BILL ANALYSIS                                                                                                                                                                                                    






                         SENATE COMMITTEE ON EDUCATION
                                Carol Liu, Chair
                           2013-2014 Regular Session
                                        

          BILL NO:       SCA 5
          AUTHOR:        Hernandez
          AMENDED:       May 30, 2013
          FISCAL COMM:   Yes            HEARING DATE:  July 3, 2013
          URGENCY:       No             CONSULTANT:Kathleen Chavira

          NOTE  : This bill has been referred to the Committees on  
          Education and Elections and Constitutional Amendments. A  
          "do pass" motion should include referral to the Elections  
          and Constitutional Amendments Committee.  

          SUBJECT  :  Postseondary Education Student Recruitment and  
          Selection.
          
           SUMMARY  

          This bill proposes a constitutional amendment be placed  
          before the voters that deletes provisions implemented  
          through the enactment of Proposition 209 that prohibit the  
          State from granting preferential treatment to individuals  
          or groups on the basis of race, sex, color, ethnicity, or  
          national origin, in the operation of public education.

           BACKGROUND  

          Current law declares the Legislature's intent that, in  
          developing undergraduate and graduate admissions criteria,  
          the governing boards of the University of California (UC)  
          and the California State University (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  







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          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  
          November 5, 1996, in which the voters approved Proposition  
          209, an initiative constitutional amendment.

           ANALYSIS
           
           This bill  , proposes to place before the voters an amendment  
          to the California Constitution that:

          1)   Deletes the specific provisions implemented through  
               the enactment of Proposition 209 that prohibit the  
               State from granting preferential treatment to  
               individuals or groups on the basis of race, sex,  
               color, ethnicity, or national origin, in the operation  
               of public education.

          2)   Deletes the University of California (UC) and the  
               public school system from the definition of the  
               "State" under Section 31of Article 31, thereby  
               repealing the application of the provisions of  
               Proposition 209 to those entities. 

          3)   Makes a number of nonsubstantive technical changes.

           STAFF COMMENTS  

           1)   Need for the bill  . According to the author,  
               immediately following the November 1996 passage of  
               Proposition 209, there was a significant drop in the  
               percentage of enrolled minority students at both the  
               UC and the California State University (CSU). The  
               author is concerned that, in spite of new eligibility  
               requirements and admissions initiative which have  
               helped to restore the numbers of some underrepresented  
               students, 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. 

           2)   Constitutional amendment requirements  . As a proposed  
               Constitutional amendment, this measure would not go  








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               into effect unless approved by the majority of voters  
               at a statewide election. This proposal requires a 2/3  
               vote of each house in order to be submitted to the  
               voters. 
                
            3)   Related Supreme Court decisions  .

               a)        University of California v. Bakke. In 1978,  
                    the Supreme Court ruled that a state may  
                    constitutionally consider race as a factor in its  
                    university admissions to promote educational  
                    diversity, but only if considered alongside other  
                    factors and on a case-by-case basis. The Court  
                    ruled, however, that California's use of racial  
                    quotas in this case, did not meet those  
                    requirements and violated the Constitution's  
                    Equal Protection Clause. The Court also ruled  
                    that the state has a legitimate and substantial  
                    interest in eliminating the disabling effects of  
                    identified discrimination.

               b)        Gratz v. BolIinger. In 2003, the Supreme  
                    Court ruled 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. 

               c)        Grutter v. Bollinger.  In June 2003, the US  
                    Supreme Court ruled 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." 

               d)        Fisher vs. University of Texas at Austin et  
                    al. The University considers race as one of  
                    various factors in its undergraduate admissions  
                    process and was sued by an applicant who claimed  
                    such consideration violated the Equal Protection  








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                    Clause of the Fourteenth Amendment. The Supreme  
                    Court found that in determining whether the  
                    summary judgment in the University's favor was  
                    appropriate, a lower court had to determine  
                    whether the University had offered sufficient  
                    evidence to prove that its admissions program is  
                    narrowly tailored to obtain the educational  
                    benefits of diversity. In June 2013, the US  
                    Supreme Court ruled that because a lower court  
                    did not hold the University to the demanding  
                    burden of strict scrutiny articulated in Grutter  
                    and Regents of UC vs. Bakke, that court's  
                    decision to uphold the University's admission  
                    plan was incorrect. The lower court's decision  
                    was vacated and the decision was remanded for  
                    further proceedings. 

           4)   Prior legislation  . Similar legislation has previously  
               been considered by this committee:

               a)        SB 185 (Hernandez, 2011) stated the  
                    Legislature's intent to authorize the California  
                    State University (CSU) and 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 required the CSU  
                    and requested the UC to report on the  
                    implementation of these provisions to the  
                    Legislature and Governor by November 1, 2013, as  
                    specified.  SB 185 was vetoed by the Governor  
                    whose veto message read:

                    I wholeheartedly agree with the goal of this  
                    legislation. Proposition 209 should be  
                    interpreted to allow UC and CSU to consider race  
                    and other relevant factors in their admissions  
                    policies to the extent permitted under the  
                    Fourteenth Amendment of the United States  
                    Constitution. In fact, I have submitted briefs in  
                    my capacities as both Governor and Attorney  
                    General strongly urging the courts to adopt such  
                    an interpretation.








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                    But while I agree with the goal of this  
                    legislation, I must return the bill without my  
                    signature. Our constitutional system of  
                    separation of powers requires that the courts --  
                    not the Legislature -- determine the limits of  
                    Proposition 209. Indeed, there is already a court  
                    case pending in the 9th Circuit against the State  
                    and the UC on the same issues addressed in this  
                    bill. Signing this bill is unlikely to impact how  
                    Proposition 209 is ultimately interpreted by the  
                    courts; it will just encourage the 209 advocates  
                    to file more costly and confusing lawsuits.
                    
               b)        AB 2047 (Hernandez, 2010) would have  
                    authorized the California State University (CSU)  
                    and the University of California (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  
                    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 addressed  
                    through a constitutional change of those current  
                    restrictions.
                    
               c)        ACA 23 (Hernandez, 2009) would have exempted  
                    public education institutions from the  
                    constitutional prohibitions established by  
                    Proposition 209 for the purposes of implementing  
                    student recruitment and selection programs at  








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                    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. 

               d)        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 Association of University Women
          Association of California Healthcare Districts
          California Association for Nurse Practitioners
          California Pharmacists Association
          California Primary Care Association
          California State Student Association 
          California Teachers Association
          Community College League of California
          Western Center on Law and Poverty

           OPPOSITION

           American Civil Rights Coalition










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