In summary

Though voters soundly rejected an effort to legalize affirmative action in California in 2020, state Democrats are trying again, proposing a limited version that would allow state agencies to consider race if academic research shows evidence those race-based programs could work. Familiar political battle lines are forming.

While other states are still absorbing the impact of today’s U.S. Supreme Court ruling to stifle affirmative action at colleges and universities, California voters may soon vote on whether they support using state money to fund programs that improve the health, education or economic well-being of specific racial, ethnic and sexual or gender groups.

California isn’t immune to today’s court’s ruling — it all but restricts the state’s private colleges from considering an applicant’s race or ethnicity in admissions.

The decision may also collide with the new attempt to undo the state’s long-running ban on affirmative action, in place after voters in 1996 barred using race, sex, national origin and ethnicity as a factor in public university admissions and other state programs.

“Didn’t we already vote this down in 2020?” a voter may rightfully ask, referring to the failed campaign of Proposition 16, which sought to undo California’s voter-approved 1996 ban on using race, sex, national origin and ethnicity as a factor in public university admissions and other state programs.

The latest effort, known as Assembly Constitutional Amendment 7, wouldn’t fully overturn Proposition 209, which created the country’s first ban on affirmative action 27 years ago. Instead, it would allow state agencies to send the governor a waiver request to avoid some of Proposition 209’s restrictions, as long as the exception is based on scholarly research.

So far the measure, written by Assemblymember Corey Jackson, a Democrat from Perris, has passed two committees in the state Assembly and awaits a hearing in a third.

Beyond those basic details, though, there’s little agreement over what impact the measure would have on California. Would it bring back racial preferences in admissions? Today’s court decision wouldn’t allow it, though the measure’s author denies it was ever his intent to restore that practice in California. 

The amendment “will not be impacted by today’s (U.S. Supreme Court) ruling,” Jackson said.

Will the constitutional amendment permit new race-based programs that clear federal law and court precedent? Very likely not, said one prominent civil rights attorney. 

The point of the measure

As with the 2020 ballot measure, the current effort is meant to compensate for the myriad effects historical prejudice has had on specific groups of people, such as housing discrimination or police profiling. It’s a concept known as equity: making up for past racial injustices by using race as a factor in programs that can help undo those injustices. 

The measure is an “acknowledgment that Prop. 209 was a failed experiment,” said Jackson a week before the Supreme Court struck down affirmative action.

He wants state law relaxed so that lawmakers and state agencies can directly support Black and other marginalized state residents — such as by deploying public funds to address the much higher death rates of Black women giving birth or the lower life expectancy rates of Black and Native American people — while still working within some of the confines of Proposition 209.

The amendment’s focus on identity groups is “making sure that there are interventions that are specifically made for them to help solve the problems that are unique to them,” Jackson said then.

The emphasis on using academic evidence is an attempt to persuade voters that state programs using race as a factor wouldn’t be subjective but would have to meet a high research bar to waive Proposition 209, Jackson said.

That data is also relevant in other ways. Frequently, the groups with poorer life outcomes have small populations. For example, Black and Native American residents combined make up less than a tenth of the state’s population. That means broader programs meant to help low-income Californians may still miss the specific needs of relatively small communities, including in higher education.

Using research-backed approaches to fund state programs is a way to ensure those smaller groups also get help, Jackson said.

That equity framework, however, is at odds with what backers of Proposition 209 sought — equality. 

“If passed, this amendment will significantly weaken California’s constitutional principle of equal treatment for all,” wrote Wenyuan Wu, executive director of Californians for Equal Rights Foundation, in a letter to lawmakers last week.

She told CalMatters she expects state Democrats to prevail in placing the measure on the ballot, but her group will fight it — and has the experience. Wu and other foundation officials played key roles in successfully campaigning against Proposition 16

The foundation she leads recently sued various city and state agencies for using race and sex as a factor in eligibility for public social programs.

Would this measure bring back affirmative action to California?

Unlike Proposition 16, this latest constitutional amendment effort to change Proposition 209 was never meant to permit the state’s public universities to use race as a factor in admissions, Jackson said last week and reiterated today after the Supreme Court’s ruling. 

Wu doesn’t believe him.

His measure would “bring back racial preferences, as long as racial preferences can be used to improve outcomes,” she said two weeks ago. That’s basically undoing Proposition 209 without saying so, her group argues.

Until today, the state’s private universities could consider race in admissions. Federal education watchers long expected the Supreme Court to strike down affirmative action nationally, undoing a court precedent first established in 1978 in a case that concerned the University of California — auguring the system’s central role in setting the national debate around racial preferences.

