The California Constitution, pursuant to provisions enacted by the initiative Proposition 209 in 1996, prohibits the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. The California Constitution defines the state for these purposes to include the state, any city, county, public university system, community college district, school district, special district, or any other political subdivision or governmental instrumentality of, or within, the state.

This measure would instead prohibit the state from harmfully discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment or public education, except as provided. The measure would provide that, subject to approval by the Governor pursuant to specified procedures, the state except as specified, a state agency or a local agency may use state moneys to fund research-based, or research-informed, research-based or research-informed and culturally specific programs in any industry if certain conditions are satisfied, including that those programs are established or otherwise implemented by the state for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations. eliminating legal barriers to the creation of equality and equitable outcomes for all residents of the state in a specified manner. The measure would define various terms for these purposes.

The California Constitution, pursuant to provisions enacted by the initiative Proposition 209 in 1996, prohibits the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. The California Constitution defines the state for these purposes to include the state, any city, county, public university system, community college district, school district, special district, or any other political subdivision or governmental instrumentality of, or within, the state.

This measure would provide that, subject to approval by the Governor pursuant to specified procedures, the state may use state moneys to fund research-based, or research-informed, and culturally specific interventions or programs in any industry if those interventions or programs are established or otherwise implemented by the state for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.

The California Constitution, pursuant to provisions enacted by the initiative Proposition 209 in 1996, prohibits the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. The California Constitution defines the state for these purposes to include the state, any city, county, public university system, community college district, school district, special district, or any other political subdivision or governmental instrumentality of, or within, the state.

This measure would provide that, subject to approval by the Governor, Governor pursuant to specified procedures, the state may utilize use state moneys to fund research-based, or research-informed, and culturally specific interventions or programs in any industry if those interventions or programs are established or otherwise implemented by the state for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific ethnic groups based on race, color, ethnicity, national origin, or marginalized genders. genders, sexes, or sexual orientations.

The California Constitution, pursuant to provisions enacted by the initiative Proposition 209 in 1996, prohibits the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. The California Constitution defines the state for these purposes to include the state, any city, county, public university system, community college district, school district, special district, or any other political subdivision or governmental instrumentality of, or within, the state.

This measure would provide that, subject to approval by the Governor, the state may utilize state moneys to fund research-based, or research-informed, and culturally specific interventions or programs if those interventions or programs are established or otherwise implemented by the state for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific ethnic groups or marginalized genders.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202324 Regular Session commencing on the fifth day of December 2022, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

(a)(1)Except as provided in paragraph (2), the The State shall not harmfully discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, employment or public education, or public contracting. education, except as specified.

(2)(A)Notwithstanding paragraph (1) but subject to approval by the Governor pursuant to the procedures in subparagraph (B), the State may use any other law, it shall not be considered discrimination or a grant of preferential treatment in violation of paragraph (1) when a state agency or a local agency uses state moneys to fund research-based, or research-informed, research-based or research-informed and culturally specific programs in any industry, including, but not limited to, public employment, employment and public education, and public contracting, if those programs are if all of the following conditions are satisfied:

(A)The program is established or otherwise implemented by the State for purposes of increasing eliminating legal barriers to the creation of equality and equitable outcomes for all residents of the State in a manner that satisfies both of the following:

(i)Empowers individuals to live longer and healthier lives by increasing the life expectancy health of, improving educational outcomes for, decreasing hate crimes against, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.

(b)This section shall apply only to action taken after the sections effective date.

(c)This section shall not be interpreted as prohibiting bona fide qualifications based on sex which that are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d)This section shall not be interpreted as invalidating any court order or consent decree which that is in force as of the effective date of this section.

(e)This section shall not be interpreted as prohibiting action which that must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.

(i)For the purposes of this section, the following definitions apply:

(1)Culturally specific program means a program or practice that infuses the history, language, ancestry, traditions, and rituals of a specific race, color, ethnicity, national origin, religion, gender, sex, or sexual orientation into its design and implementation.

(2)Disaggregated data means data that has been broken down into detailed subcategories within ethnic groups, age, sexual orientation, and gender identity, with the intent of identifying the unique differences within groups and addressing more concentrated disparities facing specific subgroups.

(4)Research-based program means a program or practice that has been tested in a manner that meets all of the following conditions:

(A)The test is conducted with a single randomized evaluation, a single statistically controlled evaluation, or both.

(B)The test is inclusive and representative of the diverse populations in the state, State, based on the most recent census data.

(C)The test demonstrates sustained desirable outcomes or the weight of the evidence from a systemic review of the test supports sustained outcomes.

(5)Research-informed program means a program or practice that exercises the explicit and judicious use of the best available evidence from multiple sources that use disaggregated data to increase the likelihood of a favorable outcome.

(6)State shall include, but is not limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.

(8)State moneys means all money, bonds, and securities possessed by the State itself.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202324 Regular Session commencing on the fifth day of December 2022, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

(a)(1)Except as provided in paragraph (2), the State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(2)(A)Notwithstanding paragraph (1) but subject to approval by the Governor pursuant to the procedures in subparagraph (B), the State may use state moneys to fund research-based, or research-informed, and culturally specific interventions or programs in any industry, including, but not limited to, public employment, public education, and public contracting, if those interventions or programs are established or otherwise implemented by the State for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.

(B)The Governor shall review and approve or reject an application submitted to the Governor for purposes of subparagraph (A) within 60 days of receiving the application. If the Governor denies the application, the Governor shall notify the applicant and publish on their internet website a message explaining the basis for the denial.

(b)This section shall apply only to action taken after the sections effective date.

(c)This section shall not be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d)This section shall not be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e)This section shall not be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.

(f)For the purposes of this section, the following definitions apply:

(1)Culturally specific intervention or program means a program or practice that infuses the history, language, ancestry, traditions, and rituals of a specific race, color, ethnicity, national origin, religion, gender, sex, or sexual orientation into its design and implementation.

(2)Disaggregated data means data that has been broken down into detailed subcategories within ethnic groups, age, sexual orientation, and gender identity, with the intent of identifying the unique differences within groups and addressing more concentrated disparities facing specific subgroups.

(3)Research-based intervention or program means a program or practice that has been tested in a manner that meets all of the following conditions:

(A)The test is conducted with a single randomized evaluation, a single statistically controlled evaluation, or both.

(B)The test is inclusive and representative of the diverse populations in the state, based on the most recent census data.

(C)The test demonstrates sustained desirable outcomes or the weight of the evidence from a systemic review of the test supports sustained outcomes.

(4)Research-informed intervention or program means a program or practice that exercises the explicit and judicious use of the best available evidence from multiple sources that use disaggregated data to increase the likelihood of a favorable outcome.

