CA Senate Forced to Significantly Amend AB 1604 Over Attempt to Institute Racial Preferences

Californians for Equal Rights Foundation, in collaboration with the Pacific Legal Foundation, has successfully forced the California State Senate to significantly amend Assembly Bill 1604 so that the amended version complies with the State Constitution, and specifically the constitutional ban on racial preferences, according to Dr. Wenyuan Wu with CFER.

As a result of CFER’s dogged monitoring of AB 1604, the bill, also known as “California’s Upward Mobility Act of 2022” has been amended with portions that appear to lead to racial preferences and quotas being removed.

Wu had warned one legislative committee that if passed, the bill would violate the state constitutional ban on preferential treatment in public employment:

“AB 1604 proposes setting up annual goals and timetables for civil service positions ‘that include race, gender, LGBTQ, veteran status, or physical or mental disability as factors.’ In addition, AB 1604 stipulates that ‘all state boards and commissions consisting of one or more volunteer members have at least one board member or commissioner from an underrepresented community.’ This is tantamount to instituting racial preferences, thereby violating the state constitution, stoking racial divisions, and legalizing racial discrimination in public employment.”

The California Civil Rights Initiative, known as Proposition 209, protects all Californians from discrimination. Prop. 209, passed by voters 55% to 45% in 1996, said that the state cannot discriminate against or grant preferential treatment on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, and public contracting.

Prop. 209 is based on the exact language of the 1964 U.S. Civil Right Act.

Yet the California Legislature has attempted to whittle away at Prop. 209’s protections since it was passed by voters.

“In California, workforce diversity for people of color in public employment has increased significantly and reflected changes in the working age population: the percentage of minority civil servants rose from 38% (70,000) in 1990 to over 58% (132,413) in 2020,” Wu told the committee. “Women make up about 46.5% of the civil workforce. In addition, the upward trend is not skewed by the unverified allegation of minorities’ occupying low-paying positions. In the Department of Motor vehicles, for instance, managerial positions are 29% black, 28% Hispanic, 2% Asian, and 33% white. AB 1604 is based on a misguided rationale of engineered disparities.”

Wu notes that Gov. Gavin Newsom vetoed the bill’s precedent, AB 105 in October 2021, cautioning against its conflict with “existing constitutional requirements.” 

“We are encouraged by this unexpected development, in lieu of a Democratic supermajority at the California State Legislature, as it demonstrates the success of CFER as a watchdog group that monitors state bills and other policy proposals pertaining to equality and merit,” CFER said in a statement. “State lawmakers acknowledged the merits of our argument and demanded the bill author make large concessions so that the finalized proposal aligns with the State Constitution. At the same time, AB 1604’s proponents included many powerful groups, such as the California Insurance Commission, Association of California State Employees, California Teachers Association, and Hewlett-Packard Company, the State Legislature has considered our well-grounded reasoning and warning that an unconstitutional bill would invite future legal challenges.”

It was only in 2020 that California voters defeated Proposition 16 which would have reversed equal rights and equal opportunities made possible by the California Civil Rights Initiative in   Proposition 209, which protects all Californians from discrimination.