BILL ANALYSIS
AB 2047
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Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2047 (Hernandez) - As Introduced: February 17, 2010
As Proposed to Be Amended
SUBJECT : PUBLIC POSTSECONDARY EDUCATION: ADMISSIONS POLICIES
KEY ISSUE : SHOULD THE UC AND CSU BE PERMITTED TO CONSIDER
RELEVANT DATA IN UNDERGRADUATE AND GRADUATE ADMISSIONS TO THE
EXTENT PERMITTED BY THE EQUAL PROTECTION CLAUSE OF THE 14TH
AMENDMENT?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
According to the author, recent reports have shown that
California high schools are graduating more underrepresented
students who, despite being eligible for admission, are not
enrolling in the UC and CSU in similar proportions. This bill
represents the laudable effort of the author to address this
significant decrease, which the author's supporting data
indicates is attributable to the passage of Proposition 209.
While Prop. 209 is ardently defended by its supporters as the
proper policy, others argue just as passionately and with
support from distinguished scholars and jurists that it is
unconstitutional. This bill cannot and does not seek to resolve
that constitutional debate. As proposed to be amended, however,
it would authorize the UC and CSU to use non-Prop. 209 factors
in admissions decisions. With respect to factors covered by
Prop. 209, the bill would give important guidance to the higher
education segments that these factors may be used to the extent
permitted by the U.S. Constitution, noting that it is
permissible to do so in order to obtain educational benefit
through the recruitment of a multi-factored, diverse student
body, pursuant to the decision of the U.S. Supreme Court in
Grutter v. Bollinger (2003). The American Civil Rights
Coalition (ACRC) filed opposition to the introduced version of
the bill, arguing that it violates Proposition 209 and exceeds
the constitutional guidelines established by the U.S. Supreme
Court in Grutter . It is not known if the proposed amendments
remove ACRC's opposition.
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SUMMARY : Authorizes the University of California (UC) and the
California State University (CSU) to consider specified factors
in student admissions. Specifically, this bill :
1)Authorizes the UC and CSU to consider geographic origin,
household income along with other relevant factors in
undergraduate and graduate admissions.
2)Authorizes UC and CSU to consider race, gender, ethnicity,
national origin, along with other relevant factors, in
undergraduate and graduate admissions to the extent permitted
by the Equal Protection Clause of the 14th Amendment to the
U.S. Constitution, including but not limited to the use of
such data to obtain education benefit through the recruitment
of a multi-factored, diverse student body as permitted by the
decision of the United States Supreme Court in Grutter v.
Bollinger (2003) 539 U.S. 306.
3)Requires the CSU Board of Trustees and requests the UC Board
of Regents to report on the implementation of this bill's
provisions to the Legislature and Governor in writing, by
November 1, 2012, and specifies the information the report is
to include.
4)States legislative intent that CSU and UC use existing
data-gathering methodologies to the greatest extent possible
in preparing the required report.
EXISTING LAW :
1)Prohibits, pursuant to Proposition 209, approved by California
voters in 1996, 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 (California Constitution, Article I,
Section 31).
2)Provides, pursuant to the Equal Protection Clause of the 14th
Amendment, pursuant to Grutter v. Bollinger (2003), that a
university may engage in the "narrowly tailored use of race in
admissions decisions to further a compelling interest in
obtaining the educational benefits that flow from a diverse
student body." (Grutter v. Bollinger (2003), 539 U.S. 306,
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343.)
3)States legislative intent that, in determining the standards
and criteria for undergraduate and graduate admissions, the
governing boards of the UC and CSU do all the following:
a) Develop processes which strive to be fair and are easily
understandable.
b) Consider the use of criteria and procedures that allow
students to enroll who are otherwise fully eligible and
admissible but who have course deficiencies due to
circumstances beyond their control, and, when appropriate,
provide that the admission requires the student to make
up the deficiency.
c) Consult broadly with California's diverse ethnic and
cultural communities. (Education Code Section 66205(a).)
4)States legislative intent that the UC and CSU seek to enroll a
student body that meets high academic standards and that
reflects the cultural, racial, geographic, economic, and
social diversity of California. (Education Code Section
66205(b).)