(5)State shall include, but is not limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.

(6)State moneys means all money, bonds, and securities possessed by the State itself.

(g)The remedies available for violations of this section shall be the same, regardless of the injured partys race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h)This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202324 Regular Session commencing on the fifth day of December 2022, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

(a)(1)Except as provided in paragraph (2), the State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(2)Subject (A)Notwithstanding paragraph (1) but subject to approval by the Governor, Governor pursuant to the procedures in subparagraph (B), the State may utilize use state moneys to fund research-based, or research-informed, and culturally specific interventions or programs in any industry, including, but not limited to, public employment, public education, and public contracting, if those interventions or programs are established or otherwise implemented by the State for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific ethnic groups based on race, color, ethnicity, national origin, or marginalized genders. genders, sexes, or sexual orientations.

(b)This section shall apply only to action taken after the sections effective date.

(c)This section shall not be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d)This section shall not be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e)This section shall not be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.

(f)For the purposes of this section, the following definitions apply:

(5)State shall include, but is not limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.

(6)State moneys means all money, bonds, and securities possessed by the State itself.

(g)The remedies available for violations of this section shall be the same, regardless of the injured partys race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h)This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202324 Regular Session commencing on the fifth day of December 2022, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:

(a)The (1)Except as provided in paragraph (2), the State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

(b)This section shall apply only to action taken after the sections effective date.

(c)Nothing in this This section shall not be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d)Nothing in this This section shall not be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e)Nothing in this This section shall not be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the State.

(f)For the purposes of this section, State the following definitions apply:

(1)State shall include, but is not necessarily be limited to, the State itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the State.

(g)The remedies available for violations of this section shall be the same, regardless of the injured partys race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h)This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.

ASSEMBLY THIRD READING

ATR Bill Id:ACA 7

Author:(Jackson)

As Amended Ver:June 14, 2023

2/3 vote

SUMMARY

Amends the California Constitution to allow the State to fund programs for the purpose of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups.

Major Provisions

1. Authorizes, subject to approval by the Governor, the State to use state moneys to fund research-based, or research-informed, and culturally specific programs in any industry, including, but not limited to, public employment, public education, and public contracting, if those programs are established or otherwise implemented by the State for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.
2. Defines "state moneys" to mean all money, bonds, and securities possessed by the State itself.
3. Requires the Governor to review and approve or reject an application submitted to the Governor for purposes of 1), above, within 60 days of receiving the application. Requires the Governor, if the application is denied, to notify the applicant and publish on their internet website a message explaining the basis for the denial.
4. Defines "culturally specific program" to mean a program or practice that infuses the history, language, ancestry, traditions, and rituals of a specific race, color, ethnicity, national origin, religion, gender, sex, or sexual orientation into its design and implementation.
5. Defines "research-based program" to mean a program or practice that has been tested in a manner that meets all of the following conditions:
6. The test is conducted with a single randomized evaluation, a single statistically controlled evaluation, or both;
7. The test is inclusive and representative of the diverse populations in the state, based on the most recent census data; or,
8. The test demonstrates sustained desirable outcomes or the weight of the evidence from a systemic review of the test supports sustained outcomes.
9. Defines "research-informed program" to mean a program or practice that exercises the explicit and judicious use of the best available evidence from multiple sources that use disaggregated data to increase the likelihood of a favorable outcome.
10. Defines "disaggregated data" to mean data that has been broken down into detailed subcategories within ethnic groups, age, sexual orientation, and gender identity, with the intent of identifying the unique differences within groups and addressing more concentrated disparities facing specific subgroups.

COMMENTS

Background: Proposition 209. In 1996, Proposition 209 (Prop 209) was placed on the ballot and approved by voters, by a nearly 55-45 margin, to amend the state constitution to provide, "the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting."

According to a 2002 publication from the Senate Office of Research (SOR) entitled Legal History of Proposition 209:

"A common misconception of the initiative was that it outlawed affirmative action. Affirmative action, which is not mentioned in the initiative's wording, has different meanings for different people. To some, it is synonymous with preferences based on race or gender that are clearly illegal under Proposition 209. For others, the term speaks to positive actions taken to overcome the effects of past and current discrimination. The California codes contain a number of references to affirmative action concepts, programs and officers. Such references do not violate Proposition 209 unless the statute discriminates or grants preferential treatment on the basis of race, sex, color, ethnicity, or national origin."

The SOR publication discusses the many legal cases that have ensued as a result of the passage of Prop 209 in an effort to define the scope of Prop 209. It concludes that while specific provisions of laws ordering affirmative action were invalidated in subsequent court cases, "the courts were careful to note that proactive steps to encourage diversity are permissible so long as they are consistent with Proposition 209."

ACA 5 and Proposition 16. While there were numerous legislative attempts in the intervening years since Prop 209 was adopted to repeal provisions relating to public education, ACA 5 (Weber), Resolution Chapter 23, Statutes of 2020, was the first to be placed on the ballot since Prop 209 was approved by voters in 1996, and sought to repeal Prop 209 in its entirety. Specifically, ACA 5 would have permitted government decision-making policies to consider race, sex, color, ethnicity, or national origin to address diversity by repealing Article I, Section 31, of the California Constitution, which was added by Proposition 209 in 1996.

While Prop 209 generally prohibits state and local governments from discriminating against, or granting preferential treatment to, individuals or groups on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, education, or contracting, it does not alter other state and federal laws guaranteeing equal protection and prohibiting unlawful discrimination. According to the LAO:

"The federal, state, and local governments run many programs intended to increase opportunities for various groups -- including women and racial and ethnic minority groups. These programs are commonly called "affirmative action" programs. For example, state law identifies specific goals for the participation of women-owned and minority-owned companies on work involved with state contracts. State departments are expected, but not required, to meet these goals, which include that at least 15 percent of the value of contract work should be done by minority-owned companies and at least 5 percent should be done by women-owned companies. The law requires departments, however, to reject bids from companies that have not made sufficient "good faith efforts" to meet these goals."

As a result of ACA 5 being adopted by the Legislature, and Chaptered by the Secretary of State, Proposition 16 was placed on the ballot, but was ultimately rejected with 57% of California's electorate voting to keep Prop 209's provisions in place.

