BILL ANALYSIS                                                                                                                                                                                                    






                            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)                                                 
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             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)                                                 
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            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)                                                 
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             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)                                                 
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             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)                                                 
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                                       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)                                                 
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