COMMENTS : This bill represents the laudable effort of the
author to address what statistics indicate is a significant
decrease in the percentage of minority students enrolled in the
UC and CSU systems since the November 2006 passage of
Proposition 209. According to the author:
Recent reports have shown that California high schools
are graduating more underrepresented students who are
eligible for the UC and CSU, however, they are not
enrolling (in the universities) at the same rate. In
1995, before Proposition 209 took effect,
underrepresented minority students accounted for 38
percent of California high school graduates but only
21 percent of entering UC freshmen, a difference of 17
percent. In 2004, they made up 45 percent of high
school graduates but had fallen to 18 percent of
incoming UC freshmen, a difference of 27 percent.
This gap will continue to widen as Latinos and African
Americans will account for about 70 percent of the
increase in California public high school graduates
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between 2000 and 2008.
Background on current admissions policies : According to the
Higher Education Committee analysis of this bill, CSU generally
admits as a first-time freshman all students who are California
residents and graduate from high school, have a grade point
average above 3.0, and complete a 15-unit pattern of courses
with a grade of C or higher. CSU authorizes impacted
undergraduate majors, programs, or campuses to use supplementary
admission criteria to screen applications. Majors, programs or
campuses are designated as impacted when the number of
applications received during the initial filing period exceeds
the number of available spaces. Each major, program, or campus
is authorized to determine its own supplementary admissions
criteria.
UC uses an admissions policy known as Comprehensive Review,
adopted in November 2001. Campuses use 14 selection criteria,
ten based upon academic achievement and four based on factors
such as special talents and accomplishments, creativity,
tenacity, community service, and leadership to make admissions
decisions. Though all campuses use these criteria to evaluate
applications, the weight for each factor and the specific
evaluation process may differ from campus to campus. UC states
that it does not consider race, ethnicity, or gender in the
admissions process. In addition, UC has adopted new eligibility
criteria, which go into effect in Fall 2012, that would allow
more flexibility in meeting the admissions requirements.
Proposition 209 and the Equal Protection Clause. In November
1996, California voters passed Proposition 209 which states:
"The State shall not discriminate against, or grant 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."
(California Constitution, Article I, Section 31.) Whatever the
purported virtues or offenses of Prop. 209, it must be read in
accordance with the Equal Protection Clause of the 14th
Amendment to the U.S. Constitution. Although controversial to
some supporters of Prop. 209, the U.S. Supreme Court under
former Chief Justice Rehnquist has held that the Equal
Protection Clause does not prohibit a university from the
"narrowly tailored use of race in admissions decisions to
further a compelling interest in obtaining the educational
benefits that flow from a diverse student body." (Grutter v.
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Bollinger (2003), 539 U.S. 306, 343.)
This Bill Would Authorize the Use of Factors That Are Not
Subject To Or Limited By Proposition 209. Separately from any
controversy about the use of factors covered by Prop. 209, or
the interplay between Prop. 209 and the U.S. Constitution, this
bill also authorizes the higher education segments to consider
geographic origin and household income, along with other
relevant factors, in undergraduate and graduate admissions.
These factors are not limited by Prop. 209, and are therefore
not subject to the same controversy.
Author's amendments: In order to better express the intent of
the measure, the author appropriately proposes to amend the bill
to authorize the UC and CSU to consider race, gender, ethnicity,
national origin, along with other relevant factors, in
undergraduate and graduate admissions to the maximum extent
permitted by the Equal Protection Clause, including but not
limited to any use to obtain education benefit through the
recruitment of a multi-factored, diverse student body, as
permitted by the decision of the U.S. Supreme Court in Grutter.
In addition, the bill as proposed to be amended would clarify
that the UC and CSU may consider geographic origin, household
income and other relevant factors in their undergraduate and
graduate admissions.
ARGUMENTS IN OPPOSITION: The American Civil Rights Coalition
(ACRC) is opposed to the introduced version of the bill because
it believes that version of the bill violates Section 31 of
Article I of the state Constitution, and exceeds the
constitutional guidelines established by the U.S. Supreme Court
in Grutter v. Bollinger. The ACRC writes, "By permitting-and
even encouraging-officials at the UC and CSU to consider race
and gender in admissions, the bill flies in the face of Section
31's strict prohibition on race and gender classifications. . .
The notion that race can be 'considered' without granting
preference is disingenuous, a distinction without a difference."
It is not known if the bill as now proposed to be amended has
removed the ACRC's opposition to the measure.
REGISTERED SUPPORT / OPPOSITION (As Introduced) :
Support
California Postsecondary Education Commission (CPEC)
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National Association of Social Workers, California Chapter
(NASW-CA)
American Civil Liberties Union
California State Student Association
Opposition
American Civil Rights Coalition
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334