Affirmative Action Could Return Under New State Constitutional Amendment Proposal

A new state constitutional amendment proposed last week to reinstate affirmative action in California gained more political support during the weekend, potentially setting up the largest fight over the issue in California since 2014.

A new challenge to affirmative action

Assembly Constitutional Amendment 5, authored by Assemblywoman Dr. Shirley Weber (D-San Diego) and Assemblyman Mike Gipson (D-Carson), would overturn Proposition 209, a 1996 law removing affirmative action in California that was voted in 55% to 45%.

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

Connerly, an African American man, founded the American Civil Rights Institute, which “sought to affect a cultural change by challenging the ‘race matters’ mentality embraced by many of today’s so-called ‘civil rights leaders.’ ACRI’s leaders and supporters believe that civil rights are individual rights and that government policies should not advocate group rights over individual rights.”

Prop. 209 stated that public institutions could no longer discriminate based on sex, race, or ethnicity. This includes enrollment in Californian state colleges and universities, which saw minority student numbers fall in subsequent years. ACA 5 would allow for sex and race to be considered for state positions once again.

Supporters of the Amendment have pointed to statistics showing how minorities and women have had greater hardships and lost opportunities because of Prop 209. Those for ACA 5  also note the opportunities for men and women are not always equal, with the proposed Amendment correcting that.

“Proposition 209 has cost women- and minority-owned businesses $1.1 billion each year,” said Assemblywoman Weber said in a press release. “It has perpetuated a wage gap wherein women make 80 cents on every dollar made by men and has allowed discriminatory hiring and contracting processes to continue unhindered.”

“I’m a product of Affirmative Action,” added Assemblywoman Lorena Gonzalez (D-San Diego). “Without it, I wouldn’t be where I am today. I believe every qualified person from an underrepresented community in California should have the same opportunity I had.”

The Black, Latino, API, and Women’s Caucuses have also joined in support of the Amendment, along with several civil rights organizations. This weekend brought many more groups, most notably minority and women’s groups, to join the growing list in support of ACA 5.

Opposition to ACA 5

Those opposing an amendment have expressed that affirmative action is essentially ‘reverse racism’, and that the action itself keeps away more qualified people as a result.

“We saw all the way back to the Bakke ruling where affirmative action leads,” notes former law professor Dr. Lawrence Stephens. “Out of all the states to not have affirmative action, California has somehow remained one since 1996. And people there voted to give people jobs and college positions based on merit and experience, and not because of factors like race or gender. The best person gets it.”

“It’s not dog whistling to call it ‘reverse racism’, because that’s exactly what it is. Under the old system you got ‘points’ for being a different race. How is that equal? I always heard back from colleagues that it was because they have been historically subjected and that education in minority areas is generally lower, so they don’t get the same opportunities.  But when you use government laws to change it, so that people with lower grades or less experience get in, it’s just another form of discrimination. It’s not fair at all. And many Californians realize this.”

Support against the possible amendment has been growing, with many professional organizations noting their opposition with many Assembly members and Senators expected to come out against ACA 5 as well.

Sine 1996 there have been several attempts to reverse Prop 209. A 2011 passed both houses in Sacramento only for then Governor Jerry Brown to veto it. A previous constitutional amendment challenge in 2014, SCA 5, had also passed in the Senate and looked clear for a statewide vote that November. But due to an outcry from Asian-Americans over a reduction of Asian students, SCA 5 was pulled and died later that year.

ACA 5 is expected to be heard in the Assembly in the coming months. If passed, ACA 5 would head to the ballot for California voters to decide, most likely by 2022.

Mr. Connerly, founder of the American Civil Rights Institute, a national, not-for-profit organization aimed at educating the public about the need to move beyond race and, specifically, racial and gender preferences, is the  author of Creating Equal: My Fight Against Race Preferences.