Research has demonstrated that educational attainment, income, wealth, and economic mobility exhibit significantly persistent racial disparities in the United States. Access to selective universities is a key determinant of economic success and intergenerational mobility. An August 2020 University of California (UC) Berkeley Goldman School of Public Policy publication entitled, Affirmative Action, Mismatch, and Economic Mobility After California's Proposition 209 by Zachary Bleemer, analyzed Prop 209's impact on student outcomes and found that the average underrepresented minority (URM) applicants' undergraduate and graduate degree attainment declined overall and in STEM fields, especially among lower-testing applicants. As a result, the average URM UC applicant's wages declined by 5% percent annually between ages 24 and 34, almost wholly driven by declines among Latino applicants. The study further finds that, by the mid-2010s, Prop 209 had caused at least a 3% cumulative decline in the number of early-career URM Californians earning over $100,000. Prop 209 also deterred thousands of qualified URM students from applying to any UC campus. The study concluded that enrolling at less-selective UC campuses did not improve URM students' performance or persistence in STEM course sequences. Furthermore, a report conducted by the Equal Justice Society found that Prop 209 caused the state and local governments to end their race-conscious contracting programs, costing minority and women business enterprises over $1 billion annually.

Data confirms that communities of color in California still suffer significantly higher rates of poverty relative to their White counterparts: specifically, 22.9% of Latino Californians suffer from poverty, along with 18.2% of Black Californians, compared to 12.8% of White Californians. Racial disparities in health outcomes persist for communities of color, most specifically the Black community, ranking last in California in life expectancy at birth at 75.1, much lower than the state average of 81. This constitutional amendment might allow California to implement more programs that have been demonstrated to increase the life expectancy of, improve educational outcomes for, or lift out of poverty, specific marginalized populations which would benefit all Californians.

According to the Author

"Proposition 209 severely limits the state's ability to address systemic inequalities with proven best practices, further exacerbating disparities in public employment, public education, and public contracting. [This measure] will empower California's Governor to approve applications from state and local entities to use state funds for the implementation of research-based, or research-informed, and culturally specific programs to increase the life expectancy of, improve educational outcomes for, or lift out of poverty specific ethnic groups or marginalized genders. In California's efforts to address the long-standing inequalities facing its most vulnerable populations, the Golden State cannot afford to have a hand tied behind its back."

Arguments in Support

The California Teachers Association (CTA) writes in support, "CTA is committed to racial and social justice for all, and to moving California closer toward collective liberation. Further, CTA believes that social justice includes, but is not limited to, political, educational, social, and economic equality and equity for all persons. ACA 7 will give us the tools to close opportunity gaps. It will lead to economic opportunity and growth, create a more equitable society, and increase access to health and educational services for all members of the state. Focus on culture helps address the unique needs of a community and can have long-term, positive impacts on their health, well-being, and economic security. There are clear connections between education outcomes and life expectancy which can impact marginalized populations differently; this bill will facilitate targeting resources to ensure equity."

Arguments in Opposition

Californians for Equal Rights Foundation writes in opposition that "advocating for race/sex-based preferences distorts the principle of equal opportunity into an illiberal, social-engineering tool of equal outcome. Instead of focusing on tribal divisions and political favoritism, we should help all disadvantaged individuals regardless of race or gender. We should also make sure that every individual has equal access to public resources, and that our government provide institutional support that encourages American virtues of hard-work, initiative, self-discipline and individual merit.

FISCAL COMMENTS

According to the Assembly Appropriations Committee on September 1, 2023:

1. Cost pressures of an unknown amount, potentially in the millions of dollars statewide annually (General Fund, special funds, bond funds) to fund eligible programs. Actual costs will depend on the number of successful applications. Under existing constitutional provisions, this measure applies broadly to programs established or implemented by the state, most local governments, school districts, community college districts, and public universities, including the University of California.
2. Ongoing administrative costs, likely in the hundreds of thousands of dollars annually, to the Governor's office to review and approve or reject submitted applications within 60 days of receipt. Additional one-time costs of an unknown amount to develop and implement an application process and establish criteria for approval.
3. One-time General Fund costs to the Secretary of State (SOS) in the range of $738,000 to $984,000 for printing and mailing costs to place the measure on the ballot in a statewide election. Actual costs may be higher or lower, depending on the length of required elements and the overall size of the ballot.
4. SOS estimates printing and mailing costs associated with placing a measure on the statewide ballot to be approximately $123,000 per page, based on the average for the last three elections, and notes the overall costs depend on the length of the ballot. The fiscal estimates noted above reflect the addition of 6 to 8 pages in the Voter Information Guide. Actual costs would depend upon the length of the title and summary, analysis by the Legislative Analyst's Office, proponent and opponent arguments, and text of the proposal.

VOTES

ASM HUMAN SERVICES: 6-2-0

YES: Jackson, Arambula, Bonta, Bryan, Calderon, Garcia

NO: Sanchez, Alanis

ASM JUDICIARY: 8-3-0

YES: Maienschein, Connolly, Haney, Kalra, Pacheco, Papan, Reyes, Robert Rivas

NO: Essayli, Dixon, Sanchez

ASM APPROPRIATIONS: 12-4-0

YES: Holden, Bryan, Calderon, Wendy Carrillo, Mike Fong, Hart, Lowenthal, Papan, Pellerin, Soria, Weber, Wilson

NO: Megan Dahle, Dixon, Mathis, Sanchez

UPDATED

VERSION: June 14, 2023

CONSULTANT: Jessica Langtry / HUM. S. / (916) 319-2089 FN: 0001587

Date of Hearing: September 1, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:ACA 7

Author:(Jackson) – As Amended Ver:June 14, 2023

Urgency: State Mandated Local Program: No Reimbursable: No

SUMMARY:

This measure, subject to voter approval at a statewide election, amends Section 31 of Article I of the California Constitution to authorize the state to fund research-based, or research-informed, and culturally specific programs to improve outcomes for persons based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.

Specifically, this measure:

1. Authorizes, subject to approval by the Governor, the State, as defined, to use state moneys to fund research-based, or research-informed, and culturally specific programs in any industry, including, but not limited to, public employment, public education, and public contracting, if those programs are established or otherwise implemented by the State for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.
2. Requires the Governor to review and approve or reject an application submitted to the Governor for purposes of 1, above, within 60 days of receiving the application. Requires the Governor, if the application is denied, to notify the applicant and publish on their internet website a message explaining the basis for the denial.
3. Defines “state moneys” to mean all money, bonds, and securities possessed by the State itself.
4. Defines “culturally specific program” to mean a program or practice that infuses the history, language, ancestry, traditions, and rituals of a specific race, color, ethnicity, national origin, religion, gender, sex, or sexual orientation into its design and implementation.
5. Defines “research-based program” to mean a program or practice that has been tested in a manner that meets all of the following conditions:
6. The test is conducted with a single randomized evaluation, a single statistically controlled evaluation, or both.
7. The test is inclusive and representative of the diverse populations in the state, based on the most recent census data.
8. The test demonstrates sustained desirable outcomes or the weight of the evidence from a systemic review of the test supports sustained outcomes.
9. Defines “research-informed program” to mean a program or practice that exercises the explicit and judicious use of the best available evidence from multiple sources that use disaggregated data to increase the likelihood of a favorable outcome.
10. Defines “disaggregated data” to mean data that has been broken down into detailed subcategories within ethnic groups, age, sexual orientation, and gender identity, with the intent of identifying the unique differences within groups and addressing more concentrated disparities facing specific subgroups

