BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2646 (Ting)
As Amended June 12, 2014
Hearing Date: June 24, 2014
Fiscal: No
Urgency: No
RD
SUBJECT
Civil Rights: Structural Equal Protection
DESCRIPTION
This bill would prohibit a statute, ordinance, or other state or
local rule, regulation, or enactment from denying a minority
group "structural equal protection" of the law by altering,
restructuring, or reordering the policy decisionmaking process
in a manner that burdens the ability of members of the minority
group to effect the enactment of future legislation, solely with
respect to a matter that inures primarily to the benefit of, or
is primarily of interest to, one or more minority groups. This
bill would provide that a statute, ordinance, or other state or
local rule, regulation, or enactment shall be determined valid
in an action brought pursuant to this bill, only upon a showing
by the government that the burden imposed by the statute,
ordinance, or other state or local rule, regulation or enactment
satisfies both of the following criteria: (1) the burden is
necessary to serve a compelling government interest; and (2) the
burden is no greater than necessary to serve the compelling
government interest.
This bill would contain various legislative findings and
declarations with respect to case law, "the Hunter/Seattle
doctrine," and "structural equal protection."
BACKGROUND
The Equal Protection Clause of the 14th Amendment of the United
States Constitution provides that no state shall deny to any
(more)
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person within its jurisdiction "the equal protection of the
laws." The clause requires that persons under like circumstances
be given equal protection and security in the enjoyment of
personal and civil rights, the acquisition and enjoyment of
property, the enforcement of contracts, and the prevention and
redress of wrongs, and that they be subject to similar taxes and
penalties. At the same time, federal equal protection case law
allows discrimination or preferential treatment when a court has
determined that it is justified by a compelling state interest,
and the discrimination or preferential treatment is narrowly
tailored to address that interest. (8 Witkin Sum. Cal. Law
Const. Law. Secs. 967 (citing Coral Construction Inc. v. City of
San Francisco (2010) 50 Cal.4th 315, 327) and 695.)
Of particular importance to this bill are three United States
Supreme Court cases covering a span of approximately 45 years.
The first of these is Hunter v. Erickson (1969) 393 U.S. 385,
wherein the Supreme Court declared unconstitutional an Akron,
Ohio initiative that was adopted by referendum to repeal open
housing laws and require voter approval of any such future laws
regulating real estate transactions "on the basis of race,
color, religion, national origin or ancestry" by a majority of
electors on the question at a regular or general election before
any such ordinance would be effective. (Id. at 389.) The Court
found that this was an "explicitly racial classification
treating racial housing matters differently than other racial
and housing matters" (as blacks, much more than whites, were
obviously harmed by creating obstacles to enactment of open
housing laws), and thereby invalidated the ordinance under the
14th Amendment. (Id.) The second of these is the case of
Washington v. Seattle School District No. 1 (1982) 458 U.S. 457,
where the Court, in the same vein, invalidated a Washington
initiative that provided that no school board could require any
student to attend a school other than the school geographically
nearest or next nearest the student's residence. The challenged
initiative thereby precluded students from being assigned for
the purposes of desegregation, and by purposefully frustrating
desegregation efforts, the initiative was held to be in
violation of the 14th Amendment. Even though the law nowhere
mentioned race and applied it in the same way to all races,
because "it uses the racial nature of an issue to define the
governmental decision-making structure and thus imposes
substantial and unique burdens on racial minorities," the Court
found the ordinance to be a type of racial classification. (Id.
at 470.) Like in Hunter, the law "remove[d] the authority to
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address a racial problem - and only a racial problem -from the
existing decision making body, in such a way as to burden
minority interest." (Id. at 474.) In both of these cases, and
others, the Court saw the initiatives as being motivated by
impermissible discriminatory purposes and therefore found denial
of equal protection.
As a result of the Hunter/Seattle cases, courts have come to
recognize a "political structure doctrine" (also referred to as
"political structure equal protection"). "The 'political
structure' doctrine that emerges from these decisions is perhaps
best summarized in the Seattle majority's statement that 'the
14th Amendment ? reaches 'a political structure that treats all
individuals as equals,' ? yet more subtly distorts governmental
processes in such a way as to place special burdens on the
ability of minority groups to achieve beneficial legislation.'"
(Coral Construction Inc. v. City of San Francisco (2010) 50
Cal.4th 315, 329.) As framed by some constitutional law
scholars, a person challenging a law under this doctrine (what
these scholars call the Hunter doctrine) must satisfy a two part
test: (1) she must show that the law in question is "racial" or
"racial in character" in that it singles out for special
treatment, issues that are particularly associated with racial
minority interests; and (2) she must show that the law imposes
an unfair political process burden by entrenching resolution of
such "racial matters" in a political process where minorities
are less able to succeed. Strict scrutiny is only triggered if
she (the challenger) satisfies both parts of this test.
