Senate Constitutional Amendment No. 5

Introduced by Senator Hernandez

December 3, 2012

Senate Constitutional Amendment No. 5—A resolution to propose to the people of the State of California an amendment to the Constitution of the State, by amending Section 31 of Article I thereof, relating to public postsecondary education.

LEGISLATIVE COUNSEL’S DIGEST

SCA 5, as introduced, Hernandez. Public postsecondary education: student recruitment and selection.

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 measure would provide that the above prohibition does not prevent state institutions of higher education, as defined, from implementing student recruitment and selection programs permissible under the equal protection clause of the 14th Amendment to the United States Constitution.

Vote: ²⁄₃. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

Resolved by the Senate, the Assembly concurring, That the
Legislature of the State of California at its 2013-14 Regular
Session commencing on the third day of December 2012,
two-thirds of the membership of each house concurring, hereby
proposes to the people of the State of California, that the
Constitution of the State be amended as follows:

  

That Section 31 of Article I thereof is amended to read:

SEC. 31.  

(a) 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.

begin insert

(b) Notwithstanding subdivision (a), this section does not prevent
state institutions of higher education from implementing student
recruitment and selection programs that are permissible under
the equal protection clause of the Fourteenth Amendment to the
United States Constitution.

end insert begin delete

(b)

end delete

begin insert (c) end insert  This section shall apply only to action taken after the
section’s effective date.

begin delete

(c) Nothing in this

end delete

begin insert (d) end insert begin insert   end insert begin insert This end insert section shall begin insert not end insert be interpreted as prohibiting bona fide
qualifications based on sex which are reasonably necessary to the
normal operation of public employment, public education, or public
contracting.

begin delete

(d) Nothing in this

end delete

begin insert (e) end insert begin insert   end insert begin insert This end insert section shall begin insert not end insert be interpreted as invalidating any
court order or consent decree begin delete which end delete begin insert that end insert is in force as of the
effective date of this section.

begin delete

(e) Nothing in this

end delete

begin insert (f) end insert begin insert   end insert begin insert This end insert section shall begin insert not end insert be interpreted as prohibiting action
which must be taken to establish or maintain eligibility for any
federal program, begin delete where end delete begin insert if end insert ineligibility would result in a loss of
federal funds to the State.

begin delete

(f)

end delete

begin insert (g) end insert begin insert   end insert begin insert (1) end insert  For the purposes of this section, “State” shall include,
but not necessarily be limited to, the State itself, any city, county,
city and county, public university system, including the University
of California, community college district, school district, special
district, or any other political subdivision or governmental
instrumentality of or within the State.

begin insert

(2) For the purposes of this section, “state institutions of higher
education” shall mean: (A) the California Community Colleges;
(B) the California State University, and each campus, branch, and
function thereof; and (C) each campus, branch, and function of
the University of California.

end insert begin delete

(g)

end delete

begin insert (h) end insert  The remedies available for violations of this section shall
be the same, regardless of the injured party’s race, sex, color,
ethnicity, or national origin, as are otherwise available for
violations of then-existing California antidiscrimination law.

begin delete

(h)

end delete

begin insert (i) end insert  This section shall be self-executing. If any part or parts of
this section are found to be in conflict with federal law or the
United States Constitution, the section shall be implemented to
the maximum extent that federal law and the United States
Constitution permit. Any provision held invalid shall be severable
from the remaining portions of this section.