The California Constitution, pursuant to provisions enacted by the Proposition 209, an initiative measure adopted by the voters at the November 5, 1996, statewide general election, 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, as specified.

This measure, the Closing the Student Opportunity and Achievement Gap Act, would, instead, limit the above prohibition to the operation of public employment, public higher education admissions and enrollment, and public contracting. The measure would require that it appear on the ballot at the November 7, 2028, statewide general election.

The California Constitution, pursuant to provisions enacted by the Proposition 209, an initiative measure adopted by the voters at the November 5, 1996, statewide general election, 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, as specified.

This measure, the Closing the Student Opportunity and Achievement Gap Act, would, instead, limit the above prohibition to the operation of public employment, public higher education admissions and enrollment, and public contracting. The measure would require that it appear on the ballot at the November 7, 2028, statewide general election.

The California Constitution, pursuant to provisions enacted by the Proposition 209, an initiative measure adopted by the voters at the November 5, 1996, statewide general election, 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, as specified.

This measure measure, the Closing the Student Opportunity and Achievement Gap Act, would, instead, limit the above prohibition to the operation of public employment, public higher education admissions and enrollment, and public contracting. The measure would require that it appear on the ballot at the November 7, 2028, statewide general election.

The California Constitution, pursuant to provisions enacted by the Proposition 209, an initiative measure adopted by the voters at the November 5, 1996, statewide general election, 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, as specified.

This measure would, instead, limit the above prohibition to the operation of public employment, higher education admissions and enrollment, and public contracting. The measure would require that it appear on the ballot at the November 7, 2028, statewide general election.

The California Constitution, pursuant to provisions enacted by the Proposition 209, an initiative measure adopted by the voters at the November 5, 1996, statewide general election, 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, as specified.

This measure would, instead, limit the above prohibition to the operation of public employment, higher education admissions and enrollment, and public contracting. The measure would require that it appear on the ballot at the November 7, 2028, statewide general election.

The California Constitution, pursuant to provisions enacted by the Proposition 209, an initiative measure adopted by the voters at the November 5, 1996, statewide general election, 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, as specified.

This measure would, instead, limit the above prohibition to the operation of public employment, higher education admissions and enrollment, and public contracting.

The California Constitution, pursuant to provisions enacted by the Proposition 209, an initiative measure adopted by the voters at the November 5, 1996, statewide general election, 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, as specified.

This measure would, instead, limit the above prohibition to the operation of public employment, higher education enrollment, and public contracting.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202526 Regular Session commencing on the second day of December 2024, 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, and that this measure shall appear on the ballot at the November 7, 2028, statewide general election:

This measure shall be known, and may be cited, as the Closing the Student Opportunity and Achievement Gap Act.

The Legislature finds and declares both of the following:

(1)Documented, persistent, racial equity gaps in educational opportunity and outcomes in Californias transitional kindergarten to 12th grade, inclusive, public schools and community colleges undermine equal educational access and the States ability to provide all students with a meaningful opportunity to succeed because current race-neutral alternatives have failed to close the racial equity gap in educational opportunity and success in Californias public schools.

(2)Therefore, to the maximum extent permitted by federal law and the United States Constitution, the State has a compelling governmental interest in closing those racial equity gaps in California schools through race-conscious, evidence-based measures that expand educational opportunity and eliminate barriers to access and success, provided that nothing herein shall be construed to authorize 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 violation of this section of the State Constitution or in violation of the United States Constitution.

(a)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 higher education admissions and enrollment, or public contracting.

(b)This section shall apply only to action taken after the sections effective date and is limited to the areas of public employment, public higher education admissions and enrollment, and public contracting.

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

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

(e)This section shall not be interpreted as prohibiting action that must be taken to maintain or establish 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 shall include, but 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.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202526 Regular Session commencing on the second day of December 2024, 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, and that this measure shall appear on the ballot at the November 7, 2028, statewide general election:

This measure shall be known, and may be cited, as the Closing the Student Opportunity and Achievement Gap Act.

The Legislature finds and declares both of the following:

(1)Documented, persistent, racial equity gaps in educational opportunity and outcomes in Californias transitional kindergarten to 12th grade, inclusive, public schools and community colleges undermine equal educational access and the States ability to provide all students with a meaningful opportunity to succeed because current race-neutral alternatives have failed to close the racial equity gap in educational opportunity and success in Californias public schools.

(2)Therefore, to the maximum extent permitted by federal law and the United States Constitution, the State has a compelling governmental interest in closing those racial equity gaps in California schools through race-conscious, evidence-based measures that expand educational opportunity and eliminate barriers to access and success, provided that nothing herein shall be construed to authorize 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 violation of this section of the State Constitution or in violation of the United States Constitution.

(a)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 higher education admissions and enrollment, or public contracting.

(b)This section shall apply only to action taken after the sections effective date and is limited to the areas of public employment, public higher education admissions and enrollment, and public contracting.

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

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

(e)This section shall not be interpreted as prohibiting action that must be taken to maintain or establish 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 shall include, but 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.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202526 Regular Session commencing on the second day of December 2024, 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, and that this measure shall appear on the ballot at the November 7, 2028, statewide general election:

(a)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 higher education admissions and enrollment, or public contracting.

(b)This section shall apply only to action taken after the sections effective date and is limited to the areas of public employment, public higher education admissions and enrollment, and public contracting.

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

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

(e)This section shall not be interpreted as prohibiting action that must be taken to maintain or establish 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 shall include, but 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.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202526 Regular Session commencing on the second day of December 2024, 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, and that this measure shall appear on the ballot at the November 7, 2028, statewide general election:

(a)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, higher education admissions and enrollment, or public contracting.

(b)This section shall apply only to action taken after the sections effective date and is limited to the areas of public employment, higher education admissions and enrollment, and public contracting.

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

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

(e)This section shall not be interpreted as prohibiting action that must be taken to establish or maintain maintain or establish 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 shall include, but 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.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202526 Regular Session commencing on the second day of December 2024, 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: follows, and that this measure shall appear on the ballot at the November 7, 2028, statewide general election:

(a)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, higher education admissions and enrollment, or public contracting.

(b)This section shall apply only to action taken after the sections effective date and is limited to the areas of public employment, higher education admissions and enrollment, and public contracting.

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

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

(e)This section shall not be interpreted as prohibiting action 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.

(f)For the purposes of this section, State shall include, but 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.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202526 Regular Session commencing on the second day of December 2024, 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 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, higher education admissions and enrollment, or public contracting.

(b)This section shall apply only to action taken after the sections effective date and is limited to the areas of public employment, higher education admissions and enrollment, and public contracting.

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

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

(e)This section shall not be interpreted as prohibiting action 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.

(f)For the purposes of this section, State shall include, but 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.

Resolved by the Assembly, the Senate concurring, That the Legislature of the State of California at its 202526 Regular Session commencing on the second day of December 2024, 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 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, higher education enrollment, or public contracting.

(b)This section shall apply only to action taken after the sections effective date. date and is limited to the areas of public employment, higher education enrollment, and public contracting.

(c)Nothing in this 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, higher education enrollment, or public contracting.

(d)Nothing in this 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)Nothing in this 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.

(f)For the purposes of this section, State shall include, but 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.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:ACA 7

Author:(Jackson)

As Amended Ver:August 13, 2026

2/3 vote

SUMMARY

Amends the California State Constitution, upon approval of the voters of California, to narrow the scope of the State′s prohibition in granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin to the areas of public employment, public higher education admission and public higher education enrollment, and public contracting.

Senate Amendments

1. Specifies that the measure will appear on the November 7, 2028, general election ballot.
2. Adds multiple co-authors to the measure.
3. Clarifies the "higher education admission and enrollment" as referenced in the measure is public higher education admission and enrollment.
4. Adds finding and declarations to the measure stating that the intention of the legislation is to close racial equity gaps in California public education by expanding educational opportunities and eliminating barriers to access and success.
5. Names the constitutional amendment as the "Closing the Student Opportunity and Achievement Gap Act."

COMMENTS

Background on Proposition 209. Heralded as the a first step in providing a free and equal society, the passing of the Civil Rights Act of 1964 was only one part of the Federal Government′s approach to guaranteeing equal treatment for every American. In addition to the passing of the landmark act, President Lyndon Johnson issued Executive Order 11246 requiring the federal government to take affirmative action to address previously discriminatory practices in the hiring and employing of marginalized individuals underrepresented in public employment. Over the next few decades, Federal agencies and State governments introduced affirmative action policies to provide greater access to educational and employment opportunities for historically marginalized groups affected by systemic discrimination. Affirmative action initiatives are ″any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future.″

Over the next few decades various court cases including Regents of University of California v. Bakke (1978) 438 U.S. 265, challenged the scope of affirmative action initiatives and the public discord became politically charged with many believing affirmative action was ″reverse discrimination.″ In the wake of growing concern around the correlation between affirmative action and discrimination, the University of California (UC) Board of Regents passed the country′s first affirmative action ban in 1995, ending the practice of using race, religion, sex, color, ethnicity, or national origin as a criterion in admissions, contracting, and hiring practices at the UC. In the wake of the UC decision, California became the first state to place a proposition on the ballot to create a ″prohibition against discrimination or preferential treatment by the state and other public entities.″

According to the Legislative Analyst′s Office, Proposition 209 would ″eliminate state and local government affirmative action programs in the areas of public employment, public education, and public contracting to the extent these programs involve ′preferential treatment′ based on race, sex, color, ethnicity, or national origin.″ In higher education, the proposition would impact a variety of assistance programs for students, faculty and staff that provided targeted assistance to individuals based on individuals. These targeted programs included specialized tutoring, financial aid, outreach, and counseling.

In November 1996, Proposition 209 passed with a majority voting (54.55%) in favor of the constitutional amendment. In the intervening years, a myriad studies reported the outcomes Proposition 209 had on public contracting, public employment, and public education. In 2008, the Thelton E. Henderson Center for Social Justice published a report entitled, ″Proposition 209 and Public Employment in California Trends in Workforce Diversity,″ which determined:

″the State of California has provided employment opportunities for people of color and women of all races. However lingering and even increased disparity still exists, particularly for Latino Americans and women, and should be rectified.″

Research on college admissions showed an almost immediate disproportionality in the admission of minority students to the UC. However, it is unclear if this disparity can solely be attributed to the impact of Proposition 209 on admissions, as there is a ″substantial difference in the share of high school students completing the college preparatory courses required for UC admission.″

In January 2015, a study conducted by Equal Justice Society, found Proposition 209 resulted in an annual loss of $1 billion in revenue for minority and women business enterprises due to the end of race-conscious contracting programs.

Since 1996, there have been four legislative attempts to either repeal or reduce the scope of Proposition 209 on public contracting, public education, and public employment. Of the four attempts only one has made it onto the ballot. In 2020, ACA 5 (Weber), Chapter 23, Statues of 2020 or Proposition 16 sought to repeal the provisions of Proposition 209. Proposition 16 failed with the majority of Californians voting to uphold the existing ban on discrimination and preferential treatment in State operations of public employment, public contracting, and public education.

ACA 7 implications on public education. ACA 7 (Jackson) would provide an opportunity for voters to re-examine the scope of Proposition 209 and to align the California Constitutional Article with a recent U.S. Supreme Court decision on collegiate admissions. In 2023, the U.S. Supreme Court determined the admissions programs at Harvard College and the University of North Carolina violated the equal protections clause of the 14^th Amendment of the U.S. Constitution when colleges considered race as a criterion in admission decisions. The decision effectively ended affirmative action in admissions across the United States; except for in California, where Proposition 209 already prohibited the public university system from using race as a criteria for admissions.

Currently, Proposition 209 applies to more than just admissions and enrollment in higher education. The prohibition on discriminatory practices and preferential treatment based on race, sex, color, ethnicity, or national origin includes every aspect of higher education operations funded by the State. Since the enactment of Proposition 209, public higher education institutions have sought to comply while also providing for a diverse student population through the creation of diversity, equity, and inclusion programs. Examples of diversity, equity, and inclusion program programs created to encourage a diverse student population include: Umoja, Puente, the Asian American, Native Hawaiian, and Pacific Islander Student Achievement Program, and the Native American Student Support and Success Program. Each of these programs receive state funds and provide additional supports to marginalized student groups; however, these programs are not perceived as violating Proposition 209 as the programs are not exclusionary in who they support. Additionally, admission officers at the California State University (CSU) and UC have also practiced applying diversity, equity, and inclusionary practices to admissions in order to avoid Proposition 209 violations. Both university systems have adopted a holistic approach, which considers the applicants full history taking into account systemic barriers a student may have encountered and overcome.