(Vikram Amar and Evan Caminker, the Hunter Doctrine and
Proposition 209: A Reply to Thomas Wood (1997) 24 Hastings
Const. Law Quarterly 1010, p. 1003.)
This doctrine has become a central basis for challenging
anti-affirmative action initiatives in recent cases before the
U.S. and the California supreme courts. One such case, and the
third case that is of particular importance to this bill, is the
case of Schuette v. Coalition to Defend Affirmative Action
(2014) 134 S.Ct. 1623 wherein a 2006 Michigan state
constitutional amendment prohibiting state universities from
considering race as part of its admissions process was
challenged under the Equal Protection Clause, based upon the
political structure doctrine. In Schuette, a plurality opinion
of the U.S. Supreme Court held that the state amendment (which
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is not entirely unlike California's Proposition 209<1>) does not
violate the Constitution's Equal Protection Clause. Justice
Sotomayor in a dissenting opinion, commented that the Court
disregarded stare decisis in disregarding the precedents of
Hunter and Seattle School District No. 1.
Likewise, the California Supreme Court has held that the
political structure doctrine does not invalidate state laws that
broadly prohibit discrimination and preferences based on race
and gender-including Proposition 209, which was challenged and
upheld by the court under the political structure doctrine in
the case of Coral Construction Inc. v. City of San Francisco
(2010) 50 Cal. 4th 315. In the case of Coral Construction Inc.
v. City of San Francisco, "the City argue[d] this doctrine
straightforwardly invalidates [Proposition 209] because that
provision uses the racial (or gender-based) nature of an issue
(i.e., preferences) to structure governmental decisionmaking, in
the sense that groups that seek race- or gender-based
preferences in public contracting, employment and education must
first overcome the obstacle of amending the state Constitution,
while groups that seek preferences on other bases (e.g.,
disability or veteran status) need not." The Coral court found
that "although superficially appealing, the City's argument is
not ultimately persuasive."
This bill seeks to generally prohibit a statute, ordinance, or
other state or local rule, regulation, or enactment from denying
a minority group "structural equal protection" of the law by
altering, restructuring, or reordering the policy decisionmaking
process in a manner that burdens the ability of members of the
minority group to effect the enactment of future legislation,
solely with respect to a matter that inures primarily to the
benefit of, or is primarily of interest to, one or more minority
groups. This bill includes various findings and declarations
with respect to such case law and the political structure
doctrine (through reference to the term "structural equal
protection").
---------------------------
<1> In 1996, Proposition 209 was adopted by California voters,
adding Article I Section 31 to the state Constitution to
prohibit affirmative action by public entities. The measure
provides that "[t]he 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."
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CHANGES TO EXISTING LAW
Existing federal law , the 14th Amendment to the United States
Constitution, provides that all persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United
States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person
within its jurisdiction the equal protection of the laws. (U.S.
Const., 14th Amend., Sec. 1.)
Existing law , the California Constitution, provides that a
person may not be deprived of life, liberty, or property without
due process of law or denied equal protection of the laws;
provided, that nothing contained herein or elsewhere in this
Constitution imposes upon the State of California or any public
entity, board, or official any obligations or responsibilities
which exceed those imposed by the Equal Protection Clause of the
14th Amendment to the United States Constitution with respect to
the use of pupil school assignment or pupil transportation.
(Cal. Const., art. I, Sec. 7.)
Existing law , 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, except as
specified. (Cal. Const., art. I, Sec. 31.)
Existing case law holds that the 14th Amendment does not
tolerate "a political structure that treats all individuals as
equals, yet more subtly distorts governmental processes in such
a way as to place special burdens on the ability of minority
groups to achieve beneficial legislation." (Washington v.
Seattle School Dist. No. 1 (1982) 458 U. S. 457, 467 (internal
quotations omitted).) Such restructuring, "is no more
permissible than denying [the minority] the [right to] vote, on
an equal basis with others." (Hunter v. Erickson (1969) 393 U.
S. 385, 391.)
Existing case law provides that Section 31 of the California
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Constitution "prohibits race- and gender-conscious programs the
federal equal protection clause permits but does not require.
As we explained in Hi-Voltage . . . '[e]qual protection allows
discrimination and preferential treatment whenever a court
determines they are justified by a compelling state interest and
are narrowly tailored to address an identified remedial need.'
In contrast, "section 31 categorically prohibits discrimination
and preferential treatment. Its literal language admits no
'compelling state interest' exception [and] we find nothing to
suggest the voters intended to include one sub silentio.'
