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 SCA 5 (Hernandez) Page 1 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 SCA 5 (Hernandez) Page 2 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, SCA 5 (Hernandez) Page 3 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.