1996 California Proposition 209

The controversy pertaining to affirmative action in California can most notably be traced back to the historic 1978 Supreme Court case Regents of the University of California v. Bakke.[1] There were two major decisions from the case that still stand today. Firstly, the quota system that was once used by the University of California, Davis’ admission process for minority students was ruled unlawful. Secondly, higher-level academic institutions were not prohibited from considering race in the admissions process. The ruling determined in Bakke acted as “a catalyst for voluntary affirmative action programs.” [1] Researchers suggest that the development of such programs for the sake of increasing campus diversity explains the controversy surrounding the implementation of Proposition 209 and Bakke marks the origination of affirmative action debates.[1] Consequently, judiciaries and politicians have since devoted efforts to reinterpreting affirmative action, its related practices, and consequences for students.[1]

The political campaign to place the language of CCRI on the California ballot as a constitutional amendment was initiated by Joe Gelman (president of the Board of Civil Service Commissioners of the City of Los Angeles), Arnold Steinberg (a pollster and political strategist) and Larry Arnn (president of the Claremont Institute). It was later endorsed by Governor Pete Wilson and supported and funded by the California Civil Rights Initiative Campaign, led by University of California Regent Ward Connerly, a Wilson ally. A key co-chair of the campaign was law professor Gail Heriot, who served as a member of the United States Commission on Civil Rights. The initiative was opposed by affirmative action advocates and traditional civil rights and feminist organizations on the left side of the political spectrum. Proposition 209 was voted into law on November 5, 1996, with 55 percent of the vote, and has withstood legal scrutiny ever since.

On September 1, 2011, SB 185 passed both chambers of the California State Legislature, but was vetoed by Governor Jerry Brown. SB 185 would have countered Proposition 209 and authorized the University of California and the California State University to consider race, gender, ethnicity, and national origin, along with other relevant factors, in undergraduate and graduate admissions, to the maximum extent permitted by the 14th Amendment to the United States Constitution, Section 31 of Article I of the California Constitution, and relevant case law. SB 185 was strongly supported by the University of California Students Association.

On December 3, 2012, California State Senator Edward Hernandez introduced California Senate Constitutional Amendment No.5 (SCA-5) in the State Senate. This initiative proposed an amendment to the state constitution to remove provisions of California Proposition 209 related to public post-secondary education, to permit state universities to consider applicants' race, gender, color, ethnicity, or national origin in admission decisions. If passed by both the State Senate and State Assembly, SCA-5 would have been presented to California voters in the November 2014 election. SCA-5 was passed by the California State Senate on January 30, 2014. On February 24, 2014, Gene D. Block, chancellor of UCLA, sent an open letter to all students and faculty expressing his strong opposition to Proposition 209.[2] Following resistance from various citizen groups, including Asian American groups, Senator Hernandez withdrew his measure from consideration.[3]

The legislation that later became Proposition 16 was first introduced as California Assembly Constitutional Amendment No. 5 (ACA 5). It was introduced by Assemblymembers Shirley Weber, Mike Gipson, and Miguel Santiago on January 18, 2019.[4] ACA 5 is a proposed constitutional amendment that repeals the provisions enacted by Proposition 209. In June 2020, the California State Legislature passed ACA 5 with more than a two-thirds vote in each house, allowing the proposal to become a qualified ballot measure and later Proposition 16. Proposition 16 was rejected by voters in the November 2020 election, meaning that Prop 209 remains in the California Constitution.

In November 2006, a similar amendment modeled on California's Proposition 209 was passed in Michigan, titled the Michigan Civil Rights Initiative. The constitutionality of the Michigan Civil Rights Initiative was challenged in the 6th Circuit Court of Appeals. The case, Schuette v. Coalition to Defend Affirmative Action, made its way to the United States Supreme Court. On April 22, 2014, the US Supreme Court ruled 6-2 that the Michigan Civil Rights Initiative is constitutional, and that states had the right to ban the practice of racial and gender preferences/affirmative action if they chose to do so through the electoral process.

On November 5, 1996, the Los Angeles Times conducted an exit poll of 2,473 voters who cast ballots in the general election at 40 polling places. The margin of error was 3 percent (higher for subgroups). The following is the exit poll data on Proposition 209:[11]

On November 27, 1996, U.S. District Court Judge Thelton Henderson blocked enforcement of the proposition.[12] A three-judge panel of the 9th Circuit Court of Appeals subsequently overturned that ruling.[13] Proposition 209 has been the subject of many lawsuits in state courts since its passage but has withstood legal scrutiny over the years.