Section 31 poses no obstacle, however, to race- or
gender-conscious measures required by federal law or the federal
Constitution. This is the inescapable effect of the supremacy
clause (U.S. Const., art. VI, cl. 2), which section 31
implicitly acknowledges in a savings clause." (Coral
Construction Inc. v. City of San Francisco (2010) 50 Cal.4th
315, 327 (internal citations omitted).)
Existing case law holds that Section 31 does not violate the
political structure doctrine. (Id. at 329-330, holding that
"[n]othing in Hunter [ . . . ], or Seattle supports extending
the political structure doctrine to protect race- or
gender-based preferences that equal protection does not
require.")
Existing case law provides that "'[a]s a matter of
'conventional' equal protection analysis, there is simply no
doubt that [section 31] is constitutional.' The clause provides
that '[n]o state shall ? deny to any person within its
jurisdiction the equal protection of the laws.' (U.S. Const.,
14th Amend., Sec. 1.) 'A core purpose' of the clause is to 'do
away with all governmentally imposed discrimination based on
race' [ . . . ], thus ultimately helping to create 'a political
system in which race no longer matters' [ . . . ]. To further
this goal, the clause renders racial classifications
presumptively invalid, regardless of purported motivation [ . .
. ] and tolerates them only when narrowly tailored to serve
compelling governmental interests [ . . . ] . Section 31 is
consistent with equal protection, under this analysis, because
'[a] law that prohibits the State from classifying individuals
by race or gender a fortiori does not classify individuals by
race or gender' [ . . . ] and because the federal Constitution
does not oblige the state to permit racial classifications the
federal Constitution itself does not require. 'That the
Constitution permits the rare race-based or gender-based
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preference hardly implies that the state cannot ban them
altogether.'" (Id. at 327-328 (internal citations omitted).)
This bill would provide that a statute, ordinance, or other
state or local rule, regulation, or enactment shall not deny a
minority group structural equal protection of the law by
altering, restructuring, or reordering the policy decisionmaking
process in a manner that burdens the ability of members of the
minority group to effect the enactment of future legislation,
solely with respect to a matter that inures primarily to the
benefit of, or is primarily of interest to, one or more minority
groups. This bill would authorize a member of a minority group
to bring a civil action challenging the validity of a statute,
ordinance, or other state or local rule, regulation, or
enactment, pursuant to this provision.
This bill would provide that a statute, ordinance, or other
state or local rule, regulation, or enactment shall be
determined valid in an action brought pursuant to this section,
only upon a showing by the government that the burden imposed by
the statute, ordinance, or other state or local rule, regulation
or enactment satisfies both of the following criteria:
(1) the burden is necessary to serve a compelling government
interest; and
(2) the burden is no greater than necessary to serve the
compelling government interest.
This bill would define "minority group" to mean a group of
persons who share in common any race, ethnicity, nationality, or
sexual orientation.
This bill would include various findings and declarations,
including, among others:
The U.S. Supreme Court has interpreted the Equal Protection
Clause as disfavoring and subjecting to "strict scrutiny"
state and local laws that (1) target a suspect classification
of persons, (2) restrict a fundamental right, or (3) alter the
political policymaking process with respect to an issue of
primary concern to a minority group or groups. This last
doctrine is commonly referred to as "structural equal
protection."
The doctrine of structural equal protection was established
primarily through two United States Supreme Court decisions,
Hunter v. Erickson (1969) 393 U.S. 385, and Washington v.
Seattle School District No. 1 (1982) 458 U.S. 457. As a
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result, this doctrine has also been referred to as the
"Hunter/Seattle" doctrine. In the recent case of Schuette v.
BAMN, et. al. (2014) 134 S. Ct. 1623, the Supreme Court has
further interpreted the structural equal protection doctrine,
although the implications of this new interpretation are not
yet clear.
The Legislature believes that Section 7 of Article I of the
California Constitution provides broader protection of
individual liberties and rights than the Equal Protection
Clause of the 14th Amendment of the United States
Constitution, and these broader protections include the
structural equal protection doctrine, as interpreted prior to
Schuette v. BAMN.
Independent of the guarantees afforded by the California
Constitution, the Legislature believes that the Hunter/Seattle
doctrine provides a prudent and salutary rule for statutory
protection against discriminatory statutes, ordinances, or
other state or local rules, regulations, or enactments.
COMMENT
1. Stated need for the bill
According to the author:
The equal protection clause of the California constitution has
been interpreted to protect Californians against
discriminatory state action. This is the classic
interpretation of equal protection and should be safeguarded.