ACA 7 (Jackson) removes public education from the list of State operations expressly prohibited by the California Constitution from discriminating against or providing preferential treatment based on certain characteristics; however, it would not remove the legal obligation for public education entities to comply with State and Federal Civil Rights Laws. Proposition 209 is not an isolated law in its prohibition against discriminatory practices. Even if, ACA 7 (Jackson) were to pass the Legislature and the voters of California were to affirm the language, the measure would not result in discriminatory practices or preferential treatment for individuals based on race, sex, gender, ethnicity, or national origin in the operations of public education. Nor would the measure result in the return of affirmative action programs to K-12 local education agencies or public higher education agencies.

Please see the policy committee′s analysis for a full discussion of this bill.

According to the Author

As described by the author, ″ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes a modest adjustment to focus specifically on ′higher education enrollment.′ These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.″

Arguments in Support

As stated by EdTrust – West, ″this measure would amend the California constitution to permit use of race in public education policy, excluding higher education enrollment. As explained in our recent publication ″Black Minds Matter,″ (Black Minds Matter: Building Bright Black Futures) research and data on public education show significant racial disparities in opportunity and achievement. In many cases, these disparities are rooted in race. ACA 7 recognizes this and would permit targeted, research-based interventions that improve educational outcomes. Without ACA 7, we′ll continue to struggle to close opportunity and achievement gaps as no effective proxy for race has been found to target educational interventions and resources.″

Arguments in Opposition

As stated by the Pacific Legal Foundation, ″While ACA 7 preserves the prohibition on discrimination in higher education enrollment, it will permit the government to discriminate in all aspects of K-12 education and all other aspects pertaining to colleges and universities. This uneven and inconsistent preservation of equality and opportunity fails to fully live up to the guarantee of the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Adherence to the Fourteenth Amendment mandates that ′[e]liminating racial discrimination means eliminating all of it.′ It is thus insufficient under our constitution that government cannot discriminate in higher education enrollment but can discriminate everywhere else. Opposing ACA 7 will uphold the promise of equality that Proposition 209 protects. Since the passage of Proposition 209, Californians have consistently given strong support to the constitutional prohibition on racial preferences and discrimination. In 2020, Californians defeated Proposition 16 in a landslide, rejecting an amendment to repeal Proposition 209. And in 2024, an attempt to permit broad exceptions to Proposition 209 was unsuccessful when the Legislature failed to pass ACA 7.″

FISCAL COMMENTS

According to the Senate Committee on Appropriations:

1. This bill could result in additional, unknown Proposition 98 General Fund cost pressures for the state or K-12 local educational agencies (LEAs) to enact policies and programs providing preferential treatment on the basis of race, sex, color, ethnicity, or national origin. However, these costs are difficult to quantify because the bill does not necessarily require any changes to current policies or programs. The exact costs would depend on any decisions that are made by the state or LEAs with respect to the implementation of policies or programs that consider race, sex, color, ethnicity, or national origin.
2. This measure would result in one-time General Fund costs to the Secretary of State (SOS) in the range of $738,000 to $984,000, likely in 2028-29, 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.

VOTES:

ASM HIGHER EDUCATION: 6-3-1

YES: Fong, Boerner, Jackson, Muratsuchi, Celeste Rodriguez, Sharp-Collins

NO: DeMaio, Jeff Gonzalez, Tangipa

ABS, ABST OR NV: Patel

ASM JUDICIARY: 9-3-0

YES: Kalra, Bauer-Kahan, Bryan, Connolly, Harabedian, Pacheco, Papan, Stefani, Zbur

NO: Dixon, Macedo, Sanchez

ASM APPROPRIATIONS: 11-4-0

YES: Wicks, Stefani, Calderon, Caloza, Fong, Mark González, Krell, Bauer-Kahan, Pacheco, Pellerin, Solache

NO: Hoover, Dixon, Ta, Tangipa

ASSEMBLY FLOOR: 54-14-12

YES: Aguiar-Curry, Ahrens, Alvarez, Arambula, Ávila Farías, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Calderon, Caloza, Carrillo, Connolly, Elhawary, Fong, Gabriel, Garcia, Gipson, Mark González, Haney, Harabedian, Hart, Irwin, Jackson, Kalra, Krell, Lee, Lowenthal, McKinnor, Muratsuchi, Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Ransom, Michelle Rodriguez, Rogers, Blanca Rubio, Schultz, Sharp-Collins, Solache, Soria, Stefani, Valencia, Ward, Wicks, Wilson, Zbur, Rivas

NO: Castillo, Chen, Davies, DeMaio, Jeff Gonzalez, Hadwick, Hoover, Johnson, Macedo, Patterson, Sanchez, Ta, Tangipa, Wallis

ABS, ABST OR NV: Addis, Alanis, Bains, Bryan, Dixon, Ellis, Flora, Gallagher, Lackey, Patel, Celeste Rodriguez, Schiavo

UPDATED

VERSION: August 13, 2026

CONSULTANT: Ellen Cesaretti-Monroy / HIGHER ED. / (916) 319-3960 FN: 0004361

 THIRD READING  

Bill No: ACA 7

Author: Jackson (D), et al.

Amended: 8/13/26 in Senate

Vote: 27

SENATE EDUCATION COMMITTEE: 5-2, 6/3/26

AYES: Pérez, Cabaldon, Cortese, Gonzalez, Reyes

NOES: Ochoa Bogh, Choi

SENATE ELECTIONS & C.A. COMMITTEE: 4-1, 6/9/26

AYES: Wiener, Allen, Cervantes, Umberg

NOES: Choi

SENATE APPROPRIATIONS COMMITTEE: 4-2, 8/13/26

AYES: Cervantes, Cabaldon, Grayson, Richardson

NOES: Seyarto, Dahle

NO VOTE RECORDED: Wahab

ASSEMBLY FLOOR: 54-14, 2/19/26 - See last page for vote

SUBJECT: Government preferences

SOURCE: Author

DIGEST:

This Constitutional Amendment, if approved by voters, would amend the California Constitution to replace “public education” with “public higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin. The measure requires that it appear on the statewide general election ballot on November 7, 2028.

ANALYSIS:

Existing law pursuant to the United States Constitution:

1. Declares all people born or naturalized in the United States are citizens of the United States and are citizens of the state where they reside. Prohibits any state from making or enforcing any law that abridges the privileges or immunities of citizens of the United States. Prohibits any state from depriving any person of life, liberty, or property, without due process of law. Prohibits any state from denying any person within its jurisdiction the equal protection of the law. (United States Constitution (USC), Amendment 14, the Equal Protection Clause)

Existing Federal law:

1. No person in the United States will, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance except for specified circumstances, including membership of fraternities and sororities. (20 USC 1681-168 Title IX)
2. Prohibits discrimination on the basis of race, color, or/and national origin in programs and activities receiving federal assistance. (42 USC 2000d et seq., Title VI of the Civil Rights Act of 1964)
3. Prohibits discrimination in employment based on race, color, religion, sex, or national origin and prohibits retaliation against employees who invoke their rights under Title VII of the Civil Rights Act of 1964. (42 USC 2000e Title VII of the Civil Rights Act)

Existing law, pursuant to the California State Constitution:

1. States that a person is not to be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. (Section 7 of Article 1 of the California State Constitution)
2. Prohibits the State, in the operation of public employment, public education, or public contracting, from discriminating against or granting preferential treatment to any individual or any group on the basis of race, sex, color, ethnicity, or national origin. States the implementation is to comply with federal laws and the USC and defines the “state” to include the public university system (including the University of California (UC)). Nothing in the aforementioned clause is to be interpreted as:
   1. Prohibiting bona fide qualifications based on sex, which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
   2. 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.
   3. Invalidating any court order or consent decree, which is in force as of the effective date of the section. (Section 31 of Article 1 of the California State Constitution (Proposition 209))

Existing State law:

1. Establishes the Donahoe Higher Education Act, setting forth the mission of the UC, California State University (CSU), and California Community Colleges (CCC); and, defines “independent institutions of higher education” as nonpublic higher education institutions that grant undergraduate degrees, graduate degrees, or both, and that are formed as nonprofit corporations in California and are accredited by an agency recognized by the United States Department of Education. (Education Code (EC) Section 66010, et seq.)
2. States that no person is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes, as defined in subdivision (a) of Section 422.6 of the Penal Code, including immigration status. States the prohibition on the discrimination on the basis of the listed characteristics is extended to programs or activities conducted by any postsecondary education institution that receives or benefits from, state financial assistance or enrolls students who receive state financial aid. (EC § 66270)
3. States that no person is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or enrolls pupils who receive state student financial aid. (EC § 220)

This measure:

1. Amends the California State Constitution, upon approval of the voters of California, by replacing “public education” with “public higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin. Specifically, it:
   1. Removes “public education” from the list of activities which are

prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.

• 1. Adds “public higher education admission and enrollment” to the list

of activities which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.

• 1. States that the prohibition on discrimination and the granting of

preferential treatment only apply to actions of the State after the section’s effective date and is limited to the areas of public employment, higher education admission and enrollment, and public contracting.

• 1. Requires that the measure appear on the ballot at the November 7,

2028 statewide general election.

• 1. Makes various legislative findings and declarations regarding racial

equity gaps.

• 1. Makes various technical and clarifying changes.

Comments

1. Need for the bill. According to the author, “ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes an adjustment to focus specifically on “higher education admissions and enrollment.” These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.”
2. Proposition 209. Proposition 209, approved by voters in 1996, added Article 1, Section 31 to the California Constitution, prohibiting discrimination against or granting preferential treatment to individuals or groups on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting. Proposition 209 did not replace broader anti-discrimination protections, as state and federal constitutional equal protection guarantees and other civil rights laws continue to apply independently (outlined in the background section of this analysis). Seemingly, Proposition 209 serves as an additional constitutional limitation rather than the sole source of anti-discrimination protection. As noted in the Assembly Judiciary Committee analysis, “the language prohibiting discrimination was largely superfluous, given that the state and federal law as well as the equal protection clause of 14th Amendment, already prohibited such discrimination. What Proposition 209 effectively did was to prohibit preferential treatment which is generally understood to mean either setting quotas or, considering race as a one factor among many in someone’s qualification.”

Proposition 209 restricted affirmative action programs involving preferential treatment in the prescribed areas. According to the Legislative Analyst’s Office (LAO) in their review of Proposition 16 in 2020, prior to 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. After the adoption of Proposition 209, for higher education, this meant public colleges and universities could no longer consider those characteristics in admission decisions or operate certain programs specifically designed to increase access, representation, or support for historically underrepresented student groups. After voters approved Proposition 209, some public universities created or modified policies and programs to instead consider characteristics not banned by Proposition 209.

1. Related ballot measure. In 2020, the Legislature approved ACA 5 (Weber, Chapter 23, Statutes of 2020), which asked voters for full repeal of Proposition 209. ACA 5 was placed before California voters as Proposition 16 on the November 3, 2020, statewide general election ballot, where it failed passage with 57 percent of voters voting NO. The LAO noted in its fiscal analysis of the ballot measure, that it would have no direct fiscal effect on state and local entities because the measure would not require any change to current policies or programs. Instead, any fiscal effects would depend on future choices by state and local entities to implement policies or programs that consider race, sex, color, ethnicity, or national origin in public education, public employment, and public contracting.

This measure, ACA 7, proposes a more targeted change to Proposition 209, limiting its application in public education to public higher education admission and enrollment, thereby removing other K-12 and higher education activities from its scope.

According to the Assembly Judiciary Committee Analysis, “While leaving “higher education admissions and enrollment” in Article I, Section 31 is consistent with existing case law, it remains to be seen whether policies permitted under this proposed constitutional provision would violate the equal protection clause of the 14th Amendment. To be clear, this measure would not – indeed, could not – by itself violate the equal protection clause; because it does not by itself discriminate against, or grant a preference to, any individual or group. It simply declares what the state cannot do; it does not say what it can or must do. The opponents of this measure, therefore, are apparently concerned that this proposed change in the state constitution might permit policies that violate the equal protection clause. If the intent of the measure is to permit K-12 to discriminate on the basis of race, or permit colleges and universities to discriminate on the basis of race in everything other than admissions and enrollment, those polices might pass constitutional muster under the state constitution, as revised, but those policies might still violate the equal protection clause of the 14th Amendment, at least as interpreted by the U.S. Supreme Court in Students for Fair Admissions.”

