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California Affirmative Action, Proposition 209 (1996)

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Proposition 209 was on the November 5, 1996 general election ballot in California as an initiated constitutional amendment, where it was approved.

Proposition 209 amended the California Constitution to prohibit public institutions from discriminating on the basis of race, sex, or ethnicity. It was supported by the California Civil Rights Initiative Campaign, led by University of California Regent Ward Connerly, and opposed by pro-affirmative action advocacy groups.

After Proposition 209 was approved by voters, it was challenged in the courts. In 2000, the California Supreme Court said that Proposition 209 is constitutional.[1]

Opponents of Proposition 209 filed a federal lawsuit in 2010 to undercut the provisions of Proposition 209 by allowing the University of California to use affirmative-action criteria in its admissions decisions, as it did before the enactment in 1996 of Proposition 209.[1] A 3-judge panel of the United States Court of Appeals for the Ninth Circuit on April 2, 2012 voted to uphold Proposition 209. The same federal appeals court had previously upheld Proposition 209. The lawsuit that led to the April 2012 ruling had claimed that a new ruling was required by new evidence showing that in the years after the adoption of Proposition 209, minority admissions to the state's "most prestigious" universities declined.[2] (Read more below).

Election results

California Proposition 209 (1996)
ResultVotesPercentage
Approveda Yes 5,268,462 54.6%
No4,388,73345.4%

Aftermath

In the wake of Proposition 209's approval, debate continued over the desirability of or need for affirmative action at California's colleges. As recently as 2010, David A. Lehrer and Joe R. Hicks, who supported Proposition 209 in 1996, argued that statistics about the racial makeup of admissions at the University of California demonstrate that preferential admissions practices were not necessary to bring about diversity. They wrote:

"The number of minority admissions to the University of California for this fall [2010] — without the benefit of preferences — exceeds that of 1996, in absolute numbers and, more important, as a percentage of all "admits." The numbers are, in almost every category, quite staggering.
Latino students have gone from 15.4% (5,744 students) of freshman undergraduate admissions in 1996 to 23% (14,081) in 2010 (a 145% increase). Asian students have gone from 29.8% (11,085) of the freshman admits to 37.47% (22,877). Native American admits have declined slightly, from 0.9% to 0.8%, but their absolute number increased, from 360 to 531. African American admits have gone from 4% (1,628) to 4.2% (2,624), a modest gain in percentage but nearly a 50% increase in numbers of freshmen admitted.
The only major category that declined in percentage terms was whites, who went from 44% (16,465) of the freshmen admits to 34% (20,807)."[1]

Lawsuits

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1996 lawsuit

On November 27, 1996, U.S. District Court Judge Thelton Henderson blocked enforcement of California's Proposition 209. A three-judge panel of the U.S. Ninth Circuit Court of Appeals subsequently overturned that ruling.

2010 lawsuit

In a 6-1 ruling in early August 2010 on a lawsuit brought by the Pacific Legal Foundation against the City of San Francisco, the California Supreme Court ruled that Proposition 209 does not violate the federal constitution. What was at issue was a program by the City of San Francisco that gave women and minorities an advantage in bidding for city contracts. The Pacific Legal Foundation said that this program violates the terms of Proposition 209. The city, in its defense, said that it doesn't have to follow the terms of Proposition 209, because Proposition 209 is unconstitutional. The state's high court disagreed. Writing for the majority, justice Kathryn Mickle Werdegar wrote, "Even in the rare case in which racial preferences are required by equal protection as a remedy for discrimination, the governmental body adopting such remedies must undertake an extraordinary burden of justification."[3]

Coalition to Defend Affirmative Action v. Brown

See also: List of ballot measure lawsuits in 2012

In April of 2012, a three-judge panel from the U.S. 9th Circuit Court of Appeals upheld the constitutional law created by Proposition 209 in the case of Coalition to Defend Affirmative Action v. Brown (11-15100). After the passing of Proposition 209, the University of California system was forced to end its affirmative action program. The plaintiffs argued that while the University system could give admission preference based on factors such as military service, income, geographical background, athletic ability, and legacy, not giving preference to race to promote diversity and fight inequality and racial segregation violated equal protection rights. The court cited a 1997 ruling in upholding the law.[4][5]

  • The ruling can be found here.

Graduation rates

Since the passage of Proposition 209, higher graduation rates have been posted at University of California schools, which led opponents of affirmative action to suggest a causal link between Proposition 209 and a better-prepared student body. The African American graduation rate at the University of California, Berkeley increased by 6.5 percent, and rose even more dramatically, from 26 percent to 52 percent, at the University of California, San Diego.

While African American graduation rates at UC Berkeley increased by 6.5 percent, the enrollment rates dropped significantly. In fact, opponents of Proposition 209 claim there are greater disparities in elite education in the post-Proposition 209 era due to decreased African American and Latino enrollment. Proponents, on the other hand, note that Asian American enrollment rates dramatically increased at a majority of UC campuses.

Constitutional changes

California Constitution
Articles
IIIIIIIVVVIVIIVIIIIXXXAXBXIXIIXIIIXIII AXIII BXIII CXIII DXIVXVXVIXVIIIXIXXIX AXIX BXIX CXXXXIXXIIXXXIVXXXV

The passage of Proposition 209 amended the California Constitution to include a new section (Section 31 of Article I), which reads:

(a) 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.
(b) This section shall apply only to action taken after the section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.
(f) For the purposes of this section, "state" shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.
(g) The remedies available for violations of this section shall be the same, regardless of the injured party's race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.
(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

Text of measure

Summary

209.gif

The official ballot summary that appeared on the ballot said:

  • Prohibits the state, local governments, districts, public universities, colleges, and schools, and other government instrumentalities from discriminating against or giving preferential treatment to any individual or group in public employment, public education, or public contracting on the basis of race, sex, color, ethnicity, or national origin.
  • Does not prohibit reasonably necessary, bona fide qualifications based on sex and actions necessary for receipt of federal funds.
  • Mandates enforcement to extent permitted by federal law.
  • Requires uniform remedies for violations. Provides for severability of provisions if invalid.

Fiscal impact

The California Legislative Analyst's Office provided an estimate of net state and local government fiscal impact for Proposition 209. That estimate was:

  • The measure could affect state and local programs that currently cost well in excess of $125 million annually.
  • Actual savings to the state and local governments would depend on various factors (such as future court decisions and implementation actions by government entities).

Support

Supporters of Proposition 209 contended that existing affirmative action programs led public employers and universities to reject applicants based on their race, and that Proposition 209 would "restore and recreate the historic Civil Rights Act."

Organizations supporting Proposition 209 included:

Opposition

Opponents of Proposition 209 argued that it would end affirmative action practices of tutoring, mentoring, outreach and recruitment of women and minorities in California universities and businesses.

Organizations opposing Proposition 209 included:

Similar ballot initiatives

External links

References