However, there are numerous forms of discrimination minorities
still face regarding policies with a disparate impact. One
such form is when a political process is restructured such
that it makes it more difficult for a group to access rights
after the restructuring than it was before the change. This
sometimes occurs with voter initiatives as in the Hunter [v.
Erickson] case. Voters will pass an initiative that changes
the method in which that particular policy can be altered in
the future- often making it more burdensome for a group to
engage with the policy subsequent to the change. For example,
there may be an issue which is solidly within the purview of
the California [L]egislature and yet, voters will take it upon
themselves to place that issue in the California Constitution
making it much more onerous for minority groups to further
engage the issue. This was the case in both Hunter v. Erickson
and Washington v. Seattle School District [No.1]. The United
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States Supreme Court, recognizing that voter initiatives can
seem facially neutral and yet have an impact that clearly
demonstrates its discriminatory motivation, expanded equal
protection to include restructuring of the political process.
These types of voter initiatives also take place in California
and we want to protect minority groups, if not by population
numbers then by numbers in the electorate, from the will of
the people if that will is discriminatory. We don't have to
look too far to recall instances where the electorate was
either misled or society had not yet reached a just or
favorable perspective of a particular social group and acted
in a malicious manner when voting with regard to the rights of
that group. Indeed, on countless occasions, California voters
have enacted a law which was subsequently found
unconstitutional by the Court.
Thus, in enacting this bill, we further protect minorities
from discrimination as has been modeled by case law from the
United States Supreme Court on the federal level. Anytime a
powerful group can restructure a political process, that
policy will be subjected to strict scrutiny to ensure its
necessity outweighs the diminishing rights of a protected
class.
2. Bill seeks to codify the political structure doctrine from
Hunter and Seattle School District No. 1
This bill would prohibit a statute, ordinance, or other state or
local rule, regulation, or enactment from denying a minority
group "structural equal protection" of the law by altering,
restructuring, or reordering the policy decisionmaking process
in a manner that burdens the ability of members of the minority
group to effect the enactment of future legislation, solely with
respect to a matter that inures primarily to the benefit of, or
is primarily of interest to, one or more minority groups. This
bill would provide that a statute, ordinance, or other state or
local rule, regulation, or enactment shall be determined valid
in an action brought pursuant to this section, only upon a
showing by the government that the burden imposed by the
statute, ordinance, or other state or local rule, regulation, or
enactment satisfies both of the following criteria: (1) the
burden is necessary to serve a compelling government interest;
and (2) the burden is no greater than necessary to serve the
compelling government interest. The concept described in the
bill has actually been discussed by the courts as the political
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structure doctrine, or the political structure equal protection
doctrine, arising out of the cases of Hunter v. Erickson (1969)
393 U.S. 385 and Washington v. Seattle School District No. 1
(1982) 458 U.S. 457. "In those cases--Hunter and Seattle--the
Court recognized what is now known as the 'political-process
doctrine': When the majority reconfigures the political process
in a manner that burdens only a racial minority, that alteration
triggers strict judicial scrutiny." (Schuette v. Coalition to
Defend Affirmative Action (2014) 134 S. Ct. 1623 (J. Sotomoyer,
dissenting; see Background for more.)
To avoid any potential misconception, staff notes first that it
is not likely that this bill would-or could, for that
matter-have any practical effect on the validity of Proposition
209. As a matter of law, nothing in this or any other statute
can feasibly overturn a constitutional provision-namely, Article
I, Section 31 of the California Constitution as enacted by
Proposition 209. As a matter of interpreting whether that
constitutional provision violates the Equal Protection Clause of
the 14th Amendment, again, that issue is a matter for the
courts, as dictated by the separation of powers. (See Marbury
v. Madison (1803) 5 U.S. 137.) To that end, Proposition 209 has
been upheld by the California Courts. As stated by California
Supreme Court in the case of Coral Construction Inc. v. City of
San Francisco (2010) 50 Cal.4th 315, "[n]othing in Hunter [ . .
. ] or Seattle supports extending the political structure
doctrine to protect race- or gender-based preferences that equal
protection does not require." In Coral, the court made clear
that while under the rarely used 'political structure' doctrine,
the 14th Amendment reaches a political structure that treats
individuals as equals while subtly distorting governmental
processes in a way that places special burdens on the ability of
minority groups to achieve beneficial legislation, the doctrine
does not invalidate state laws that broadly forbid preferences
and discrimination based on race, gender, and other similar
classifications. (8 Witkin Sum. Cal. Law Const. Law Sec. 967,
citing Coral, at 229.) Moreover, if the case of Schuette v.
