in admissions decisions" as
permitted by the related US Supreme Court decision?
At the same time, statutorily authorizing the
consideration of these factors does provide greater
clarity to the public segments of the Legislature's
support of the use of these factors and the segments'
discretion and legal authority to appropriately
consider these factors in their admissions practices.
Staff recommends the bill be amended to "authorize"
rather than "require" the CSU to take these actions.
In addition, because of the UC's constitutional
autonomy, this bill appropriately requests their
compliance with its admissions practice provisions.
Since the UC generally attempts to comply with the
requests made by the Legislature, it would seem
appropriate to request them to comply with the
reporting activities outlined in the bill as well.
Staff further recommends the bill be amended to
request the UC to comply with the bill's reporting
provisions.
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4) Current admissions policies . The CSU system generally
admits all students who are California residents that
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 for admission as a
first-time freshman. The 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.
The University of California 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. The UC
recently adopted new eligibility criteria that goes
into effect in Fall 2012 that may allow more
flexibility in meeting admissions requirements in
order to be eligible to apply for admission.
5) Prior legislation .
a) AB 2047 (Hernandez, 2010) would have
authorized the CSU and the UC to consider
geographic origin, household income, race,
gender, ethnicity and national origin along with
other relevant factors, in undergraduate and
graduate admissions, and required and requested
the CSU and UC, respectively, to report on the
implementation of these provisions to the
Legislature and Governor by November 1, 2012, as
specified. AB 2047 was ultimately vetoed by the
Governor, whose veto message read, in pertinent
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part:
The UC and CSU systems are aware of and
supportive of the important goal of student
diversity and make every attempt through its
comprehensive review admissions process. That
process considers many of the factors contained
in this legislation, but do so within current
constitutional restrictions. The intent of this
bill would be more appropriately addresse through
a constitutional change of those current
restrictions.
b) ACA 23 (Hernandez, 2009) exempts public
education institutions from the constitutional
prohibitions established by Proposition 209 for
the purposes of implementing student recruitment
and selection programs at public postsecondary
education institutions. The proposed
constitutional amendment passed the Assembly
Higher Education Committee by a vote of 6-1 in
July 2009 and was referred to the Assembly
Judiciary Committee, but was never heard.
c) AB 2387 (Firebaugh, 2004) would have
authorized the UC and the CSU to consider
culture, race, gender, ethnicity, national
origin, geographic origin, and household income,
along with other relevant factors, as specified,
in undergraduate and graduate admissions, so long
as no preference is given. AB 2387 was vetoed by
the Governor whose veto message read, in
pertinent part:
The practical implementation of the provisions of
this bill would be contrary to the expressed will
of the people who voted to approve Proposition
209 in 1996. Therefore, since the provisions of
this bill would likely be ruled as
unconstitutional, they would be more
appropriately addressed through a change to the
State Constitution.
SUPPORT
American Federation of State, County and Municipal
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Employees
OPPOSITION
None received.