Should Jackson’s measure reach voters, convincing them to amend Proposition 209 will be a tall order. California’s liberal voting block wasn’t persuaded that the state needed to use race as a factor to solve its biggest problems. Even in progressive Los Angeles County, while a majority of every major racial and ethnic group backed Joe Biden, a Democrat, for president in 2020, most county Asian and white voters voted no on Proposition 16, according to The New York Times.

“State lawmakers who support the bill use the Supreme Court ruling as an impetus to justify their obsession with race and identity politics,” Wu’s group wrote in an email following the court’s decision today.

Gary Orfield, a professor at UCLA who focuses on civil rights in law and education, said last week that Jackson’s measure could create a new legal terrain for the state’s many cultural groups to push for changes in state programs.

“Who knows how the state Supreme Court would interpret language like this or what kinds of issues would be invented that would require interpretation,” Orfield said, who added he’d probably vote for the measure if it appeared on the ballot.

“If you want to eliminate racial discrimination, you have to use race, and that’s what’s been prohibited by the U.S. Supreme Court.”

Thomas Saenz, president and general counsel, Mexican American Legal Defense and Educational Fund

However, it’s hard to predict what those issues or interpretations would look like because the measure’s language and scope are so broad.

So broad, in fact, that like Wu, he thinks the language could permit California public colleges to use race as a factor in admissions — though, again, that permission would be overruled if the U.S. Supreme Court strikes down affirmative action as expected. 

Of course, a future court could overturn a ban on affirmative action — the U.S. Supreme Court has a long history of overruling precedent, just as it did today. So in an era in which affirmative action were legal nationally, Jackson’s measure is, in Orfield’s view, “ambiguous” enough that a state agency could point to studies showing that race-based affirmative action does lead to educational gains for students of color.

There’s ample evidence affirmative action has research-backed support: Last year more than 1,200 academics who study race and education signed legal briefs asking the U.S. Supreme Court to uphold race-based admissions, though clearly the court’s majority remained unpersuaded. 

But the role of research in Jackson’s measure could be clearer, Orfield said, especially because the governor would have final say on which programs get Proposition 209 waivers. “Who would decide what research was good and what research wasn’t so good,” he asked, a point Wu echoed.

Plus, which programs get waivers will likely depend on the governor’s political leanings — and even deep-blue states elect Republicans

Will Jackson’s proposed amendment work legally?

Jackson’s proposal isn’t likely to reach that goal of overcoming past racial and ethnic injustices, said Thomas Saenz, president and general counsel of Mexican American Legal Defense and Educational Fund, a decades-old organization that NBC News in 2016 described as “the law firm of the Latino community.” 

Saenz told CalMatters last week that he doesn’t see how the amendment could make a difference in California a point he underscored in a brief email today.

If the purpose of the measure is to support race-neutral programs that still benefit certain racial and ethnic groups disproportionately, state and federal law already allow that. Common examples are spending more money on students who are low income, previously in the foster care system or are learning English as a second language.

But if the measure wants to permit state decision-making based on race, such as hiring more academic tutors specifically for a racial group that has the lowest graduation rates at a public college, that likely wouldn’t fly federally. 

Saenz, who was a co-chairperson of the campaign in favor of Proposition 16, said last week that under current federal law and court precedent “something that specifically excludes everyone else based on race probably can’t meet the ‘narrow tailoring’ requirements” in place that tell government agencies to use race as minimally as possible.

Instead, state lawmakers would have to include far more specific race-neutral eligibility criteria to target underrepresented identity groups, which is time-consuming, difficult and, in his view, insufficient.

“If you want to eliminate racial discrimination, you have to use race, and that’s what’s been prohibited by the U.S. Supreme Court,” Saenz said last week. The only exception to that prohibition was  college admissions, but after today’s ruling, that’s now unconstitutional.

Jackson understands those federal arguments, but as a state lawmaker, his focus is on state laws, he said. Though the current makeup of the U.S. Supreme Court is ideologically skeptical of racial preferences, that could change.

Until then, Jackson wants California’s laws on racial preferences to at least match federal rules — so if they change, California’s laws will shift in tandem. 

Even if the highest court in the land “is not in our favor, that doesn’t mean that we should not push back against it,” Jackson said.

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Mikhail Zinshteyn has been a higher education reporter since 2015. As a freelancer, he contributed to The Atlantic, The Hechinger Report, Inside Higher Ed and The 74. Previously, he was a reporter at EdSource...