Coalition to Defend Affirmative Action is any indication, the
proposition is likely to be upheld by the U.S. Supreme Court as
well. (See Background).
That being said, the legislature would be within its bounds to
pass legislation that would codify the doctrine of political
structure equal protection so as to invalidate, by application
of that doctrine, any state statute, ordinance, or other state
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or local rule, regulation, or enactment-that is not a
constitutional enactment-that denies a minority group equal
protection of the law by altering, restructuring, or reordering
the policy decisionmaking process in a manner that burdens the
ability of members of the minority group to effect the enactment
of future legislation, solely with respect to a matter that
inures primarily to the benefit of, or is primarily of interest
to, one or more minority groups.
In support, the California Civil Rights Coalition and the
Mexican American Legal Defense and Educational Fund (MALDEF),
co-sponsors of this bill, write that:
AB 2646 would extend the structural equal protection doctrine
to California state law. Such recognition is necessary to
guarantee that the California Constitution protects individual
rights and liberties on equal footing with the US
Constitution. This bill will help protect the rights of all
Californians because our robust initiative process often has
targeted minority groups. Since an initiative, in most cases,
can only be undone or revisited through a court or another
initiative, direct democracy not only has the power to take
away rights, but also to fundamentally alter the political
process for some minority groups who have no other recourse to
assert their rights. This bill will preserve a mechanism
through which all minority groups can challenge laws that
infringe on their constitutional right of equal access to the
political process.
[ . . . We] believe California is often at the forefront of
using the law for progressive change. The California
legislature has time and again set trends which are
subsequently followed by other states as to how not only to
protect its residents but encourage them to thrive. When there
is a balance of power and systems of accountability, even
vulnerable communities can transcend their histories and seek
to engage civically, thus, strengthening our democracy. AB
2646 ensures the majority does not have the power to
marginalize the rights and interest of minority groups which
will bode well for California [at] large.
3. Amendment to legislative findings
This bill currently includes a legislative finding that states,
in relevant part, that the Legislature believes that Section 7
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of Article I of the California Constitution provides broader
protection of individual liberties and rights than the Equal
Protection Clause of the 14th Amendment of the United States
Constitution, and these broader protections include the
structural equal protection doctrine, as interpreted prior to
Schuette v. BAMN. As discussed in Comment 2 above,
interpretation of the law is a matter for the courts. Moreover,
also for reasons described in Comment 2, the Legislature cannot
by way of statutory law, vacate or abrogate decisions of the
courts that interpret the constitution of the United States or
of the California Constitution-let alone a decision by the
United States Supreme Court interpreting whether or not a law
violates constitutional provision of the United States
Constitution. Accordingly, the Committee may wish to consider
whether language that would be plainly in violation of the
separation of powers should be deleted from the bill as follows:
Suggested amendment :
On page 3, starting on line 16, through line 22, change to
read "The Legislature believes that Section 7 of Article I of
the California Constitution provides broader protection of
individual liberties and rights than the Equal Protection
Clause of the 14th Amendment of the United States
Constitution, and these broader protections should include the
structural equal protection doctrine , as interpreted prior to
Schuette v. BAMN ."
4. Clarifying amendments
As currently drafted, the bill in its title and in the body of
its provisions makes references to "structural equal
protection." Staff is unaware of any body of case law that
discusses "structural equal protection" but as described in the
bill, it appears that the relevant concept is closer to a
"political structure equal protection," as referenced in cases
such as Coalition to Defend Affirmative Action v. Brown (2012)
674 F.3d 1128 and Coalition for Economic Equity v. Wilson (1997)
122 F.3d 692. Accordingly, the following amendments would
replace references to "structural equal protection" with
references to "political structure equal protection" to
accurately track case law terminology and avoid any potential
confusion:
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Suggested Amendment :
On page 2, line 10, strike "structural equal protection" and
insert "political structure equal protection"
On page 2, line 11, strike "structural equal protection" and
insert "political structure equal protection"
On page 3, line 1, strike "structural equal protection" and
insert "political structure equal protection"
On page 3, line 9, strike "structural equal protection" and
insert "political structure equal protection"
On page 3, line 14, strike "structural equal protection" and
insert "political structure equal protection"
On page 3, line 21, strike "structural equal protection" and
insert "political structure equal protection"
Support : Chinese for Affirmative Action; Dolores Huerta
Foundation; Equal Justice Society; NAACP San Diego Branch; NARAL
Pro-Choice California; National Center for Lesbian Rights
Opposition : None Known
HISTORY
Source : California Civil Rights Coalition; Mexican American
Legal Defense and Educational Fund
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote : Prior votes not relevant to current version of this
bill
**************
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