FISCAL EFFECT:

1. Cost pressures of an unknown amount, potentially in the millions of dollars statewide annually (General Fund, special funds, bond funds) to fund eligible programs. Actual costs will depend on the number of successful applications. Under existing constitutional provisions, this measure applies broadly to programs established or implemented by the state, most local governments, school districts, community college districts, and public universities, including the University of California.
2. Ongoing administrative costs, likely in the hundreds of thousands of dollars annually, to the Governor’s office to review and approve or reject submitted applications within 60 days of receipt. Additional one-time costs of an unknown amount to develop and implement an application process and establish criteria for approval.
3. One-time General Fund costs to the Secretary of State (SOS) in the range of $738,000 to $984,000 for printing and mailing costs to place the measure on the ballot in a statewide election. Actual costs may be higher or lower, depending on the length of required elements and the overall size of the ballot.

SOS estimates printing and mailing costs associated with placing a measure on the statewide ballot to be approximately $123,000 per page, based on the average for the last three elections, and notes the overall costs depend on the length of the ballot. The fiscal estimates noted above reflect the addition of 6 to 8 pages in the Voter Information Guide. Actual costs would depend upon the length of the title and summary, analysis by the Legislative Analyst’s Office, proponent and opponent arguments, and text of the proposal.

COMMENTS:

1. Background and Purpose. In 1996, California voters approved Proposition 209 amending the California Constitution to prohibit the state from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting.

Proposition 209 essentially prohibited the state from developing programs aimed at helping one specific race or gender at the behest of others. Numerous studies suggest this prohibition has been particularly impactful on educational programs seeking to close the achievement gap and on state contracting opportunities. According to the author:

Proposition 209 severely limits the state’s ability to address systemic inequalities with proven best practices, further exacerbating disparities in public employment, public education, and public contracting. [This measure] will empower California’s Governor to approve applications from state and local entities to use state funds for the implementation of research-based, or research-informed, and culturally specific programs or interventions to increase the life expectancy of, improve educational outcomes for, or lift out of poverty specific ethnic groups or marginalized genders. In California’s efforts to address the long-standing inequalities facing its most vulnerable populations, the Golden State cannot afford to have a hand tied behind its back.

Since Proposition 209 was enacted, there have been numerous legislative attempts to repeal the proposition, or provisions thereof, especially relating to public education. The most recent attempt was ACA 5 (Weber), Resolution Chapter 23, Statutes of 2020, which sought to repeal Proposition 209 in its entirety. ACA 5 was placed on the ballot as Proposition 16 in November of 2020, but failed with 43% voting in favor of the measure and 57% voting to reject the measure.

Seeking to mitigate the impacts of Proposition 209 while not outright repealing the measure, this measure permits the state, with the Governor’s approval, to fund programs that specifically improve outcomes for persons based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations, even if such a program only targets one marginalized group and not others.

1. Implementation Issues. As noted in both the Assembly Human Services Committee and Assembly Judiciary Committee analyses, this measure gives a singular person (the Governor), who may not have the expertise required, the authority to approve or deny already-appropriated state funds for specific programs. Typically, government grant funding decisions are made by administrative agencies, typically overseen by gubernatorial appointees with subject-matter expertise in the area in which the funding is being directed. Should this measure move forward, the author may wish to consider including appropriate government entities with the expertise needed to make these decisions.
2. Supreme Court Ruling. The United States Supreme Court recently ruled against affirmative action in higher education admissions in the combined cases of Students for Fair Admissions v. President and Fellows of Harvard (Docket No. 20-1199.) and Students for Fair Admissions v. University of North Carolina (Docket No. 21-707.). As a result, this ACA is more likely to have a difficult time withstanding scrutiny if challenged in federal court.
3. Two-thirds Legislative Approval and Statewide Ballot Approval Requirements. This measure requires the approval of two-thirds of the membership of each house in the Legislature and approval by a majority of voters at a statewide ballot election to ratify the changes to the constitution.

Analysis Prepared by: Jennifer Swenson / APPR. / (916) 319-2081

Date of Hearing: June 13, 2023

ASSEMBLY COMMITTEE ON JUDICIARY

Brian Maienschein, Chair

ABPCA Bill Id:ACA 7

Author:(Jackson) – As Amended Ver:May 18, 2023

As Proposed to be Amended

SUBJECT: Government preferences: interventions or programs: exceptions

KEY ISSUE: should California voters be asked to consider amending the state constitution to permit state moneys to fund research-based, or research-informed, and culturally specific programs based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations designed to improve outcomes for people in those groups?

SYNOPSIS

In 1996, as the nation was debating the merits of affirmative action programs, California voters approved Proposition 209 which amended the California Constitution to prohibit the state from discriminating against, or providing preferential treatment to, “any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Proposition 209 significantly hindered state government’s ability to directly assist marginalized communities with culturally-specific programs and forced the state to resort to broader and less effective programs to improve educational, career, other socio-economic outcomes for the most vulnerable Californians. Despite several attempts to either outright repeal or legislatively work-around Proposition 209, these efforts have been unsuccessful. Even more troubling, data is now highlighting the real impacts that Proposition 209 is having on marginalized communities.

Seeking to mitigate the worst impacts of Proposition 209, while not outright repealing the measure, this proposed constitutional amendment would clarify that the state can provide funding for scientifically proven and culturally-specific programs that help marginalized communities, even if the program only targets and benefits a specific group. Essentially, this would free up funding to help specific groups while retaining the prohibition on utilizing culturally specific factors in certain decision-making, a decision-making process presently facing increased scrutiny from the current Supreme Court on its own accord.

This measure is supported by various civil rights and education advocates, who highlight the need to close racial and gender gaps in education. They note that closing educational achievement gaps is a critical first step to achieving greater socio-economic equality in a whole range of areas of everyday life. As currently in print, the measure has no known opposition and was previously heard and approved by the Committee on Human Service by a vote of 6-2.

