ACA 7 Aims to Authorize Race Discrimination in K-12 Gifted Programs & College Financial Aid

In 1996, California voters passed Proposition 209, which amended the California Constitution to ban racial preferences and race-based affirmative action. However, the proponents of race-based affirmative action spent the next 20 years scheming on other ways to circumvent the law.

By 2020 they offered up a new ballot measure, Proposition 16, which would have overturned Prop. 209. But voters soundly rejected Prop. 16 by 43% to 57%.

However, even after badly losing the 2020 referendum to bring back racial preferences, the professional class of race hustlers came back again – with a constitutional amendment, to overturn California’s ban on the preferential treatment to persons on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.

2024’s Assembly Constitutional Amendment 7 by Assemblyman Corey Jackson (D-Riverside) was passed the Assembly 62-18, but stalled and died in 2024. We hoped it was dead and buried, but it returned from the grave.

The new version, also ACA 7 and also authored by Assemblyman Corey Jackson (D-Riverside), has passed through three Assembly committees, but hasn’t yet been approved by the full Assembly, though it is expected to.

The new ACA 7 will authorize discrimination in K-12, and in application to higher education. Its aim is especially to authorize race discrimination in admissions to gifted and talented programs and college financial aid.

The author of the new ACA 7 is attempting incrementalism this time, as ACA 7 removes public education from the list of State operations expressly prohibited from racially discriminating against or providing racial preferential treatment.

According to Assembly Floor analysis, the Pacific Legal Foundation opposes ACA 7:

″While ACA 7 preserves the prohibition on discrimination in higher education enrollment, it will permit the government to discriminate in all aspects of K-12 education and all other aspects pertaining to colleges and universities. This uneven and inconsistent preservation of equality and opportunity fails to fully live up to the guarantee of the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Adherence to the Fourteenth Amendment mandates that ′[e]liminating racial discrimination means eliminating all of it.′ It is thus insufficient under our constitution that government cannot discriminate in higher education enrollment but can discriminate everywhere else. Opposing ACA 7 will uphold the promise of equality that Proposition 209 protects. Since the passage of Proposition 209, Californians have consistently given strong support to the constitutional prohibition on racial preferences and discrimination. In 2020, Californians defeated Proposition 16 in a landslide, rejecting an amendment to repeal Proposition 209. And in 2024, an attempt to permit broad exceptions to Proposition 209 was unsuccessful when the Legislature failed to pass ACA 7.″

Gail Heriot, a Professor of Law at the University of San Diego and a commissioner on the United States Commission on Civil Rights, sent a letter to a number of Senators explaining the bill’s implications:

ACA7 would take the following words from the state constitution, put there in 1996 by Proposition 209, and amend them as shown:  “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, color, sex, ethnicity, or national origin in the operation of public employment, higher education admissions and enrollment public education or public contracting.”  Cal. Const. art. I, § 31.

In other words, (1) in higher education, Proposition 209 would apply only to admissions and enrollment; and (2) in kindergarten – 12^th grade, it wouldn’t apply at all.  

Let me concentrate in this letter on higher education.  Since ACA7 exempts “admissions and enrollment,” its most important application in higher education will be to tuition and financial aid.  

Here’s what college and university administrators know that some people don’t know (mainly because those administrators don’t like to talk about it):  During the long reign of race-preferences in admissions, college and universities outside California (and hence not governed by Proposition 209) felt free to discriminate on the basis of race not just in admissions, but also in financial aid.  The difference in financial aid offered to African American students as contrasted with Asian American, white and sometimes Latino students of equal financial standing was often stark.  College and university leaders justified this by telling themselves that they had to do so to attract African American students.  African American students were in great demand and without attractive financial aid offers, a school was likely to lose them to the competition.

The differences were often more in the package than in the amounts. An African American student would be given grants, while a student of any other race would be saddled with student loans, despite having equal (or even greater) financial need.  The difference between receiving grants and receiving loans is huge.  If ACA7 passes, Proposition 209 will no longer prohibit such discrimination.  Indeed, this is overwhelmingly likely to be the most important reason its supporters are putting it forth.

“Most people view such a financial aid policy as repugnant,” Professor Heriot said. “They believe that need should be the overwhelming factor in awarding financial aid.”

If that is not repugnant enough, Prof. Heriot warns that Assemblyman Corey Jackson and his fellows “reparations” activists want to use ACA 7 to offer free tuition in California’s universities to African American students as reparations compensation, and/or as compensation for past discrimination, even though California was not a slave state, as the Globe continues to remind readers and voters. Gov. Newsom’s Reparations Task Force even formally recommended that the state legislature repeal Proposition 209.

Heriot says, “If Jackson’s plan becomes common knowledge while ACA7 is on the ballot, I don’t see how ACA7 could even do as well as the doomed Proposition 16. More voters will be alienated, perhaps even enough to cause the Democratic Party to lose its super-majority in one or both chambers of the Legislature.”

She says she does not believe ACA 7 would be passed by voters, but if it does pass, she doesn’t think these discriminatory practices will ever be upheld in court since the Supreme Court decided the 2020 Students for Fair Admissions, Inc. v. President & Fellows of Harvard College.

“But we shouldn’t have to spend the rest of our lives fighting this stuff.   We need to kill the bill now,” Professor Heriot said.

Racial preferences are harmful and destructive, not just to those left out, but to those the practice is intended to help. And they are divisive and threaten social cohesion.

In the landmark U.S. Supreme Court case Grutter v. Bollinger, Supreme Court Justice Clarence Thomas showed his preference for a colorblind approach, and why the government should never treat individuals differently based on race:

“The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.”

We need to kill the bill now.