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 23, 2014
Consultant: Jacqueline Wong-Hernandez
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.