On August 2, 2010, the Supreme Court of California found for the second time that Proposition 209 was constitutional.[14][15] The ruling, by a 6-1 majority, followed a unanimous affirmation in 2000 of the constitutionality of Prop. 209 by the same court.[16][17]

On April 2, 2012, the 9th U.S. Circuit Court of Appeals rejected the latest challenge to Proposition 209. The three-judge panel concluded that it was bound by a 9th Circuit ruling in 1997 upholding the constitutionality of the affirmative action ban. Ninth Circuit Judge A. Wallace Tashima disagreed in part with the ruling, saying he believes the court "wrongly decided" the issue in 1997.[18][19]

According to UC Office of the President, "Proposition 209 instigated a dramatic change in UC admissions policy, with URG [under represented group] enrollment at the Berkeley and UCLA campuses immediately falling by more than 60 percent and systemwide URG enrollment falling by at least 12 percent."[20] The same report concluded that "Prop 209 led URG applicants to cascade out of UC into measurably less-advantageous universities, which combined with declines in degree attainment and STEM persistence to lower each URG applicant’s wages by about 5 percent between ages 23 and 35."

Based on "University of California Applicants, Admits and New Enrollees by Campus, Race/Ethnicity", prepared by Institutional Research, the University of California Office of the President, August 11, 2011, enrollment percentages of the four major ethnic groups university-wide are:

African American enrollment rates dropped significantly immediately after the passage of Prop 209.[21] Criticism was raised that of the 4,422 students in UCLA's freshman class of 2006, only 96 (2.26%) were African American.[22]

The percentage of Latino students admitted to the UC system as of 2007 exceeded the Proposition 209 level; however, this is a reflection of the increase in the Latino population in the state of California and the increased capacity within the UC system.[23]

Researchers also found that enrollment statistics for Native American students beginning in 1997 through 2006 declined by 38% cumulatively and, unlike other ethnic groups, has not increased since.[23]

A comprehensive but non-peer reviewed study by Zachary Bleemer found that Prop 209 has had a negative impact on graduation rates, graduate school attendance, and income for black and hispanic students.[24]

In 2021, the University of California freshmen class reached an all-time high with 84,223 students. Latinos were the largest group at 37%; Asian Americans at 34%; white students at 20%; African-Americans at 5%; and 4% composed of American Indians, Pacific Islanders or those who declined to state their race or ethnicity.[25]

One response to Proposition 209 was the establishment of the IDEAL Scholars Fund to provide community and financial support for underrepresented students at the University of California, Berkeley. Private universities and colleges, as well as employers, are not subject to Proposition 209 unless they receive public contracts.

Public opinion polls on affirmative action have varied significantly. It is likely that survey design and the framing of the survey question itself may have significant effects on the survey results.

In a survey conducted by Gallup in 2013,[26] 67% of U.S. adults believed college admission should be solely based on merit. According to Gallup: "One of the clearest examples of affirmative action in practice is colleges' taking into account a person's racial or ethnic background when deciding which applicants will be admitted. Americans seem reluctant to endorse such a practice, and even blacks, who have historically been helped by such programs, are divided on the matter. Aside from blacks, a majority of all other major subgroups believe colleges should determine admissions solely on merit."

In a national survey conducted by the Pew Research Center in 2014, among 3,335 Americans, 63% felt that affirmative action programs designed to increase the number of black and minority students on college campuses are a good thing.[27]

In October 2018, APIA Vote and AAPI Data published the results of their 2018 Asian American Voter Survey and found that 66% of Asian Americans favor "affirmative action programs designed to help blacks, women, and other minorities get better access to education."[28] Previous reports by these organizations have found consistent support for affirmative action by Asian Americans over time, in multiple surveys.[29]

In February 2019, Gallup published the results of a November and December 2018 survey and found that support for affirmative action programs was growing.[30] They polled 6,502 Americans. Of survey respondents, 65% favored affirmative action programs for women and 61% favored affirmative action programs for minorities.

Also in February 2019, the Pew Research Center published the results of a January and February 2019 survey and found that 73% of its respondents said that race or ethnicity should not be a factor in college admissions decisions.[31] According to this survey's results, majorities across racial and ethnic groups agree that race should not be a factor in college admissions decisions. White adults are particularly likely to hold this view: 78% say this, compared with 65% of Hispanics, 62% of blacks, and 58% of Asians.