SUMMARY: Proposes to amend the California Constitution to explicitly authorize the state to fund research-based, or research-informed, and culturally specific programs to improve outcomes for persons based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations. Specifically, this constitutional amendment:

1. Authorizes, subject to approval by the Governor, the State to use state moneys to fund research-based, or research-informed, and culturally specific programs in any industry, including, but not limited to, public employment, public education, and public contracting, if those interventions or programs are established or otherwise implemented by the State for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.
2. Defines “state moneys” to mean all money, bonds, and securities possessed by the State itself.
3. Requires the Governor to review and approve or reject an application submitted to the Governor for purposes of 1) within 60 days of receiving the application. Requires the Governor, if the application is denied, to notify the applicant and publish on their internet website a message explaining the basis for the denial.
4. Defines “culturally specific program” to mean a program or practice that infuses the history, language, ancestry, traditions, and rituals of a specific race, color, ethnicity, national origin, religion, gender, sex, or sexual orientation into its design and implementation.
5. Defines “research-based program” to mean a program or practice that has been tested in a manner that meets all of the following conditions:
6. The test is conducted with a single randomized evaluation, a single statistically controlled evaluation, or both;
7. The test is inclusive and representative of the diverse populations in the state, based on the most recent census data; and,
8. The test demonstrates sustained desirable outcomes or the weight of the evidence from a systemic review of the test supports sustained outcomes.
9. Defines “research-informed program” to mean a program or practice that exercises the explicit and judicious use of the best available evidence from multiple sources that use disaggregated data to increase the likelihood of a favorable outcome.
10. Defines “disaggregated data” to mean data that has been broken down into detailed subcategories within ethnic groups, age, sexual orientation, and gender identity, with the intent of identifying the unique differences within groups and addressing more concentrated disparities facing specific subgroups.

EXISTING LAW:

1. Provides, in the United States Constitution, that no state make or enforce any law which abridges the privileges or immunities of citizens of the United States; nor can any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const., 14th Amend.)
2. Prohibits the State of California from discriminating against, or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (Cal. Const. art. I, Sec. 31.)
3. Provides that all persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. (Civil Code Section 51 (a).)

FISCAL EFFECT: As currently in print this constitutional amendment is keyed fiscal.

COMMENTS: In 1996, as the nation was debating the merits of affirmative action programs, California voters approved Proposition 209, which amended the California Constitution to prohibit the state from discriminating against, or providing preferential treatment to, “any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” (Cal. Const. art. I, Sec 31.) Proposition 209 essentially prohibited the state from developing programs aimed at helping one specific race or gender at the behest of others. This prohibition has been particularly impactful on educational programs seeking to close the achievement gap and on state contracting. This proposal seeks to amend the California Constitution to permit the state to fund programs that specifically improve outcomes for persons based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations, even if such a program only targets one marginalized group and not others. In support of this proposal the author states:

Proposition 209 severely limits the state’s ability to address systemic inequalities with proven best practices, further exacerbating disparities in public employment, public education, and public contracting.

ACA 7 will empower California’s Governor to approve applications from state and local entities to use state funds for the implementation of research-based, or research-informed, and culturally specific programs or interventions to increase the life expectancy of, improve educational outcomes for, or lift out of poverty specific ethnic groups or marginalized genders.

In California’s efforts to address the long-standing inequalities facing its most vulnerable populations, the Golden State cannot afford to have a hand tied behind its back.

Background on Proposition 209. Although not outright banning affirmative action, Proposition 209 significantly limited the government’s ability to create programs that benefitted certain marginalized communities. Indeed, as a result of the passage of Proposition 209, California courts have invalidated a wide range of programs designed to improve outcomes for marginalized communities, including women and minority-owned contracting provisions (Hi-Voltage Wire Works v. City of San Jose (2000) 24 Cal. 4th 537) and hiring preferences (Connerly v. State Personnel Board (2001) 92 Cal.App. 4th 16). However, the courts have been careful to note that programs that broadly encourage “diversity” are permissible, as long as no one racial group or gender is explicitly given preference. (Ibid.)

As a result of the prohibitions imposed by Proposition 209, the state’s tools to directly remedy inequality have been significantly limited. Accordingly, the Legislature has consistently sought to either legislate around, or outright repeal, Proposition 209. The most recent efforts concluded with 2020’s enactment of ACA 5 (Weber), Res. Chap. 23, Stats. 2020, which placed Proposition 16 on the November ballot seeking to repeal Proposition 209. However, the California electorate was unwilling to fully eliminate Proposition 209, as Proposition 16 failed with 57 percent of the electorate rejecting the measure.

Proposition 209 has exacerbated inequality in California. The failure of Proposition 16 was unfortunate given that a growing body of evidence suggests that Proposition 209 has resulted in significant harms to educational and economic success for marginalized communities. An August 2020 study by the University of California Berkeley’s Goldman School of Public Policy analyzed Proposition 209’s impact on student outcomes and found that the average underrepresented minority (URM) applicants' undergraduate and graduate degree attainment declined overall since its enactment, especially in “STEM” fields. (Zachary Bleemer, Affirmative Action, Mismatch, and Economic Mobility After California’s Proposition 209, UC Berkeley available at: https://cshe.berkeley.edu/publications/affirmative-action-mismatch-and-economic-mobility-after-california%E2%80%99s-proposition-209.) As a result, the average URM University of California applicant's wages declined by 5% percent annually between ages 24 and 34, almost wholly driven by declines among Latino applicants. The study further finds that, by the mid-2010s, Proposition 209 had caused at least a 3% cumulative decline in the number of early-career URM Californians earning over $100,000. (Ibid.) Proposition 209 also deterred thousands of qualified URM students from applying to any UC campus. The study concluded that enrolling at less-selective university campuses did not improve URM students' performance or persistence in STEM course sequences.

Furthermore, as noted by the Committee on Human Services’ analysis of this measure, impacts of Proposition 209 in education carry forward into the overall rate of poverty for marginalized communities in California. That Committee noted:

Data confirms that communities of color in California still suffer significantly higher rates of poverty relative to their White counterparts: specifically, 22.9% of Latino Californians suffer from poverty, along with 18.2% of Black Californians, compared to 12.8% of White Californians. Racial disparities in health outcomes persist for communities of color, most specifically the Black community, ranking last in California in life expectancy at birth at 75.1 [years], much lower than the state average of 81 [years]. Additionally, when comparing data from test scores of K-12 students prior to Prop 209 to the present, it is evident that the educational equity gap between Black, Hispanic, and White students has not been adequately addressed. While the gap between Black-White test scores and Hispanic-White test scores has narrowed, stark disparities in outcomes remain. (Assem. Hum. Serv. Com., analysis of ACA No. 7 (2023*2024 Reg. Sess. at p. 5.)