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee analysis, this bill would have the following fiscal impact:

• This bill could result in additional, unknown Proposition 98 General Fund cost pressures for the state or K-12 local educational agencies (LEAs) to enact policies and programs providing preferential treatment on the basis of race, sex, color, ethnicity, or national origin. However, these costs are difficult to quantify because the bill does not necessarily require any changes to current policies or programs. The exact costs would depend on any decisions that are made by the state or LEAs with respect to the implementation of policies or programs that consider race, sex, color, ethnicity, or national origin.
• This measure would result in one-time General Fund costs to the Secretary of State (SOS) in the range of $738,000 to $984,000, likely in 2028-29, 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.

SUPPORT: (Verified 8/15/26)

A2MEND

Advanced Consulting, LLC

Berkeley Reparations Coalition

Black Educator Advocates Network

Black Parallel School Board

Black Students of California United

BLU Educational Foundation

Bulletproof Group

Californians for Justice

Californians Together

Canal Alliance

CCHALES Research Collective

Center for Black Educator Development

Central Valley Movement Building Organizing Institute

Children Now

Chinese for Affirmative Action

Community Schools Learning Exchange

Congregations Organized for Prophetic Engagement

EdTrust-West

EdVoice

Grand Performances

Hispanas Organized for Political Equality

Immigrants Rising

Innercity Struggle

Island Grad and SBCUSD Pasifika Program

KHK Solutions LLC

Little Manila Rising

Los Angeles Urban Foundation

Mission Graduates

National Equity Project

Northern California College Promise Coalition

Parent Engagement Academy

Partnership for Los Angeles Schools

Prismatic Research & Strategy

Public Advocates

SoCal Pacific Islander Community Response Team

Southeast Asia Resource Action Center

Southern California Pacific Islander Community Response Team

Students Rising Above

Teach Plus California

The Village Method

United Parents and Students

United Way of Greater Los Angeles

Watts of Power Foundation

Young Invincibles

OPPOSITION: (Verified 8/15/26)

California Family Council

Californians for Equal Rights Foundation

Center for Equal Opportunity

Elk Grove Chinese Association

Equal Rights for All PAC

San Diego Asian Americans for Equality

The American Civil Rights Project

ASSEMBLY FLOOR: 54-14, 2/19/26

AYES: Aguiar-Curry, Ahrens, Alvarez, Arambula, Ávila Farías, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Calderon, Caloza, Carrillo, Connolly, Elhawary, Fong, Gabriel, Garcia, Gipson, Mark González, Haney, Harabedian, Hart, Irwin, Jackson, Kalra, Krell, Lee, Lowenthal, McKinnor, Muratsuchi, Nguyen, Ortega, Pacheco, Papan, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Ransom, Michelle Rodriguez, Rogers, Blanca Rubio, Schultz, Sharp-Collins, Solache, Soria, Stefani, Valencia, Ward, Wicks, Wilson, Zbur, Rivas

NOES: Castillo, Chen, Davies, DeMaio, Jeff Gonzalez, Hadwick, Hoover, Johnson, Macedo, Patterson, Sanchez, Ta, Tangipa, Wallis

NO VOTE RECORDED: Addis, Alanis, Bains, Bryan, Dixon, Ellis, Flora, Gallagher, Lackey, Patel, Celeste Rodriguez, Schiavo

Prepared by: Olgalilia Ramirez / ED. / (916) 651-4105

8/17/26 11:19:11

**** END ****

SENATE COMMITTEE ON

Senator Sabrina Cervantes, Chair

2025 - 2026 Regular Session

ACA 7 (Jackson) - Government preferences

Bill Summary:

ACA 7, if approved by voters, would amend the California Constitution to replace “public education” with “higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin. The measure requires that it appear on the statewide general election ballot on November 7, 2028.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 13, 2026

Fiscal Impact:

• This bill could result in additional, unknown Proposition 98 General Fund cost pressures for the state or K-12 local educational agencies (LEAs) to enact policies and programs providing preferential treatment on the basis of race, sex, color, ethnicity, or national origin. However, these costs are difficult to quantify because the bill does not necessarily require any changes to current policies or programs. The exact costs would depend on any decisions that are made by the state or LEAs with respect to the implementation of policies or programs that consider race, sex, color, ethnicity, or national origin.
• This measure would result in one-time General Fund costs to the Secretary of State (SOS) in the range of $738,000 to $984,000, likely in 2028-29, 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.

Author Amendments:

Add legislative finding and declarations regarding racial equity gaps, make clarifying changes, and add Assemblymember Gipson as a coauthor.

-- END --

SENATE COMMITTEE ON

Senator Sabrina Cervantes, Chair

2025 - 2026 Regular Session

ACA 7 (Jackson) - Government preferences

Bill Summary:

ACA 7, if approved by voters, would amend the California Constitution to replace “public education” with “higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin. The measure requires that it appear on the statewide general election ballot on November 7, 2028.

Fiscal Impact:

• This bill could result in additional, unknown Proposition 98 General Fund cost pressures for the state or K-12 local educational agencies (LEAs) to enact policies and programs providing preferential treatment on the basis of race, sex, color, ethnicity, or national origin. However, these costs are difficult to quantify because the bill does not necessarily require any changes to current policies or programs. The exact costs would depend on any decisions that are made by the state or LEAs with respect to the implementation of policies or programs that consider race, sex, color, ethnicity, or national origin.
• This measure would result in one-time General Fund costs to the Secretary of State (SOS) in the range of $738,000 to $984,000, likely in 2028-29, 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.

Background:

Proposition 209, approved by voters in 1996, added Article 1, Section 31 to the California Constitution, prohibiting discrimination against or granting preferential treatment to individuals or groups on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting. It restricted affirmative action programs involving preferential treatment in the prescribed areas. According to the Legislative Analyst’s Office (LAO) in their review of Proposition 16 in 2020, prior to 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. After the adoption of Proposition 209, for higher education, this meant public colleges and universities could no longer consider those characteristics in admission decisions or operate certain programs specifically designed to increase access, representation, or support for historically underrepresented student groups. After voters approved Proposition 209, some public universities created or modified policies and programs to instead consider characteristics not banned by Proposition 209.

Proposed Law:

This bill amends the California Constitution, upon approval of the voters of California, by replacing “public education” with “higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin. Specifically, it removes “public education” from the list of activities which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin. The bill also adds “higher education admission and enrollment” to the list of activities which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.

This bill states that the prohibition on discrimination and the granting of preferential treatment only apply to actions of the State after the section’s effective date and is limited to the areas of public employment, higher education admission and enrollment, and public contracting. It also requires that the measure appear on the ballot at the November 7, 2028 statewide general election.

Related Legislation:

ACA 5 (Weber, Chapter 23, Statutes of 2020) asked voters to repeal Proposition 209 as Proposition 16 on the November 3, 2020, statewide general election ballot. ACA 5 failed passage with 57 percent of voters voting NO.

SCA 5 (Hernández, 2013) would have asked voters if Proposition 209 should be amended to permit the use of gender and race in UC and public school admissions. The measure was held by the Senate Desk.

Staff Comments:

This measure proposes to modify Proposition 209 by limiting its application in public education to higher education admission and enrollment, thereby removing other K-12 and higher education activities from its scope. The bill maintains the existing prohibition on affirmative action for college admissions, consistent with a recent decision by the U.S Supreme Court. According to the author, “ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes an adjustment to focus specifically on “higher education admissions and enrollment.” These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.”

The SOS indicates that printing and mailing costs associated with placing a measure on the statewide ballot are $123,000 per page, depending on the length of the ballot. The fiscal estimates noted above reflect the addition of 6-8 pages in the Voter Information Guide. Actual costs would depend upon the length of the title and summary, analysis by the LAO, proponent and opponent arguments, and text of the proposal.

-- END --

SENATE COMMITTEE ON

ELECTIONS AND CONSTITUTIONAL AMENDMENTS

Senator Scott Wiener, Chair

2025 - 2026 Regular

Bill No: Hearing Date: 6/9/26

Subject:

DIGEST

This proposed constitutional amendment would, if approved by the voters, amend the California Constitution to narrow the scope of the State’s prohibition in granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin as to exempt public education, except for higher education admissions and enrollment.

ANALYSIS

Existing law, contained in Section 31 of Article I of the California Constitution 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.”

This measure asks the people of the State of California at the November 7, 2028, statewide general election ballot to amend Section 31 of Article I of the California Constitution to replace “public education” with “higher education admissions and enrollment.” The measure would also make other conforming and technical changes.

BACKGROUND

Proposition 209. Growing out of the backlash to affirmative action policies, Proposition 209 of 1996, an initiative, added Section 31 of Article I to the California Constitution. It was the first electoral test of affirmative action policies in the United States, and its passage inspired similar measures in other states.

The language of Proposition 209 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.”

In the years since its passage, there have been several attempts to amend it or repeal it from the California Constitution. In 2013-14 session, SCA 5 (Hernández) would have removed “public education” entirely from Section 31 of Article I, so it only would have applied to public employment and public contracting. SCA 5 passed off the Senate Floor but was held at the Assembly Desk before it was eventually ordered to return to the Senate.

In 2020, ACA 5 (Weber) would have repealed Proposition 209 in its entirety. ACA 5 passed in both houses by large majorities and became Proposition 16 on the November 2020 ballot. The voters rejected Proposition 16 with 43 percent voting for it and 57 percent voting against it.

COMMENTS

1. Author’s Statement. This proposed constitutional amendment seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes an adjustment to focus specifically on “higher education admissions and enrollment.” These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.
2. Proposed for the 2028 Ballot. This measure includes language placing the proposed constitutional amendment on the November 2028 statewide general election ballot. Currently no ballot measures are set to appear on that ballot. The author has indicated that placing the measure on the statewide general election ballot in 2028 will provide greater time to educate voters on this measure than if it were rushed on to this November’s ballot.
3. Not Exactly Relevant Court Cases. Parallel to the legislative efforts relating to affirmative action policies, a number of well-known judicial decisions occurred. The latest of which constitutes the current law in the U.S. These court decisions relate to the admissions process at highly selective elite universities, including those in the Ivy League and the University of California and include:
   1. University of California v. Bakke. In 1978, the Supreme Court ruled that a state may constitutionally consider race as a factor in its university admissions to promote educational diversity, but only if considered alongside other factors and on a case-by-case basis. The Court ruled, however, that California’s use of racial quotas in this case, did not meet those requirements
   2. Students for Fair Admissions, Inc, v, President and Fellows of Harvard College. The U.S., Supreme Court revisited the issue of race conscious admissions in 2023, when the court held that the consideration of an applicant’s race as one factor in making an admission decision is unconstitutional.
4. The Achievement Gap. Proponents of the measure argue that it is needed to ensure the availability of educational programs aimed at populations delineated by race, national origin, or other classes and intended to reduce the achievement gap between those groups and white or higher income students. They contend that school districts and public entities are reluctant to offer such targeted programs because of the belief that these programs will run afoul of Proposition 209’s prohibitions. Their intent is to make such programs clearly legal under the California Constitution in an effort to close the achievement gap. Opponents, however, assert the changes to Proposition 209 the measure makes would increase ambiguity about what would constitute legally allowed programmatic offerings.
5. Arguments in Support. A broad coalition of justice, equity, and educational organizations write in support of the measure:

The inability to target the needs of students of color due to Prop 209’s restrictions on race-conscious policymaking has prevented California from closing racial equity gaps in educational outcomes. These gaps carry real consequences for graduation rates, college access, economic mobility, and long-term outcomes. [This measure] directly responds to this longstanding barrier by allowing policy-makers to craft targeted, evidence-based interventions to address documented inequities that race-neutral policies alone have failed to address.

Without [this measure], the state will continue to rely on ineffective proxies for race, limiting its ability to design effective educational interventions and allocate resources in ways that meaningfully advance equity.

1. Arguments in Opposition. In its letter urging the Legislature not to advance this measure to the ballot, the San Diego Asian Americans for Equality state, “Racial preferences enacted by the government are deeply unpopular among your electorate and among all Californians.” Other opponents share similar sentiments and further note that they opposed previous efforts to repeal or amend Proposition 209 and will do so again, including this measure if it appears on the ballot.

