BILL ANALYSIS Ó SENATE COMMITTEE ON ELECTIONS AND CONSTITUTIONAL AMENDMENTS Senator Norma J. Torres, Chair BILL NO: SCA 5 HEARING DATE: 8/20/13 AUTHOR: HERNANDEZ ANALYSIS BY: Frances Tibon Estoista AMENDED: 5/30/13 FISCAL: YES SUBJECT Public education: student recruitment and selection DESCRIPTION Existing 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. Existing law declares 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. This constitutional amendment proposes to place before the voters an amendment to the California Constitution that: 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. Deletes the University of California (UC) and the public school system from the definition of the "State" under Section 31 of Article 1, thereby repealing the application of the provisions of Proposition 209 to those entities. Makes a number of nonsubstantive technical changes. BACKGROUND The California Constitution, specifically Section 31 of Article I 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 the November 5, 1996 Statewide General Election in which the voters approved Proposition 209. COMMENTS 1. 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 UC and CSU campuses. Recent reports have shown that California high schools are graduating more underrepresented students who are UC and CSU eligible, but are not enrolling in those institutions at the same rate. In 1995, before Proposition 209 took effect, underrepresented minority students accounted for 38 percent of California high school graduates and 21 percent of entering UC freshmen, a difference of 17 percent. In 2009, they made up 52 percent of high school graduates but had fallen to 28 percent of incoming UC freshmen in 2010, a difference of 24 percent. This gap will only continue to widen as California becomes increasingly diverse. New eligibility requirements and admissions initiatives have only provided a "Band-Aid" approach to restore the numbers of some underrepresented student populations in the UC system to levels that existed before the passage of Proposition 209. However, these numbers still fall significantly short of the actual population of qualified Latino, African American, Pacific Islander, Filipino, and Native American high school graduates in the state. A recent study by the California Postsecondary Education Commission (CPEC) showed significant progress in college eligibility for underrepresented students coming out of high school, but this progress is not reflected in the numbers of these same groups being admitted into California's university system. Section 66205 of the California Education Code explicitly states, "That the University of California and the California State University, pursuant to Section 66201.5, seek to enroll SCA 5 (HERNANDEZ) Page 2 a student body that meets high academic standards and reflects the cultural, racial, geographic, economic, and social diversity of California." The intent of SCA 5 is to allow public universities to do just this by giving them all the tools necessary to ensure that they can enroll a student body that meets those standards and a student body that reflects these multiple forms of diversity in California. California's public university systems should have the discretion and authority to meet their goals set forth by the California Legislature. The increasing diversity of California, as well as recent U.S. Supreme Court decisions upholding university programs in other states where race is used as a factor, makes this the right time to ask voters to revisit Proposition 209 and ask whether it is really the best prescription for our state. SCA 5 amends Article I, Section 31 (Proposition 209) of the California Constitution to enable California's higher education institutions to find ways to make sure their campuses reflect the growing diversity of the state. Removing California's public university system from the provisions of Proposition 209 will reflect the state's commitment to educate our workforce for tomorrow's economy. 2. Related Supreme Court Decisions . 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. 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. SCA 5 (HERNANDEZ) Page 3 Grutter v. Bollinger . In June 2003, the U.S. 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." 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 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 U.S. 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. 3. Prior and Related Legislation . SB 185 (Hernandez, 2011) stated the Legislature's intent to authorize the CSU and the 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. But while I agree with the goal of this legislation, I must SCA 5 (HERNANDEZ) Page 4 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." AB 2047 (Hernandez, 2010) would have authorized 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 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." 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 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. 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 SCA 5 (HERNANDEZ) Page 5 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." PRIOR ACTION Senate Education Committee: 7-2 SCA 5 (HERNANDEZ) Page 6 POSITIONS Sponsor: Author Support: American Federation of State, County and Municipal Employees (AFSCME) American Association of University Women Association of California Healthcare Districts Bassett Teachers Association California Academy of Physician Assistants California Association for Nurse Practitioners California Black Health Network California Communities United Institute California Hospital Association California Medical Association California Nurses Association California Pan-Ethnic Health Network California Pharmacists Association California State Student Association California Teachers Association Community College League of California Equal Justice Society Equality California Greenlining Institute Health Access California Hispanic Association of Colleges and Universities Lawyers' Committee for Civil Rights of the San Francisco Bay Area Medical Oncology Association of Southern California, Inc. Western Center on Law and Poverty Oppose: American Civil Rights Coalition SCA 5 (HERNANDEZ) Page 7