BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SCA 5 (Hernandez) - Postsecondary Education: Student Recruitment  
          & Selection
          
          Amended: May 30, 2013           Policy Vote: Elections: 4-1;  
          Education: 7-2
          Urgency: No                     Mandate: No
          Hearing Date: January 21, 2014                               
          Consultant: Jacqueline Wong-Hernandez                       
          
          This bill meets the criteria for referral to the Suspense File. 

          
          Bill Summary: SCA 5 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.

          Fiscal Impact: 
              One-time ballot printing and mailing costs of approximately  
              $198,000 - $264,000 (General Fund) depending on the number  
              of pages and based on an estimated cost per page of $66,000.  

              Cost pressure: If the constitutional amendment is passed by  
              voters, there will likely be pressure for the University of  
              California (UC) and California State University (CSU) to  
              change their admissions policies. Reviewing and revising  
              admissions policies could incur significant costs to the  
              segments. 

          Background: Section 31 of Article I of the California  
          Constitution 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 a  
          statewide General Election on November 5, 1996, in which the  
          voters approved Proposition 209, an initiative constitutional  
          amendment.

          Proposed Law: SCA 5 proposes to place before the voters an  








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          amendment to the California Constitution that: a) 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; and b) deletes the 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. 
          
          Related Legislation: SB 185 (Hernandez) 2001 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 Governor Brown, with the following message: 

              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  
              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) 2011 would have authorized the 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  








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          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 Governor Brown, 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 Governor Schwarzenegger, 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.

          Staff Comments: This measure will result in direct state General  
          Fund costs of approximately $198,000 - $264,000, to place a  
          constitutional amendment on the ballot. Passage of this  
          particular constitutional amendment may result in additional  
          indirect costs and/or savings to the state. In the long-term,  








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          that will depend upon the decisions of public education entities  
          to change current polices that may be in place in order to  
          uphold Section 31 of Article I of the California Constitution.  
          In the short term, while passage of the constitutional amendment  
          would not require the university systems to revise admissions  
          policies, it would create pressure (and cost pressure) to do so.