Noting that adoption of this measure would mean “K–12 policy, grant programs, state benefits, scholarship programs, and other government actions would no longer be constitutionally barred from race- or sex-based preferences,” the California Family Council states in its letter of opposition:

By narrowing the scope of Proposition 209’s protections, the amendment creates ambiguity and potential litigation over which programs may now incorporate race- or sex-based considerations. Rather than providing clarity, it weakens the constitutional guardrails that voters deliberately put in place.

1. Double referral. This measure was referred to both the Committee on Education and this committee. The Committee on Education passed the measure by a vote of 5 -2 on June 3, 2026.

RELATED/PRIOR LEGISLATION

SCA 5 (Hernández), of the 2013-14 Legislative Session, would have removed “public education” entirely from Section 31 of Article I, so that it only would have applied to public employment and public contracting. SCA 5 passed off the Senate Floor but the Assembly Desk eventually ordered its return to the Senate, where it died.

ACA 5 (Weber), Resolution Chapter 23, Statutes of 2020, asked the voters of California to vote to repeal Section 31 of Article I of the California Constitution and thus permit the use of race, gender, and ethnic diversity as factors in college admissions, government hiring, and government contracting. The measure became Proposition 16 on the November 2020 statewide general election ballot, which failed passage.

PRIOR ACTION

POSITIONS

Sponsor: Author

Support: A2MEND

Advanced Consulting, LLC

Berkeley Reparations Coalition

Black Educator Advocates Network

Black Parallel School Board

Black Students of California United

BLU Educational Foundation

Bulletproof Group

Californians for Justice

Californians Together

Canal Alliance

Center for Black Educator Development

Central Valley Movement Building Organizing Institute

Children Now

Chinese for Affirmative Action

Community Schools Learning Exchange

Congregations Organized for Prophetic Engagement

EdTrust-West

EdVoice

Grand Performances

Innercity Struggle

Island Grad and SBCUSD Pasifika Program

Los Angeles Urban Foundation

National Equity Project

Northern California College Promise Coalition

Parent Engagement Academy

Partnership for Los Angeles Schools

Prismatic Research & Strategy

Public Advocates

Southeast Asia Resource Action Center

Southern California Pacific Islander Community Response Team

Students Rising Above

Teach Plus California

The Village Method

United Parents and Students

United Way of Greater Los Angeles

Watts of Power Foundation

Young Invincibles

Oppose: California Family Council

Californians for Equal Rights Foundation

Center for Equal Opportunity

Elk Grove Chinese Association

Equal Rights for All Pac

San Diego Asian Americans for Equality

The American Civil Rights Project

Seven individuals

-- END --

SENATE COMMITTEE ON EDUCATION

Senator Sasha Renée Pérez, Chair

2025 - 2026 Regular

Bill No: Hearing Date: June 3, 2026

Subject: .

Note: This bill has been referred to the Committees on Education and Elections and Constitutional Amendments. A “do pass” motion should include referral to the Committee on Elections and Constitutional Amendments.

SUMMARY

This measure amends the California State Constitution, upon approval of the voters of California, by replacing “public education” with “higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin. It further requires that the measure appear on the ballot at the November 7, 2028, statewide general election.

BACKGROUND

United States Constitution:

1. Declares all people born or naturalized in the United States are citizens of the

United States and are citizens of the state where they reside. Prohibits any state from making or enforcing any law that abridges the privileges or immunities of citizens of the United States. Prohibits any state from depriving any person of life, liberty, or property, without due process of law. Prohibits any state from denying any person within its jurisdiction the equal protection of the law. (United States Constitution (USC), Amendment 14, the Equal Protection Clause)

Federal law:

1. No person in the United States will, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance except for specified circumstances, including membership of fraternities and sororities. (20 USC 1681-168 Title IX)
2. Prohibits discrimination on the basis of race, color, or/and national origin in programs and activities receiving federal assistance. (42 USC 2000d et seq., Title VI of the Civil Rights Act of 1964)
3. Prohibits discrimination in employment based on race, color, religion, sex, or national origin and prohibits retaliation against employees who invoke their rights under Title VII of the Civil Rights Act of 1964. (42 USC 2000e Title VII of the Civil Rights Act)

California State Constitution:

1. States that a person is not to be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. (Section 7 of Article 1 of the California State Constitution)
2. Prohibits the State, in the operation of public employment, public education, or public contracting, from discriminating against or granting preferential treatment to any individual or any group on the basis of race, sex, color, ethnicity, or national origin. States the implementation is to comply with federal laws and the USC and defines the “state” to include the public university system (including the University of California (UC)). Nothing in the aforementioned clause is to be interpreted as:
   1. Prohibiting bona fide qualifications based on sex, which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
   2. 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.
   3. Invalidating any court order or consent decree, which is in force as of the effective date of the section. (Section 31 of Article 1 of the California State Constitution (Proposition 209))

State law:

1. Establishes the Donahoe Higher Education Act, setting forth the mission of the UC, California State University (CSU), and California Community Colleges (CCC); and, defines “independent institutions of higher education” as nonpublic higher education institutions that grant undergraduate degrees, graduate degrees, or both, and that are formed as nonprofit corporations in California and are accredited by an agency recognized by the United States Department of Education. (Education Code (EC) Section 66010, et seq.)
2. States that no person is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes, as defined in subdivision (a) of Section 422.6 of the Penal Code, including immigration status. States the prohibition on the discrimination on the basis of the listed characteristics is extended to programs or activities conducted by any postsecondary education institution that receives or benefits from, state financial assistance or enrolls students who receive state financial aid. (EC § 66270)
3. States that no person is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or enrolls pupils who receive state student financial aid. (EC § 220)

ANALYSIS

1. This measure amends the California State Constitution, upon approval of the voters of California, by replacing “public education” with “higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin. Specifically, it:
   1. Removes “public education” from the list of activities which are prohibited

from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.

• 1. Adds “higher education admission and enrollment” to the list of activities

which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.

• 1. States that the prohibition on discrimination and the granting of

preferential treatment only apply to actions of the State after the section’s effective date and is limited to the areas of public employment, higher education admission and enrollment, and public contracting.

• 1. Requires that the measure appear on the ballot at the November 7, 2028

statewide general election.

• 1. Makes various technical and clarifying changes.

STAFF COMMENTS

1. Need for the bill. According to the author, “ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes an adjustment to focus specifically on “higher education admissions and enrollment.” These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.”
2. Proposition 209. Proposition 209, approved by voters in 1996, added Article 1, Section 31 to the California Constitution, prohibiting discrimination against or granting preferential treatment to individuals or groups on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting. Proposition 209 did not replace broader anti-discrimination protections, as state and federal constitutional equal protection guarantees and other civil rights laws continue to apply independently (outlined in the background section of this analysis). Seemingly, Proposition 209 serves as an additional constitutional limitation rather than the sole source of anti-discrimination protection. As noted in the Assembly Judiciary Committee analysis, “the language prohibiting discrimination was largely superfluous, given that the state and federal law as well as the equal protection clause of 14th Amendment, already prohibited such discrimination. What Proposition 209 effectively did was to prohibit preferential treatment which is generally understood to mean either setting quotas or, considering race as a one factor among many in someone’s qualification.”

Proposition 209 restricted affirmative action programs involving preferential treatment in the prescribed areas. According to the Legislative Analyst’s Office (LAO) in their review of Proposition 16 in 2020, prior to 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. After the adoption of Proposition 209, for higher education, this meant public colleges and universities could no longer consider those characteristics in admission decisions or operate certain programs specifically designed to increase access, representation, or support for historically underrepresented student groups. After voters approved Proposition 209, some public universities created or modified policies and programs to instead consider characteristics not banned by Proposition 209.

1. Related Supreme Court decisions.
   1. University of California v. Bakke. In 1978, the Supreme Court ruled that a state may constitutionally consider race as a factor in its university admissions to promote educational diversity, but only if considered alongside other factors and on a case-by-case basis. The Court ruled, however, that California’s use of racial quotas in this case, did not meet those requirements and violated the Constitution’s Equal Protection Clause. The Court also ruled that the state has a legitimate and substantial interest in eliminating the disabling effects of identified discrimination.
   2. Gratz v. BolIinger. In 2003, the Supreme Court ruled that the University of Michigan’s undergraduate admissions policy, which automatically distributed one -fifth of the points needed to guarantee admission to every single “underrepresented minority” applicant, was not narrowly tailored to achieve the University’s asserted interest in diversity and did violate the Equal Protection Clause.
   3. Grutter v. Bollinger. In June 2003, the US Supreme Court ruled that the Equal Protection Clause does not prohibit the University of Michigan Law School’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
   4. Fisher vs. University of Texas at Austin (2016). The US Supreme Court upheld the University of Texas’s admissions policy, holding that a public university may consider race as one factor in admissions if the policy withstands strict scrutiny and is narrowly tailored to achieve the educational benefits of diversity. It held that the race-conscious admission program in use at the time of application is lawful under the Equal Protection Clause.

• 1. Students for Fair Admissions, Inc, v, President and Fellows of Harvard College. The US Supreme Court subsequently revisited the issue of race conscious admissions in 2023. The Supreme Court issued a decision addressing the use of race based admission policies in higher education. The US Supreme Court held that the consideration of an applicant’s race as one factor in making an admission decision is unconstitutional violating the Equal Protection Clause of the 14^th Amendment.

1. Related ballot measure. In 2020, the Legislature approved ACA 5 (Weber, Chapter 23, Statutes of 2020), which asked voters for full repeal of Proposition 209. ACA 5 was placed before California voters as Proposition 16 on the November 3, 2020, statewide general election ballot, where it failed passage with 57 percent of voters voting NO. The LAO noted in its fiscal analysis of the ballot measure, that it would have no direct fiscal effect on state and local entities because the measure would not require any change to current policies or programs. Instead, any fiscal effects would depend on future choices by state and local entities to implement policies or programs that consider race, sex, color, ethnicity, or national origin in public education, public employment, and public contracting.

This measure, ACA 7, proposes a more targeted change to Proposition 209, limiting its application in public education to higher education admission and enrollment, thereby removing other K-12 and higher education activities from its scope.

According to the Assembly Judiciary Committee Analysis, “While leaving “higher education admissions and enrollment” in Article I, Section 31 is consistent with existing case law, it remains to be seen whether policies permitted under this proposed constitutional provision would violate the equal protection clause of the 14th Amendment. To be clear, this measure would not – indeed, could not – by itself violate the equal protection clause; because it does not by itself discriminate against, or grant a preference to, any individual or group. It simply declares what the state cannot do; it does not say what it can or must do. The opponents of this measure, therefore, are apparently concerned that this proposed change in the state constitution might permit policies that violate the equal protection clause. If the intent of the measure is to permit K-12 to discriminate on the basis of race, or permit colleges and universities to discriminate on the basis of race in everything other than admissions and enrollment, those polices might pass constitutional muster under the state constitution, as revised, but those policies might still violate the equal protection clause of the 14th Amendment, at least as interpreted by the U.S. Supreme Court in Students for Fair Admissions.”

1. Arguments in support. As stated by EdTrust – West in their letter submitted to this committee, “This measure represents a critical step toward ensuring that California can finally address long-standing inequities in TK-12 public education and design race-conscious policies to close persistent achievement gaps. EdTrust-Wests’s Black Minds Matter: Building Bright Black Futures report highlights the severity of these disparities: Black students continue to face stark academic disparities, with only 3 in 10 meeting grade‑level English language arts standards and math proficiency declining from 28% in third grade to just 16% by eleventh grade. Without meaningful policy change, these inequities will persist for generations. At the current pace, some estimates suggest that it will take until 2070 for all Black students to reach proficiency in reading and until 2089 for all Black students to reach proficiency in math, illustrating the profound limitations of race‑neutral approaches that have failed to produce the progress students deserve. The inability to target the needs of students of color due to Prop 209’s restrictions on race-conscious policymaking has prevented California from closing racial equity gaps in educational outcomes. These gaps carry real consequences for graduation rates, college access, economic mobility, and long-term outcomes. ACA 7 directly responds to this longstanding barrier by allowing policy-makers to craft targeted, evidence-based interventions to address documented inequities that race-neutral policies alone have failed to address.”
2. Arguments in opposition. As stated by the Pacific Legal Foundation, “While ACA 7 preserves the prohibition on discrimination in higher education enrollment, it will permit the government to discriminate in all aspects of K-12 education and all other aspects pertaining to colleges and universities. This uneven and inconsistent preservation of equality and opportunity fails to fully live up to the guarantee of the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Adherence to the Fourteenth Amendment mandates that ‘[e]liminating racial discrimination means eliminating all of it.’ It is thus insufficient under our constitution that government cannot discriminate in higher education enrollment but can discriminate everywhere else. Opposing ACA 7 will uphold the promise of equality that Proposition 209 protects. Since the passage of Proposition 209, Californians have consistently given strong support to the constitutional prohibition on racial preferences and discrimination. In 2020, Californians defeated Proposition 16 in a landslide, rejecting an amendment to repeal Proposition 209. And in 2024, an attempt to permit broad exceptions to Proposition 209 was unsuccessful when the Legislature failed to pass ACA 7.”
3. Prior legislation.

