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
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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.
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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
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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
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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
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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
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