This measure’s proposed amendments to the California Constitution. This measure adopts a unique approach to resolving some of the worst impacts of Proposition 209. While not outright repealing Proposition 209, this amendment would authorize the state to fund scientifically-proven programs that help improve educational and other socio-economic outcomes even if that program is directed at a specific marginalized community. It should be noted that unlike 2020’s ACA 5, this measure would not wholly eliminate the prohibition on making certain government decisions to benefit one specific marginalized community. This split approach of permitting targeted funding, but maintaining limits on other types of decision-making, is deigned to be better appealing to the electorate while eliminating the worst impacts of Proposition 209.

Potential implementation challenges of this constitutional amendment as currently drafted. As currently in print, the proposed constitutional amendment would task the Governor with determining which programs would be eligible for direct state funding. This proposal also tasks the Governor with making a determination on a project application within 60 days. It is unclear if the Governor has either the capacity, or expertise to make such determinations. Typically, government grant funding decisions are made by administrative agencies, typically overseen by gubernatorial appointees (with input from the Governor’s office) that have subject-matter expertise in the area in which the funding is being directed. Alternative methods involve specialized boards or commissions with members from various areas of government. The second type of decision-making body is typically created in order to share decision-making power between various branches of government to ensure that decisions will not be drastically changed as a result of a single election changing the composition of the Legislature or who is Governor.

Given the somewhat controversial nature of decisions regarding funding programs that benefit one-specific marginalized community, dispersing funding decision-making power between various branches of government may be prudent to protect funding decisions from political whims. Accordingly, as this amendment progresses though the legislative process, the author may wish to consider amendments to provide that funding decisions are to be made by a board made up of representatives from both the executive and legislative branches of government.

A pending Supreme Court decision may impact the scope of this constitutional amendment. Given the controversial nature of affirmative action, unsurprisingly, the issue is pending before the United States Supreme Court in the combined cases of Students for Fair Admissions v. President and Fellows of Harvard (Docket No. 20-1199.) and Students for Fair Admissions v. University of North Carolina (Docket No. 21-707.). The critical legal issue on appeal in both cases is the status of race-conscious admissions in higher education under the United States Constitution.

How and if the US Supreme Court’s decision would affect this measure depends on how broad the decision is. Should the Supreme Court hold race-conscious admissions in higher education to violate the Constitution (as is widely expected given the political make-up of the Court), the impact of their decision on this proposal would likely be minimal as this proposal does not impact direct admission or job-related decision making. Such a narrow decision would unlikely hold that providing funding to assistance programs, for example those designed to boost and assist black students in applying to college, invalid given that funding assistance programs does not implicate race in the college’s ultimate admissions decisions.

However, since former-President Donald Trump’s three appointees to the Supreme Court have solidified the court’s conservative majority, the Supreme Court has shown a willingness to issue sweeping legal rulings that go beyond the somewhat narrow issues initially presented to the Court. Should this pattern repeat itself in the Students for Fair Admissions cases, the Court may issue a much broader ruling, invalidating the legality of a myriad of government programs that benefit marginalized communities. Should such a broad ruling occur, significant portions of this proposal may be deemed unconstitutional. Accordingly, as this measure advances, this Committee will continue to work with the author to ensure that the proposal is implementable, constitutional, and benefits as many Californians as possible.

Proposed technical amendment. As currently in print, this measure applies to “interventions or programs.” The current version of the amendment does not clearly define interventions; and when examined as a whole, this proposal focuses on funding programs, as opposed to more individualized “interventions.” Accordingly, for the purpose of clarity, the author proposes to delete the term “interventions” from the constitutional amendment to make it clear that the proposal applies only to funding programs aimed at assisting specific marginalized communities.

ARGUMENTS IN SUPPORT: This proposed constitutional amendment is supported by several civil rights and educational organizations. In support, the California-Hawaii State Conference of the NAACP writes:

While Proposition 209 serves as a clear and beneficial ban on discrimination, it also dramatically limits the state’s ability to address systemic inequalities with proven best practices, further exacerbating disparities in public employment, education, and contracting. Research shows that Proposition 209 has negatively affected outcomes for communities of color in public employment, education, and public contracting. In education and employment, a UC Berkeley Study found that as a result of Proposition 209, 10,000 annual underrepresented minority (URM) freshman applicants to the University of California (UC) System cascaded into lower-quality public and private universities.

The CA/HI NAACP’s principal objective is to ensure the political, educational, social, and economic equality of minority citizens in California and eliminate race prejudice.

The ability to use state funds to implement research-based or research-informed culturally specific programs or interventions to improve educational outcomes for, or lift out of poverty, specific ethnic groups or marginalized genders will significantly benefit our community. For these reasons, CA/HI NAACP proudly supports ACA 7.

Additionally, the California Teachers Association writes:

CTA is committed to racial and social justice for all, and to moving California closer toward collective liberation. Further, CTA believes that social justice includes, but is not limited to, political, educational, social, and economic equality and equity for all persons. ACA 7 will give us the tools to close opportunity gaps. It will lead to economic opportunity and growth, create a more equitable society, and increase access to health and educational services for all members of the state. Focus on culture helps address the unique needs of a community and can have long-term, positive impacts on their health, well-being, and economic security.

There are clear connections between education outcomes and life expectancy which can impact marginalized populations differently. This bill will facilitate targeting resources to ensure equity.

REGISTERED SUPPORT / OPPOSITION:

Support

California Federation of Teachers (if amended)

California Teachers Association
California-Hawaii State Conference of the NAACP
National Association of Social Workers, California Chapter
The Education Trust - West

Opposition

None on file

Analysis Prepared by: Nicholas Liedtke / JUD. / (916) 319-2334

Date of Hearing: June 6, 2023

ASSEMBLY COMMITTEE ON HUMAN SERVICES

Corey A. Jackson, Chair

ABPCA Bill Id:ACA 7 (

Author:Jackson) – As Amended Ver:May 18, 2023

SUBJECT: Government preferences: interventions or programs: exceptions

SUMMARY: Amends the California Constitution to allow the State to fund interventions or programs for the purpose of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups. Specifically, this Constitutional Amendment:

1. Authorizes, subject to approval by the Governor, the State to use state moneys to fund research-based, or research-informed, and culturally specific interventions or programs in any industry, including, but not limited to, public employment, public education, and public contracting, if those interventions or programs are established or otherwise implemented by the State for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.
2. Defines “state moneys” to mean all money, bonds, and securities possessed by the State itself.
3. Requires the Governor to review and approve or reject an application submitted to the Governor for purposes of 1) within 60 days of receiving the application. Requires the Governor, if the application is denied, to notify the applicant and publish on their internet website a message explaining the basis for the denial.
4. Defines “culturally specific intervention or program” to mean a program or practice that infuses the history, language, ancestry, traditions, and rituals of a specific race, color, ethnicity, national origin, religion, gender, sex, or sexual orientation into its design and implementation.
5. Defines “research-based intervention or program” to mean a program or practice that has been tested in a manner that meets all of the following conditions:
6. The test is conducted with a single randomized evaluation, a single statistically controlled evaluation, or both;
7. The test is inclusive and representative of the diverse populations in the state, based on the most recent census data; or,
8. The test demonstrates sustained desirable outcomes or the weight of the evidence from a systemic review of the test supports sustained outcomes.
9. Defines “research-informed intervention or program” to mean a program or practice that exercises the explicit and judicious use of the best available evidence from multiple sources that use disaggregated data to increase the likelihood of a favorable outcome.
10. Defines “disaggregated data” to mean data that has been broken down into detailed subcategories within ethnic groups, age, sexual orientation, and gender identity, with the intent of identifying the unique differences within groups and addressing more concentrated disparities facing specific subgroups.