ACA 5 (Weber, Chapter 23, Statutes of 2020) a constitutional amendment asked the voters of California to vote on repealing Proposition 209, thereby permitting the use of race, gender, and ethnic diversity as factors in college admissions, government hiring, and government contracting. ACA 5 was placed before California voters as Proposition 16 on the November 3, 2020, statewide general election ballot, where it failed passage with 57 percent of voters voting NO.

SCA 5 (Hernández, 2013) would have asked the voters if Proposition 209 should be amended to permit the use of gender and race in UC and public school admissions. The measure was held by the Senate Desk.

SB 185 (Hernandez, 2011) stated the Legislature’s intent to authorize the 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 requested 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 the Governor, whose veto message read:

“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.”

AB 2047 (Hernandez, 2010) would have authorized the CSU and the UC to consider geographic origin, household income, race, gender, ethnicity and national origin along with other relevant factors, in undergraduate and graduate admissions, and required and requested the CSU and UC, respectively, to report on the implementation of these provisions to the Legislature and Governor by November 1, 2012, as specified. AB 2047 was ultimately vetoed by the Governor, whose veto message read, in pertinent part:

“The UC and CSU systems are aware of and supportive of the important goal of student diversity and make every attempt through its comprehensive review admissions process. That process considers many of the factors contained in this legislation, but do so within current constitutional restrictions. The intent of this bill would be more appropriately addressed through a constitutional change of those current restrictions.”

ACA 23 (Hernandez, 2009) would have exempted public education institutions from the constitutional prohibitions established by Proposition 209 for the purposes of implementing student recruitment and selection programs at public postsecondary education institutions. The proposed constitutional amendment passed the Assembly Higher Education Committee by a vote of 6-1 in July 2009 and was referred to the Assembly Judiciary Committee, but was never heard.

AB 2387 (Firebaugh, 2004) would have authorized the UC and the CSU to consider culture, race, gender, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, as specified, in undergraduate and graduate admissions, so long as no preference is given. AB 2387 was vetoed by the Governor, whose veto message read, in pertinent part:

“The practical implementation of the provisions of this bill would be contrary to the expressed will of the people who voted to approve Proposition 209 in 1996. Therefore, since the provisions of this bill would likely be ruled as unconstitutional, they would be more appropriately addressed through a change to the State Constitution.”

SUPPORT

A2MEND

Advanced Consulting, LLC

Berkeley Reparations Coalition

Black Educator Advocates Network

Black Parallel School Board

Black Students of California United

BLU Educational Foundation

Bulletproof Group

Californians for Justice

Californians Together

Canal Alliance

Center for Black Educator Development

Central Valley Movement Building Organizing Institute

Children Now

Chinese for Affirmative Action

Community Schools Learning Exchange

Congregations Organized for Prophetic Engagement

EdTrust-West

EdVoice

Grand Performances

Innercity Struggle

Island Grad and SBCUSD Pasifika Program

Los Angeles Urban Foundation

National Equity Project

Northern California College Promise Coalition

Parent Engagement Academy

Prismatic Research & Strategy

Public Advocates

Southeast Asia Resource Action Center

Southern California Pacific Islander Community Response Team

Students Rising Above

Teach Plus California

The Village Method

United Parents and Students

Watts of Power Foundation

Young Invincibles

OPPOSITION

Californians for Equal Rights Foundation

Elk Grove Chinese Association

Equal Rights for All Pac

San Diego Asian Americans for Equality

The American Civil Rights Project

Several Individuals

-- END --

SENATE COMMITTEE ON EDUCATION

Senator Sasha Renée Pérez, Chair

2025 - 2026 Regular

Bill No: Hearing Date: June 3, 2026

Subject: .

Note: This bill has been referred to the Committees on Education and Elections and Constitutional Amendments. A “do pass” motion should include referral to the Committee on Elections and Constitutional Amendments.

SUMMARY

This measure amends the California State Constitution, upon approval of the voters of California, by replacing “public education” with “higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin.

BACKGROUND

United States Constitution:

1. Declares all people born or naturalized in the United States are citizens of the

United States and are citizens of the state where they reside. Prohibits any state from making or enforcing any law that abridges the privileges or immunities of citizens of the United States. Prohibits any state from depriving any person of life, liberty, or property, without due process of law. Prohibits any state from denying any person within its jurisdiction the equal protection of the law. (United States Constitution (USC), Amendment 14, the Equal Protection Clause)

Federal law:

1. No person in the United States will, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance except for specified circumstances, including membership of fraternities and sororities. (20 USC 1681-168 Title IX)
2. Prohibits discrimination on the basis of race, color, or/and national origin in programs and activities receiving federal assistance. (42 USC 2000d et seq., Title VI of the Civil Rights Act of 1964)
3. Prohibits discrimination in employment based on race, color, religion, sex, or national origin and prohibits retaliation against employees who invoke their rights under Title VII of the Civil Rights Act of 1964. (42 USC 2000e Title VII of the Civil Rights Act)

California State Constitution:

1. States that a person is not to be deprived of life, liberty, or property without due process of law or denied equal protection of the laws. (Section 7 of Article 1 of the California State Constitution)
2. Prohibits the State, in the operation of public employment, public education, or public contracting, from discriminating against or granting preferential treatment to any individual or any group on the basis of race, sex, color, ethnicity, or national origin. States the implementation is to comply with federal laws and the USC and defines the “state” to include the public university system (including the University of California (UC)). Nothing in the aforementioned clause is to be interpreted as:
   1. Prohibiting bona fide qualifications based on sex, which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
   2. 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.
   3. Invalidating any court order or consent decree, which is in force as of the effective date of the section. (Section 31 of Article 1 of the California State Constitution (Proposition 209))

State law:

1. Establishes the Donahoe Higher Education Act, setting forth the mission of the UC, California State University (CSU), and California Community Colleges (CCC); and, defines “independent institutions of higher education” as nonpublic higher education institutions that grant undergraduate degrees, graduate degrees, or both, and that are formed as nonprofit corporations in California and are accredited by an agency recognized by the United States Department of Education. (Education Code (EC) Section 66010, et seq.)
2. States that no person is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes, as defined in subdivision (a) of Section 422.6 of the Penal Code, including immigration status. States the prohibition on the discrimination on the basis of the listed characteristics is extended to programs or activities conducted by any postsecondary education institution that receives or benefits from, state financial assistance or enrolls students who receive state financial aid. (EC § 66270)
3. States that no person is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in Section 422.55 of the Penal Code, including immigration status, in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance, or enrolls pupils who receive state student financial aid. (EC § 220)

ANALYSIS

1. This measure amends the California State Constitution, upon approval of the voters of California, by replacing “public education” with “higher education admissions and enrollment” in subdivision (a) Section 31, of Article I, which prohibits discrimination and preferential treatment on the basis of race, sex, color, ethnicity, or national origin. Specifically, it:
   1. Removes “public education” from the list of activities which are prohibited

from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.

• 1. Adds “higher education admission and enrollment” to the list of activities

which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.

• 1. States that the prohibition on discrimination and the granting of

preferential treatment only apply to actions of the State after the section’s effective date and is limited to the areas of public employment, higher education admission and enrollment, and public contracting.

• 1. Makes various technical and clarifying changes.

STAFF COMMENTS

1. Need for the bill. According to the author, “ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes an adjustment to focus specifically on “higher education admissions and enrollment.” These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.”
2. Proposition 209. Proposition 209, approved by voters in 1996, added Article 1, Section 31 to the California Constitution, prohibiting discrimination against or granting preferential treatment to individuals or groups on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting. Proposition 209 did not replace broader anti-discrimination protections, as state and federal constitutional equal protection guarantees and other civil rights laws continue to apply independently (outlined in the background section of this analysis). Seemingly, Proposition 209 serves as an additional constitutional limitation rather than the sole source of anti-discrimination protection. As noted in the Assembly Judiciary Committee analysis, “the language prohibiting discrimination was largely superfluous, given that the state and federal law as well as the equal protection clause of 14th Amendment, already prohibited such discrimination. What Proposition 209 effectively did was to prohibit preferential treatment which is generally understood to mean either setting quotas or, considering race as a one factor among many in someone’s qualification.

Proposition 209 restricted affirmative action programs involving preferential treatment in the prescribed areas. According to the Legislative Analyst’s Office (LAO) in their review of Proposition 16 in 2020, prior to 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. After the adoption of Proposition 209, for higher education, this meant public colleges and universities could no longer consider those characteristics in admission decisions or operate certain programs specifically designed to increase access, representation, or support for historically underrepresented student groups. After voters approved Proposition 209, some public universities created or modified policies and programs to instead consider characteristics not banned by Proposition 209.

1. Related Supreme Court decisions.
   1. University of California v. Bakke. In 1978, the Supreme Court ruled that a state may constitutionally consider race as a factor in its university admissions to promote educational diversity, but only if considered alongside other factors and on a case-by-case basis. The Court ruled, however, that California’s use of racial quotas in this case, did not meet those requirements and violated the Constitution’s Equal Protection Clause. The Court also ruled that the state has a legitimate and substantial interest in eliminating the disabling effects of identified discrimination.
   2. Gratz v. BolIinger. In 2003, the Supreme Court ruled that the University of Michigan’s undergraduate admissions policy, which automatically distributed one -fifth of the points needed to guarantee admission to every single “underrepresented minority” applicant, was not narrowly tailored to achieve the University’s asserted interest in diversity and did violate the Equal Protection Clause.
   3. Grutter v. Bollinger. In June 2003, the US Supreme Court ruled that the Equal Protection Clause does not prohibit the University of Michigan Law School’s “narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”
   4. Fisher vs. University of Texas at Austin (2016). The US Supreme Court upheld the University of Texas’s admissions policy, holding that a public university may consider race as one factor in admissions if the policy withstands strict scrutiny and is narrowly tailored to achieve the educational benefits of diversity. It held that the race-conscious admission program in use at the time of application is lawful under the Equal Protection Clause.

• 1. Students for Fair Admissions, Inc, v, President and Fellows of Harvard College. The US Supreme Court subsequently revisited the issue of race conscious admissions in 2023. The Supreme Court issued a decision addressing the use of race based admission policies in higher education. The US Supreme Court held that the consideration of an applicant’s race as one factor in making an admission decision is unconstitutional violating the Equal Protection Clause of the 14^th Amendment.

1. Related ballot measure. In 2020, the Legislature approved ACA 5 (Weber, Chapter 23, Statutes of 2020), which asked voters for full repeal of Proposition 209. ACA 5 was placed before California voters as Proposition 16 on the November 3, 2020, statewide general election ballot, where it failed passage with 57 percent of voters voting NO. The LAO noted in its fiscal analysis of the ballot measure, that it would have no direct fiscal effect on state and local entities because the measure would not require any change to current policies or programs. Instead, any fiscal effects would depend on future choices by state and local entities to implement policies or programs that consider race, sex, color, ethnicity, or national origin in public education, public employment, and public contracting.

This measure, ACA 7, proposes a more targeted change to Proposition 209, limiting its application in public education to higher education admission and enrollment, thereby removing other K-12 and higher education activities from its scope.

