BILL ANALYSIS Ó
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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