EXISTING LAW:

1. Provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. This article is also known as the Equal Protection Clause. (United States Constitution, Article 14)
2. Prohibits the State of California from discriminating against, or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. (California Constitution, Article I, Section 31, enacted through Proposition 209 (1996))
3. Facilitates the operation of Article VII of the California Constitution to promote and increase economy and efficiency in the state service and to provide a comprehensive personnel system for the state civil service, in which:
4. Positions involving comparable duties and responsibilities are similarly classified and compensated;
5. Appointments are based upon merit and fitness ascertained through practical and competitive examination;
6. State civil service employment is made a career by providing for security of tenure and the advancement of employees within the service insofar as consistent with the best interests of the state;
7. The rights and interests of the state civil service employee are given consideration insofar as consistent with the best interests of the state;
8. Applicants and employees are treated in an equitable manner without regard to political affiliation, race, color, sex, religious creed, national origin, ancestry, marital status, age, sexual orientation, disability, political or religious opinions or nonjob-related factors; and,
9. Tenure of civil service employment is subject to good behavior, efficiency, the necessity of the performance of the work, and the appropriation of sufficient funds. (Government Code Section 18500)
10. Establishes in the California Constitution that the initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them. Authorizes an initiative measure to be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5% in the case of a statute, and 8% in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election. Requires the Secretary of State to then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. Permits the Governor to call a special statewide election for the measure. (California Constitution, Article II, Section 8)

FISCAL EFFECT: Unknown, this measure has not been analyzed by a fiscal committee.

COMMENTS:

Background: Proposition 209. In 1996, Proposition 209 (Prop 209) was placed on the ballot and approved by voters, by a nearly 55-45 margin, to amend the state constitution to provide, “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”  

As noted by the Legislative Analyst’s Office (LAO) in the 2020 Official Voter Information Guide:

“State and local entities can consider sex when it is necessary as part of normal operations. For example, the state can consider the sex of an employee when staffing specific jobs at state prisons where it is necessary for staff and inmates be the same sex. Additionally, state and local entities may consider specified characteristics when it is required to receive federal funding. For example, the state is required to set goals for the portion of contracts awarded to certain groups for federally funded transportation projects, like businesses owned by women and people of color.”

“Before Proposition 209, state and local entities had policies and programs intended to increase opportunities and representation for people who faced inequalities as a result of their race, sex, color, ethnicity, or national origin. These types of programs often are called ‘affirmative action’ programs. For example, some of the state’s public universities considered race and ethnicity as factors when making admissions decisions and offered programs to support the academic achievement of those students. State and local entities had employment and recruitment policies intended to increase the hiring of people of color and women. The state also established programs to increase the participation of women-owned and minority-owned businesses in public contracts. The state set goals for the portion of state contracts that were awarded to those types of businesses. After voters approved Proposition 209, these policies and programs were discontinued or modified unless they qualified for one of the exceptions.”

According to a 2002 publication from the Senate Office of Research (SOR) entitled Legal History of Proposition 209:

“A common misconception of the initiative was that it outlawed affirmative action. Affirmative action, which is not mentioned in the initiative’s wording, has different meanings for different people. To some, it is synonymous with preferences based on race or gender that are clearly illegal under Proposition 209. For others, the term speaks to positive actions taken to overcome the effects of past and current discrimination. The California codes contain a number of references to affirmative action concepts, programs and officers. Such references do not violate Proposition 209 unless the statute discriminates or grants preferential treatment on the basis of race, sex, color, ethnicity, or national origin.”

The SOR publication discusses the many legal cases that have ensued as a result of the passage of Prop 209 in an effort to define the scope of Prop 209. It concludes that while specific provisions of laws ordering affirmative action were invalidated in subsequent court cases, “the courts were careful to note that proactive steps to encourage diversity are permissible so long as they are consistent with Proposition 209.”

ACA 5 and Proposition 16. While there were numerous legislative attempts in the intervening years since Prop 209 was adopted to repeal provisions relating to public education, ACA 5 (Weber), Resolution Chapter 23, Statutes of 2020, was the first to be placed on the ballot since Prop 209 was approved by voters in 1996, and sought to repeal Prop 209 in its entirety. Specifically, ACA 5 would have permitted government decision-making policies to consider race, sex, color, ethnicity, or national origin to address diversity by repealing Article I, Section 31, of the California Constitution, which was added by Proposition 209 in 1996.

While Prop 209 generally prohibits state and local governments from discriminating against, or granting preferential treatment to, individuals or groups on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, education, or contracting, it does not alter other state and federal laws guaranteeing equal protection and prohibiting unlawful discrimination. According to the LAO:

“The federal, state, and local governments run many programs intended to increase opportunities for various groups -- including women and racial and ethnic minority groups. These programs are commonly called "affirmative action" programs. For example, state law identifies specific goals for the participation of women-owned and minority-owned companies on work involved with state contracts. State departments are expected, but not required, to meet these goals, which include that at least 15 percent of the value of contract work should be done by minority-owned companies and at least 5 percent should be done by women-owned companies. The law requires departments, however, to reject bids from companies that have not made sufficient "good faith efforts" to meet these goals.”

As a result of ACA 5 being adopted by the Legislature, and Chaptered by the Secretary of State, Proposition 16 was placed on the ballot, but was ultimately rejected with 57% of California’s electorate voting to keep Prop 209’s provisions in place.

Author’s Statement: According to the author, “Proposition 209 severely limits the state’s ability to address systemic inequalities with proven best practices, further exacerbating disparities in public employment, public education, and public contracting. [This measure] will empower California’s Governor to approve applications from state and local entities to use state funds for the implementation of research-based, or research-informed, and culturally specific programs or interventions to increase the life expectancy of, improve educational outcomes for, or lift out of poverty specific ethnic groups or marginalized genders. In California’s efforts to address the long-standing inequalities facing its most vulnerable populations, the Golden State cannot afford to have a hand tied behind its back.”