According to the Assembly Judiciary Committee Analysis, “While leaving “higher education admissions and enrollment” in Article I, Section 31 is consistent with existing case law, it remains to be seen whether policies permitted under this proposed constitutional provision would violate the equal protection clause of the 14th Amendment. To be clear, this measure would not – indeed, could not – by itself violate the equal protection clause; because it does not by itself discriminate against, or grant a preference to, any individual or group. It simply declares what the state cannot do; it does not say what it can or must do. The opponents of this measure, therefore, are apparently concerned that this proposed change in the state constitution might permit policies that violate the equal protection clause. If the intent of the measure is to permit K-12 to discriminate on the basis of race, or permit colleges and universities to discriminate on the basis of race in everything other than admissions and enrollment, those polices might pass constitutional muster under the state constitution, as revised, but those policies might still violate the equal protection clause of the 14th Amendment, at least as interpreted by the U.S. Supreme Court in Students for Fair Admissions.”

1. Arguments in support. As stated by EdTrust – West in their letter submitted to this committee, “This measure represents a critical step toward ensuring that California can finally address long-standing inequities in TK-12 public education and design race-conscious policies to close persistent achievement gaps. EdTrust-Wests’s Black Minds Matter: Building Bright Black Futures report highlights the severity of these disparities: Black students continue to face stark academic disparities, with only 3 in 10 meeting grade‑level English language arts standards and math proficiency declining from 28% in third grade to just 16% by eleventh grade. Without meaningful policy change, these inequities will persist for generations. At the current pace, some estimates suggest that it will take until 2070 for all Black students to reach proficiency in reading and until 2089 for all Black students to reach proficiency in math, illustrating the profound limitations of race‑neutral approaches that have failed to produce the progress students deserve. The inability to target the needs of students of color due to Prop 209’s restrictions on race-conscious policymaking has prevented California from closing racial equity gaps in educational outcomes. These gaps carry real consequences for graduation rates, college access, economic mobility, and long-term outcomes. ACA 7 directly responds to this longstanding barrier by allowing policy-makers to craft targeted, evidence-based interventions to address documented inequities that race-neutral policies alone have failed to address.”
2. Arguments in opposition. As stated by the Pacific Legal Foundation, “While ACA 7 preserves the prohibition on discrimination in higher education enrollment, it will permit the government to discriminate in all aspects of K-12 education and all other aspects pertaining to colleges and universities. This uneven and inconsistent preservation of equality and opportunity fails to fully live up to the guarantee of the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Adherence to the Fourteenth Amendment mandates that ‘[e]liminating racial discrimination means eliminating all of it.’ It is thus insufficient under our constitution that government cannot discriminate in higher education enrollment but can discriminate everywhere else. Opposing ACA 7 will uphold the promise of equality that Proposition 209 protects. Since the passage of Proposition 209, Californians have consistently given strong support to the constitutional prohibition on racial preferences and discrimination. In 2020, Californians defeated Proposition 16 in a landslide, rejecting an amendment to repeal Proposition 209. And in 2024, an attempt to permit broad exceptions to Proposition 209 was unsuccessful when the Legislature failed to pass ACA 7.”
3. Prior legislation.

ACA 5 (Weber, Chapter 23, Statutes of 2020) a constitutional amendment asked the voters of California to vote on repealing Proposition 209, thereby permitting the use of race, gender, and ethnic diversity as factors in college admissions, government hiring, and government contracting. ACA 5 was placed before California voters as Proposition 16 on the November 3, 2020, statewide general election ballot, where it failed passage with 57 percent of voters voting NO.

SCA 5 (Hernández, 2013) would have asked the voters if Proposition 209 should be amended to permit the use of gender and race in UC and public school admissions. The measure was held by the Senate Desk.

SB 185 (Hernandez, 2011) stated the Legislature’s intent to authorize the 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 requested 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 the Governor, whose veto message read:

“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.”

AB 2047 (Hernandez, 2010) would have authorized the CSU and the UC to consider geographic origin, household income, race, gender, ethnicity and national origin along with other relevant factors, in undergraduate and graduate admissions, and required and requested the CSU and UC, respectively, to report on the implementation of these provisions to the Legislature and Governor by November 1, 2012, as specified. AB 2047 was ultimately vetoed by the Governor, whose veto message read, in pertinent part:

“The UC and CSU systems are aware of and supportive of the important goal of student diversity and make every attempt through its comprehensive review admissions process. That process considers many of the factors contained in this legislation, but do so within current constitutional restrictions. The intent of this bill would be more appropriately addressed through a constitutional change of those current restrictions.”

ACA 23 (Hernandez, 2009) would have exempted public education institutions from the constitutional prohibitions established by Proposition 209 for the purposes of implementing student recruitment and selection programs at public postsecondary education institutions. The proposed constitutional amendment passed the Assembly Higher Education Committee by a vote of 6-1 in July 2009 and was referred to the Assembly Judiciary Committee, but was never heard.

AB 2387 (Firebaugh, 2004) would have authorized the UC and the CSU to consider culture, race, gender, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, as specified, in undergraduate and graduate admissions, so long as no preference is given. AB 2387 was vetoed by the Governor, whose veto message read, in pertinent part:

“The practical implementation of the provisions of this bill would be contrary to the expressed will of the people who voted to approve Proposition 209 in 1996. Therefore, since the provisions of this bill would likely be ruled as unconstitutional, they would be more appropriately addressed through a change to the State Constitution.”

SUPPORT

A2MEND

Advanced Consulting, LLC

Berkeley Reparations Coalition

Black Educator Advocates Network

Black Parallel School Board

Black Students of California United

BLU Educational Foundation

Bulletproof Group

Californians for Justice

Californians Together

Canal Alliance

Center for Black Educator Development

Central Valley Movement Building Organizing Institute

Children Now

Chinese for Affirmative Action

Community Schools Learning Exchange

Congregations Organized for Prophetic Engagement

EdTrust-West

EdVoice

Grand Performances

Innercity Struggle

Island Grad and SBCUSD Pasifika Program

Los Angeles Urban Foundation

National Equity Project

Northern California College Promise Coalition

Parent Engagement Academy

Prismatic Research & Strategy

Public Advocates

Southeast Asia Resource Action Center

Southern California Pacific Islander Community Response Team

Students Rising Above

Teach Plus California

The Village Method

United Parents and Students

Watts of Power Foundation

Young Invincibles

OPPOSITION

Californians for Equal Rights Foundation

Elk Grove Chinese Association

Equal Rights for All Pac

San Diego Asian Americans for Equality

The American Civil Rights Project

Several Individuals

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:ACA 7

Author:(Jackson)

As Amended Ver:May 7, 2025

2/3 vote

SUMMARY

Amends the California State Constitution, upon approval of the voters of California, to narrow the scope of the State′s prohibition in granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin to the areas of public employment, higher education admission and higher education enrollment, and public contracting.

Major Provisions

1. Removes public education from the list of State operations which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.
2. Adds ″higher education admission and enrollment″ to the list of State operations which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.
3. States the prohibition on discrimination and the granting of preferential treatment shall only apply to actions of the State after the section′s effective date and is limited to the areas of public employment, higher education admissions and enrollment, and public contracting.
4. Makes various technical and clarifying changes to the section of the California Constitution.

COMMENTS

Background on Proposition 209. Heralded as the a first step in providing a free and equal society, the passing of the Civil Rights Act of 1964 was only one part of the Federal Government′s approach to guaranteeing equal treatment for every American. In addition to the passing of the landmark act, President Lyndon Johnson issued Executive Order 11246 requiring the federal government to take affirmative action to address previously discriminatory practices in the hiring and employing of marginalized individuals underrepresented in public employment. Over the next few decades, Federal agencies and State governments introduced affirmative action policies to provide greater access to educational and employment opportunities for historically marginalized groups affected by systemic discrimination. Affirmative action initiatives are ″any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future.″

Over the next few decades various court cases including Regents of University of California v. Bakke (1978) 438 U.S. 265, challenged the scope of affirmative action initiatives and the public discord became politically charged with many believing affirmative action was ″reverse discrimination.″ In the wake of growing concern around the correlation between affirmative action and discrimination, the University of California (UC) Board of Regents passed the country′s first affirmative action ban in 1995, ending the practice of using race, religion, sex, color, ethnicity, or national origin as a criterion in admissions, contracting, and hiring practices at the UC. In the wake of the UC decision, California became the first state to place a proposition on the ballot to create a ″prohibition against discrimination or preferential treatment by the state and other public entities.″

According to the Legislative Analyst′s Office, Proposition 209 would ″eliminate state and local government affirmative action programs in the areas of public employment, public education, and public contracting to the extent these programs involve ′preferential treatment′ based on race, sex, color, ethnicity, or national origin.″ In higher education, the proposition would impact a variety of assistance programs for students, faculty and staff that provided targeted assistance to individuals based on individuals. These targeted programs included specialized tutoring, financial aid, outreach, and counseling.

In November 1996, Proposition 209 passed with a majority voting (54.55%) in favor of the constitutional amendment. In the intervening years, a myriad studies reported the outcomes Proposition 209 had on public contracting, public employment, and public education. In 2008, the Thelton E. Henderson Center for Social Justice published a report entitled, ″Proposition 209 and Public Employment in California Trends in Workforce Diversity,″ which determined:

″the State of California has provided employment opportunities for people of color and women of all races. However lingering and even increased disparity still exists, particularly for Latino Americans and women, and should be rectified.″

Research on college admissions showed an almost immediate disproportionality in the admission of minority students to the UC. However, it is unclear if this disparity can solely be attributed to the impact of Proposition 209 on admissions, as there is a ″substantial difference in the share of high school students completing the college preparatory courses required for UC admission.″

In January 2015, a study conducted by Equal Justice Society, found Proposition 209 resulted in an annual loss of $1 billion in revenue for minority and women business enterprises due to the end of race-conscious contracting programs.

Since 1996, there have been four legislative attempts to either repeal or reduce the scope of Proposition 209 on public contracting, public education, and public employment. Of the four attempts only one has made it onto the ballot. In 2020, ACA 5 (Weber), Chapter 23, Statues of 2020 or Proposition 16 sought to repeal the provisions of Proposition 209. Proposition 16 failed with the majority of Californians voting to uphold the existing ban on discrimination and preferential treatment in State operations of public employment, public contracting, and public education.

ACA 7 implications on public education. ACA 7 (Jackson) would provide an opportunity for voters to re-examine the scope of Proposition 209 and to align the California Constitutional Article with a recent U.S. Supreme Court decision on collegiate admissions. In 2023, the U.S. Supreme Court determined the admissions programs at Harvard College and the University of North Carolina violated the equal protections clause of the 14^th Amendment of the U.S. Constitution when colleges considered race as a criterion in admission decisions. The decision effectively ended affirmative action in admissions across the United States; except for in California, where Proposition 209 already prohibited the public university system from using race as a criteria for admissions.

Currently, Proposition 209 applies to more than just admissions and enrollment in higher education. The prohibition on discriminatory practices and preferential treatment based on race, sex, color, ethnicity, or national origin includes every aspect of higher education operations funded by the State. Since the enactment of Proposition 209, public higher education institutions have sought to comply while also providing for a diverse student population through the creation of diversity, equity, and inclusion programs. Examples of diversity, equity, and inclusion program programs created to encourage a diverse student population include: Umoja, Puente, the Asian American, Native Hawaiian, and Pacific Islander Student Achievement Program, and the Native American Student Support and Success Program. Each of these programs receive state funds and provide additional supports to marginalized student groups; however, these programs are not perceived as violating Proposition 209 as the programs are not exclusionary in who they support. Additionally, admission officers at the California State University (CSU) and UC have also practiced applying diversity, equity, and inclusionary practices to admissions in order to avoid Proposition 209 violations. Both university systems have adopted a holistic approach, which considers the applicants full history taking into account systemic barriers a student may have encountered and overcome.

ACA 7 (Jackson) removes public education from the list of State operations expressly prohibited by the California Constitution from discriminating against or providing preferential treatment based on certain characteristics; however, it would not remove the legal obligation for public education entities to comply with State and Federal Civil Rights Laws. Proposition 209 is not an isolated law in its prohibition against discriminatory practices. Even if, ACA 7 (Jackson) were to pass the Legislature and the voters of California were to affirm the language, the measure would not result in discriminatory practices or preferential treatment for individuals based on race, sex, gender, ethnicity, or national origin in the operations of public education. Nor would the measure result in the return of affirmative action programs to K-12 local education agencies or public higher education agencies.

Please see the policy committee′s analysis for a full discussion of this bill.

According to the Author

As described by the author, ″ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes a modest adjustment to focus specifically on ′higher education enrollment.′ These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.″

Arguments in Support

As stated by EdTrust – West, ″this measure would amend the California constitution to permit use of race in public education policy, excluding higher education enrollment. As explained in our recent publication ″Black Minds Matter,″ (Black Minds Matter: Building Bright Black Futures) research and data on public education show significant racial disparities in opportunity and achievement. In many cases, these disparities are rooted in race. ACA 7 recognizes this and would permit targeted, research-based interventions that improve educational outcomes. Without ACA 7, we′ll continue to struggle to close opportunity and achievement gaps as no effective proxy for race has been found to target educational interventions and resources.″

Arguments in Opposition

As stated by the Pacific Legal Foundation, ″While ACA 7 preserves the prohibition on discrimination in higher education enrollment, it will permit the government to discriminate in all aspects of K-12 education and all other aspects pertaining to colleges and universities. This uneven and inconsistent preservation of equality and opportunity fails to fully live up to the guarantee of the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Adherence to the Fourteenth Amendment mandates that ′[e]liminating racial discrimination means eliminating all of it.′ It is thus insufficient under our constitution that government cannot discriminate in higher education enrollment but can discriminate everywhere else. Opposing ACA 7 will uphold the promise of equality that Proposition 209 protects. Since the passage of Proposition 209, Californians have consistently given strong support to the constitutional prohibition on racial preferences and discrimination. In 2020, Californians defeated Proposition 16 in a landslide, rejecting an amendment to repeal Proposition 209. And in 2024, an attempt to permit broad exceptions to Proposition 209 was unsuccessful when the Legislature failed to pass ACA 7.″

FISCAL COMMENTS

According to the Assembly Committee on Appropriations:

1. One-time General Fund costs to the Secretary of State in the hundreds of thousands of dollars 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. Over the last three election cycles, the printing and mailing costs per page averaged around $80,000.
2. Potential ongoing Proposition 98 General Fund cost pressures of an unknown but possibly significant amount, potentially in the tens of millions to hundreds of millions of dollars, for K-12 local educational agencies or the Legislature to enact policies and programs providing preferential treatment on the basis of race, sex, color, ethnicity, or national origin.

VOTES

ASM HIGHER EDUCATION: 6-3-1

YES: Fong, Boerner, Jackson, Muratsuchi, Celeste Rodriguez, Sharp-Collins

NO: DeMaio, Jeff Gonzalez, Tangipa

ABS, ABST OR NV: Patel

ASM JUDICIARY: 9-3-0

YES: Kalra, Bauer-Kahan, Bryan, Connolly, Harabedian, Pacheco, Papan, Stefani, Zbur

NO: Dixon, Macedo, Sanchez

ASM APPROPRIATIONS: 11-4-0

YES: Wicks, Stefani, Calderon, Caloza, Fong, Mark González, Krell, Bauer-Kahan, Pacheco, Pellerin, Solache

NO: Hoover, Dixon, Ta, Tangipa

UPDATED

VERSION: May 7, 2025

CONSULTANT: Ellen Cesaretti-Monroy / HIGHER ED. / (916) 319-3960 FN: 0002249

Date of Hearing: May 14, 2025

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Buffy Wicks, Chair

ABPCA Bill Id:ACA 7

Author:(Jackson) – As Amended Ver:May 7, 2025

Urgency: State Mandated Local Program: No Reimbursable: No

SUMMARY:

This measure, if approved by the voters, replaces “public education” with “higher education admissions and enrollment” for purposes of subdivision (a) of Section 31, of Article I of the California Constitution, regarding the state’s prohibition of discrimination and preferential treatment on the basis of race sex, color, ethnicity, or national origin.

FISCAL EFFECT:

1. One-time General Fund costs to the Secretary of State in the hundreds of thousands of dollars 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. Over the last three election cycles, the printing and mailing costs per page averaged around $80,000.
2. Potential ongoing Proposition 98 General Fund cost pressures of an unknown but possibly significant amount, potentially in the tens of millions to hundreds of millions of dollars, for K-12 local educational agencies or the Legislature to enact policies and programs providing preferential treatment on the basis of race, sex, color, ethnicity, or national origin.

COMMENTS:

1. Purpose. According to the author:

ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes a modest adjustment to focus specifically on ‘higher education [admissions and] enrollment.’ These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.

1. Background. Proposition 209. Enacted by the voters in 1996, Article I, Section 31 of the California Constitution, commonly known as Proposition 209, passed during the midst of a political reaction against “affirmative action” in the state and around the nation. Proposition 209 declared that 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.” The language prohibiting “discrimination” was largely superfluous, given that state and federal law, as well as the equal protection clause of the 14th Amendment, already prohibited such discrimination. What Proposition 209 accomplished, therefore, was a prohibition of “preferential treatment.” Although the measure did not define “preferential treatment,” the courts have held that it means “to give priority or advantage to one person . . . over others.” Essentially, this policy all but banned affirmative action outright.

This bill maintains the existing prohibition on affirmative action for college admissions, consistent with a recent decision by the U.S. Supreme Court, but it would authorize action for K-12 schools and, potentially, in any aspect of higher education other than admissions and enrollment.

Past efforts. SCA 5 (Hernández), of the 2013-14 Legislative Session, would have removed “public education” entirely from the Article I, Section 31, so that it only would have applied to public employment and public contracting. SCA passed off the Senate Floor but the Assembly desk eventually ordered it return to the Senate, where it died. In 2020, ACA 5 (Weber) of the 2019-20 Legislative Session, passed in both houses by large majorities and was added to the ballot as Proposition 16. This measure would have repealed Proposition 209 in its entirety, thereby authorizing the state to consider racial and gender diversity as a factor in public employment, public education, and public contracting. However, over 57% of the voters voted to reject Proposition 16. Notably, ACA 7 is much narrower than the two prior attempts and retains a prohibition consistent with a recent decision of the U.S. Supreme Court regarding college admissions. If passed by the Legislature, this bill would need to receive a majority vote by the California electorate to become law.

Analysis Prepared by: Aaron Heredia / APPR. / (916) 319-2081

Date of Hearing: May 6, 2025

ASSEMBLY COMMITTEE ON JUDICIARY

Ash Kalra, Chair

ABPCA Bill Id:ACA 7

Author:(Jackson) – As Introduced Ver:February 13, 2025

As Proposed to be Amended

SUBJECT: Government preferences

KEY ISSUE: should proposition 209 be amended to prohibit the state from discriminating against, or granting a preference to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the areas of public employment, higher education admissions and enrollment, or public contracting?

SYNOPSIS

Article I, Section 31 of the California Constitution (also known as Proposition 209) prohibits the state from granting a preference to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the areas of public employment, public education, or public contracting. This proposed constitutional amendment would strike out “public education” and replace it with “higher education admissions and enrollment.” In other words, preferences based on the protected characteristics would still be prohibited in college admissions, consistent with a recent decision by the U.S. Supreme Court, but it would not be prohibited in K-12 schools or, presumably, in any aspect of higher education other than admissions and enrollment.

This is not the first time that the Legislature has attempted to amend or repeal portions of Proposition 209. In 2013, SCA 5 would have removed “public education” entirely from the Article I, Section 31, so that it only would have applied to public employment and public contracting. SCA 5 passed off the Senate Floor but was held at the Assembly desk before it was eventually ordered returned to the Senate, where it died. In 2020, ACA 5 passed in both houses by large majorities; it was chaptered by the Secretary of State and became Proposition 16. This measure would have repealed Proposition 209 in its entirety and thus authorized the state to consider racial and gender diversity as a factor in public employment, public education, and public contracting. Proposition 16 was rejected by over 57% of the voters. Although opponents of this measure point to this history to suggest that this measure is somehow contrary to public opinion or the will of the voters, two points warrant attention: first, this bill is much narrower than the two prior measures and retains a prohibition that is consistent with a recent decision of the U.S. Supreme Court; second, the measure cannot run contrary to public opinion or the will of voters because it must be approved by the voters before it becomes part of the state constitution.

Ed Trust-West supports this bill because it will allow schools to engage in targeted interventions to address disparities and improve educational outcomes. The bill is opposed by the Pacific Legal Foundation and Californians for Equal Rights Foundation, because the opposition alleges it will repeal principles of equality and anti-discrimination enshrined in the California and U.S. constitutions.

SUMMARY: Replaces “public education” with “higher education admissions and enrollment” in subdivision (a) of Section 31, of Article I of the California Constitution so that it will read as follows: “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, higher education admissions and enrollment, or public contracting.” Makes other conforming changes.

EXISTING LAW:

1. Provides that 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.” (Article I, Section 31 of the California Constitution.)
2. Provides that no person shall, on the basis of sex, race, color, religion, ancestry, national origin, ethnic group identification, age, mental disability, physical disability, medical condition, genetic information, marital status, or sexual orientation, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is funded, conducted, operated, or administered by the state or by any state agency. (Government Code Section 11135.)
3. Prohibits discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any other protected characteristic, as specified, in any programs or activities conducted by any postsecondary education institution that receives or benefits from state financial assistance, or enrolls students who receive state financial aid. (Education Code Section 66270.)
4. Provides, under Title IX of the Education Amendments Act of 1972, that no person shall be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, except as provided. (20 U.S.C. Sections 1681-1688.)
5. Provides, under Title VI of the Civil Rights Act of 1964, that no person shall be discriminated against on the basis of race, color, or national origin in any programs and activities receiving federal assistance. (42 U.S.C. 2000d et seq.)
6. Prohibits, under Title VII of the Civil Rights Act of 1964, discrimination in employment based on race, color, religion, sex or national origin and prohibits retaliation against employees who evoke their rights under this provision. (42 U.S.C. 2000e et seq.)

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

COMMENTS: According to the author, “ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes a modest adjustment to focus specifically on ‘higher education [admissions and] enrollment.’ These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.”

Proposition 209. Article I, Section 31 of the California Constitution, usually known as Proposition 209, was adopted by the voters in 1996 in the midst of a political reaction against “affirmative action” in the state and around the nation. Proposition 209 declared that 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.” The language prohibiting “discrimination” was largely superfluous, given that state and federal law, as well as the equal protection clause of the 14th Amendment, already prohibited such discrimination. What Proposition 209 did, therefore, was to prohibit “preferential treatment.” Although the measure did not define “preferential treatment,” the courts have held that it means “to give priority or advantage to one person . . . over others.” [Hi-Voltage Wire Works v San Jose (2000) 24 Cal. 4th 537, 559, quoting Webster’ New World Dictionary (3d Ed. 1988).] While a dictionary is a good place to start, it often defers rather than settles meaning. What is clear from the debates about Proposition 209 at the time, most people understood that it would all but ban “affirmative action,” and that was generally understood to mean either setting “quotas” or, less objectionably, considering race as a one “factor” among many in someone’s qualifications.

This bill makes a simple but very significant change to Article I, Section 31: it would strike out “public education” and replace it with “higher education admissions and enrollment.” In other words, affirmative action would still be prohibited in college admissions, consistent with a recent decision by the U.S. Supreme Court, but it would not be prohibited in K-12 schools or, presumably, in any aspect of higher education other than admissions and enrollment. According to the author, the constitutional amendment will simply provide “clarity” to the scope of Proposition 209. However, based on applicable precedents, if adopted by the voters, the measure would alter the scope of Proposition 209. The prohibition in existing law applies to all aspects and all levels of “public education,” whereas under this measure the prohibition would only apply to public colleges and universities, and only to policies relating to admissions and enrollment. Narrowing the scope of Proposition 209 in this fashion may be a good idea – and the voters may approve of it – but the practical application of this amendment would likely amount to more than a clarification of existing state constitutional law.

Past efforts. This is not the first time that the Legislature has attempted to amend or appeal Proposition 209. In 2013, SCA 5 would have removed “public education” entirely from the Article I, Section 31, so that it only would have applied to public employment and public contracting. SCA passed off the Senate Floor but was held at the Assembly desk before it was eventually ordered returned to the Senate, where it died. In 2020, ACA 5 passed in both houses by large majorities; it was chaptered by the Secretary of State and became Proposition 16. This measure would have repealed Proposition 209 in its entirety, thereby authorizing the state to consider racial and gender diversity as a factor in public employment, public education, and public contracting. Proposition 16 was rejected by over 57% of the voters. Although opponents of this measure point to this history to suggest that this measure is somehow contrary to public opinion or the will of the voters, two points warrant attention: first, this bill is much narrower than the two prior measures and retains a prohibition that is consistent with a recent decision of the U.S. Supreme Court; second, by definition this measure cannot run contrary to public opinion or the will of voters since it will only become part of the state constitution if it is approved by the voters.