Need for this bill: This bill seeks to create a process by which the Governor could allow

the State to use state moneys to fund research-based, or research-informed, and culturally specific interventions or programs including within public employment, public education, and public contracting, if those programs have been demonstrated to increase the life expectancy of, improve educational outcomes for, or lift out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.

Equity Implications: Research has demonstrated that educational attainment, income, wealth, and economic mobility exhibit significantly persistent racial disparities in the United States. Access to selective universities is a key determinant of economic success and intergenerational mobility. An August 2020 University of California (UC) Berkeley Goldman School of Public Policy publication entitled, Affirmative Action, Mismatch, and Economic Mobility After California’s Proposition 209 by Zachary Bleemer, analyzed Prop 209’s impact on student outcomes and found that the average underrepresented minority (URM) applicants' undergraduate and graduate degree attainment declined overall and in STEM fields, especially among lower-testing applicants. As a result, the average URM UC applicant's wages declined by 5% percent annually between ages 24 and 34, almost wholly driven by declines among Latino applicants. The study further finds that, by the mid-2010s, Prop 209 had caused at least a 3% cumulative decline in the number of early-career URM Californians earning over $100,000. Prop 209 also deterred thousands of qualified URM students from applying to any UC campus. The study concluded that enrolling at less-selective UC campuses did not improve URM students' performance or persistence in STEM course sequences.

Furthermore, a report conducted by the Equal Justice Society found that Prop 209 caused the state and local governments to end their race-conscious contracting programs, costing minority and women business enterprises over $1 billion annually.

Data confirms that communities of color in California still suffer significantly higher rates of poverty relative to their White counterparts: specifically, 22.9% of Latino Californians suffer from poverty, along with 18.2% of Black Californians, compared to 12.8% of White Californians. Racial disparities in health outcomes persist for communities of color, most specifically the Black community, ranking last in California in life expectancy at birth at 75.1, much lower than the state average of 81. Additionally, when comparing data from test scores of K-12 students prior to Prop 209 to the present, it is evident that the educational equity gap between Black, Hispanic, and White students has not been adequately addressed. While the gap between Black-White test scores and Hispanic-White test scores has narrowed, stark disparities in outcomes remain.

This constitutional amendment might allow California to implement more programs that have been demonstrated to increase the life expectancy of, improve educational outcomes for, or lift out of poverty, specific marginalized populations which would benefit all Californians.

Policy Considerations: While it is important to address disparities and the negative impacts of Prop 209 on California’s population, this measure may benefit from additional details as it relates to the application process. The author’s stated intent is to allow state moneys to fund research-based, or research-informed, and culturally specific interventions or programs for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty, specific groups which is critical in creating an equitable society.

This measure is vague about the details of the application and does not mention a process nor any criteria that would be used for approval or denial. Should this measure move forward, in order to create an equitable process and application, the author may wish to establish a formal application process that includes details regarding the type of information that would be required, along with who would have the authority to create said application.

While it is important to create streamlined processes to ensure efficiency in government, this measure gives a singular person, who may not have the expertise required, the authority to approve or deny already-appropriated state funds for specific programs. Should this measure move forward, the author may wish to consider directing appropriate government entities with the expertise needed to make these important decisions.

Double referral: Should this measure pass out of this Committee, it will be referred to the Assembly Judiciary Committee.

RELATED AND PRIOR LEGISLATION:

ACA 5 (Weber), Resolution Chapter 23, Statutes of 2020, proposed to amend the California Constitution by repealing Section 31 of Article I relating to the prohibition of the State to discriminate against or grant preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. ACA 5 was placed on the ballot as Proposition 16 in November of 2020, and failed with 43% voting yes and 58% voting no.

SCA 5 (Hernandez) of 2013, proposed to amend the situation to be placed before the voters to remove provisions implemented through Prop 209 relating to public education. SCA 5 was passed by the Senate, and after submittal to the Assembly for consideration, was returned to the Senate without a vote from the Assembly.

SB 185 (Hernandez) of 2011, stated legislative intent to authorize the California State University (CSU) and the UC to consider race, gender, ethnicity and national origin, geographic origin, and household income, along with other relevant factors, in undergraduate and graduate admissions, as specified, and required the CSU and requests the UC to report on the implementation of these provisions to the Legislature and Governor by November 1, 2013, as specified. SB 185 was vetoed by Governor Brown who stated:

“I wholeheartedly agree with the goal of this legislation. Proposition 209 should be interpreted to allow UC and CSU to consider race and other relevant factors in their admissions policies to the extent permitted under the Fourteenth Amendment of the United States Constitution. In fact, I have submitted briefs in my capacities as both Governor and Attorney General strongly urging the courts to adopt such an interpretation.

“But while I agree with the goal of this legislation, I must return the bill without my signature. Our constitutional system of separation of powers requires that the courts -- not the Legislature -- determine the limits of Proposition 209. Indeed, there is already a court case pending in the 9th Circuit against the State and the UC on the same issues addressed in this bill. Signing this bill is unlikely to impact how Proposition 209 is ultimately interpreted by the courts; it will just encourage the 209 advocates to file more costly and confusing lawsuits.”

ACA 23 (Hernandez) of 2009, established an exemption from the California Constitutional prohibition granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in public education for the purposes of implementing student recruitment and selection programs at public postsecondary education institutions that are permissible under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. ACA 23 passed the Assembly Committee on Higher Education and was referred to the Assembly Committee on Judiciary but was not set for hearing.

AB 1452 (Nunez) of 2005, as passed by the Assembly, AB 1452 authorized the UC and CSU to consider race, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, in undergraduate and graduate admissions, so long as no preference is given and such consideration takes place if and when the university, campus, college, school, or program is attempting to obtain educational benefit through the recruitment of a multi-factored, diverse student body. AB 1425 was substantially amended in the Senate on June 22, 2006, to address an unrelated subject.

AB 2387 (Firebaugh) of 2004, was substantially similar to AB 1452 as passed by the Assembly. AB 2387 was vetoed by Governor Schwarzenegger who stated that the provisions of AB 2387 would likely be ruled as unconstitutional. However, prior to the Governor's action on the bill, Legislative Counsel offered Opinion #7053 (April 19, 2004) stating "if adopted and enacted, the amendment to Section 66205 of the Education Code, as proposed by Assembly Bill No. 2387, as amended March 22, 2004, would not violate Section 31 of Article 1 of the California Constitution."

REGISTERED SUPPORT / OPPOSITION:

Support

California Teachers Association

California-Hawaii State Conference of the NAACP

National Association of Social Workers, California Chapter

The Education Trust - West

Opposition

None on file

Analysis Prepared by: Jessica Langtry / HUM. S. / (916) 319-2089