“Affirmative action” under Proposition 209 and the equal protection clause of the 14^th Amendment. Although discussions about affirmative action in California sometimes conflate the limits imposed by Proposition 209 with the limits imposed by the equal protection clause of the 14^th Amendment, it is important to distinguish between them. For example, a policy that survives strict scrutiny under the equal protection clause of the 14^th Amendment – because it serves a compelling government interest by narrowly tailored means – could still violate Proposition 209, because Proposition 209 is an outright prohibition with no exceptions for compelling government interests served by narrowly tailored means. At the risk of stating the obvious, this measure, if adopted, could not possibly violate Proposition 209 because it will modify Proposition 209. One could argue, as the opposition does, that this measure may run contrary to public opinion, insofar as the voters reaffirmed their support for Proposition 209 in 2020 by rejecting Proposition 16, a ballot measure that would have repealed Proposition 209.

However, unlike Proposition 16, this measure does not repeal Proposition 209; it only narrows it. The measure would leave in place the prohibition on discriminating against, or granting preferences to, a person or group on the basis of its protected characteristics in public employment and public contracting. It would modify the prohibition as it currently applies to “public education” by only having it apply to college admissions and enrollment. Presumably, then, under this measure, there would be no prohibition on granting preferences outside of higher education or outside of admissions and enrollment. For example, a K-12 school district could presumably adopt policies that considered race, sex, or ethnicity in its admissions and enrollment policies, and a college or university could consider these characteristics in policies that do not concern admissions or enrollment. Given that this measure, if adopted, would change Proposition 209, the more pertinent question may be whether this change to Proposition 209 would permit policies that run afoul of the equal protection clause of the 14^th Amendment.

To begin with, the author is correct that by leaving “higher education admissions and enrollment” in Article I, Section 31, the proposed change is fully consistent with recent case law. For almost 50 years, affirmative action policies in higher education have sparked some of the most controversial equal protection cases. In Bakke v. UC Regents (1978) 438 U.S. 265, a divided U.S. Supreme Court held that affirmative action programs that established a “quota” (that is an automatic “set aside” for members of a particular group) violated the equal protection clause because it did not allow for an individualized assessment of each candidate. However, the Court held that considering race as one “factor” among many was constitutionally permissible. As late as 2003, the Court reaffirmed the Bakke distinction between permissible “factors” and impermissible “quotas.” (Grutter v Bollinger (2003) 539 U.S. 306 and Gratz v. Bollinger (2003) 539 U.S. 244.)

The settled distinctions running from Bakke to the Bollinger cases were drastically unsettled two years ago in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (2023) 600 U.S. 181. The Court held that Harvard’s admissions policies – even if it only used race as a “factor” for admission – violated the equal protection clause of the 14th Amendment. The Court held that Harvard (and the University of North Carolina in a consolidated case) could not show a “compelling state interest” in any measurable way. However, the Court did provide a slight opening for affirmative action when it conceded that a college could consider an applicant’s discussion of how race affected the applicant’s life, so long as the discussion is tied to the character or unique ability of the individual candidate. (It should be noted that even this would arguably not survive Proposition 209, either in its current form or as proposed to be amended.) Yet, the overall message of the Court was perhaps best summarized when, quoting prior case law, the majority of the Court wrote that, “distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” (Students for Fair Admissions, supra, quoting Rice v. Cayetano (2000) 528 U.S. 495, which in turn was quoting Hirabayashi v. United States (1943) 320 U.S. 81.)

While leaving “higher education admissions and enrollment” in Article I, Section 31 is consistent with existing case law, it remains to be seen whether policies permitted under this proposed constitutional provision would violate the equal protection clause of the 14^th Amendment. To be clear, this measure would not – indeed, could not – by itself violate the equal protection clause; because it does not by itself discriminate against, or grant a preference to, any individual or group. It simply declares what the state cannot do; it does not say what it can or must do. The opponents of this measure, therefore, are apparently concerned that this proposed change in the state constitution might permit policies that violate the equal protection clause. If the intent of the measure is to permit K-12 to discriminate on the basis of race, or permit colleges and universities to discriminate on the basis of race in everything other than admissions and enrollment, those polices might pass constitutional muster under the state constitution, as revised, but those policies might still violate the equal protection clause of the 14^th Amendment, at least as interpreted by the U.S. Supreme Court in Students for Fair Admissions.

What policies would this measure permit that are not permitted now? Although the author claims that the intent of this bill is to “clarify” existing law, the effect of the new language would allow K-12 schools to consider race and gender in developing its policies, and would permit college and universities to consider race and gender in all policies other than those affecting admission and enrollment. According to Ed Trust-West, one of the supporters of this bill, this measure would address disparities rooted in race by permitting “targeted, research-based interventions that improve educational outcomes.” Neither the author’s background material nor the letter of support say precisely what those “interventions” would be, but presumably this could mean curricular, recruitment, and outreach programs that target or appeal to historically underrepresented groups, or it could mean providing remedial, financial, or other forms of support to individuals from those groups. The Committee may wish to explore with the author what specific policies this would permit that are not permitted under existing law.

Proposed author’s amendments. The author wishes to take the following clarifying amendment in this Committee:

• On page 1, line 7, page 2, line 11, and page 2 line 15 change “enrollment” to admissions and enrollment.

Amendment that the author may wish to consider. While this measure is admirably concise and straightforward, a seeming redundancy in one of the provisions might cause confusion. Subdivision (a) sets out the substantive prohibition against discriminating against, or granting preferences to, any person or group on the basis of the protected characteristics in areas of “public employment, higher education admissions and enrollment, and public contracting.” Proposed subdivision (b) states: “This section shall apply only to action taken after the section’s effective date and is limited to the areas of public employment, higher education admissions and enrollment, and public contracting.” The purpose of the italicized language is not entirely clear. Subdivision (a) already states that the section only applies to the three stated areas, so it is not clear why it is necessary to state again that it only applies to those areas. If this language is intended to do something more than restate what is already achieved in subdivision (a), then that “something more” needs to be clarified. If the language does not do anything more than reiterate the scope of subdivision (a), then it should be deleted.

ARGUMENTS IN SUPPORT: Education Trust West, an organization committed to advancing policies and practices that dismantle the racial and economic barriers embedded in California’s educational system, supports this constitutional amendment for the following reasons:

This measure would amend the California constitution to permit use of race in public education policy, excluding higher education enrollment.

As explained in our recent publication “Black Minds Matter,” (Black Minds Matter: Building Bright Black Futures) research and data on public education show significant racial disparities in opportunity and achievement. In many cases, these disparities are rooted in race. ACA 7 recognizes this and would permit targeted, research-based interventions that improve educational outcomes. Without ACA 7, we’ll continue to struggle to close opportunity and achievement gaps as no effective proxy for race has been found to target educational interventions and resources.

ARGUMENTS IN OPPOSITION: The Pacific Legal Foundation writes in opposition:

ACA 7 is a step backwards from equality. Permitting the government to treat individuals differently and distribute benefits on the basis of race will undoubtedly disadvantage individuals based on traits that they cannot control. “A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” For a state as diverse as California, discriminatory distribution of benefits on the basis of race is grievously and needlessly destructive to equality and opportunity for Californians of all races and ethnicities. By permitting the government to base opportunity on traits that individuals cannot control, ACA 7 will remove the ability of Californians to control their own destinies through their personal skills, qualities, and lived experiences. Californians cannot live freely if ACA 7 allows the government to discriminate against them in this way.

While ACA 7 preserves the prohibition on discrimination in higher education enrollment, it will permit the government to discriminate in all aspects of K-12 education and all other aspects pertaining to colleges and universities. This uneven and inconsistent preservation of equality and opportunity fails to fully live up to the guarantee of the equal protection of the laws under the Fourteenth Amendment to the United States Constitution.

REGISTERED SUPPORT / OPPOSITION:

Support

The Education Trust West

Opposition

Californians for Equal Rights Foundation

Pacific Legal Foundation

Analysis Prepared by: Tom Clark / JUD. / (916) 319-2334

Date of Hearing: April 22, 2025

ASSEMBLY COMMITTEE ON HIGHER EDUCATION

Mike Fong, Chair

ABPCA Bill Id:ACA 7 (

Author:Jackson) – As Introduced Ver:February 13, 2025

[Note: This bill is double referred to the Assembly Judiciary Committee, where the Committee will hear it as it relates to the issues under its jurisdiction.]

SUBJECT: Government preferences

SUMMARY: Amends the California State Constitution, upon approval of the voters of California, to narrow the scope of the State’s prohibition in granting preferential treatment on the basis of race, sex, color, ethnicity, or national origin to the areas of public employment, higher education enrollment, and public contracting. Specifically, this Constitutional Amendment:

1. Removes public education from the list of State operations which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.
2. Adds “higher education enrollment” to the list of State operations which are prohibited from discriminating against or granting preferential treatment to, any individual or group, on the basis of race, sex, color, ethnicity, or national origin.
3. States the prohibition on discrimination and the granting of preferential treatment shall only apply to actions of the State after the section’s effective date and is limited to the areas of public employment, higher education enrollment, and public contracting.
4. Makes various technical and clarifying changes to the section of the California Constitution.

EXISTING LAW: United States Constitution.

1. Declares all people born or naturalized in the United States are citizens of the United States and are citizens of the state where they reside. Prohibits any state from making or enforcing any law that abridges the privileges or immunities of citizens of the United States. Prohibits any state from depriving any person of life, liberty, or property, without due process of law. Prohibits any state from denying any person within its jurisdiction the equal protection of the law (The United States Constitutions, Amendment 14, the Equal Protections Clause).

Federal law.

1. No person in the United States will, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance except for specified circumstances including membership of fraternities and sororities (20 USC 1681-1688…Title IX).
2. Prohibits discrimination on the basis of race, color, or/and national origin in programs and activities receiving federal assistance (42 USC 2000d et seq…Title VI of the Civil Rights Act of 1964).
3. Prohibits discrimination in employment based on race, color, religion, sex or national origin and prohibits retaliation against employees who evoke their rights under Title VII of the Civil Rights Act of 1964 (42 USC 2000e…Title VII of the Civil Rights Act).

California State Constitution.

1. Prohibits the State, in the operation of public employment, public education, or public contracting, from discriminating against or granting preferential treatment to any individual or any group on the basis of race, sex, color, ethnicity, national origin. States the implementation is to comply with federal laws and the US Constitution and defines the “state” to include the public university system (including the University of California). Nothing in the aforementioned clause is to be interpreted as:
   1. Prohibiting bona fide qualifications based on sex, which are reasonably necessary to the normal operation of public employment, public education, or public contracting;
   2. 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;
   3. Invalidating any court order or consent decree, which is in force as the effective date of the section (Section 31 of Article 1 of the California State Constitution…(Proposition 209)).

State law.

1. States no person is to be subjected to discrimination on the basis of disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or any characteristic listed or defined in Section 11135 of the Government Code or any other characteristic that is contained in the prohibition of hate crimes, as defined in subdivision (a) of Section 422.6 of the Penal Code, including immigration status. States the prohibition on the discrimination on the basis of the listed characteristics is extended to programs or activities conducted by any postsecondary education institution that receives or benefits from, state financial assistance or enrolls students who receive state financial aid (Education Code Section 66270).

FISCAL EFFECT: Unknown.

COMMENTS: Purpose of the measure. As described by the author, “ACA 7 seeks to provide clarity to existing legislation concerning Proposition 209, also known as Article I, Section 31 of the California Constitution. For too long, the provisions of this law have been subject to broad interpretation, leaving Californians without a clear understanding of its intended application. This measure introduces clarifying language and makes a modest adjustment to focus specifically on ‘higher education enrollment.’ These changes will help ensure a more accurate interpretation of the state constitution, allowing its provisions to be implemented as originally intended.”

Background on Proposition 209. After years of advocacy and urgency by national leaders, the Civil Rights Act of 1964 was enacted to outlaw segregation and prohibit discrimination on the basis of race, color, religion, sex, national origin, disability, or age in various arenas of public life; including, but not limited to public education, public contracting, and public employment.^[1] Heralded as the a first step in providing a free and equal society, the passing of the Civil Rights Act of 1964 was only one part of the Federal Government’s approach to guaranteeing equal treatment for every American. In addition to the passing of the landmark act, President Lyndon Johnson issued Executive Order 11246 requiring the federal government to take affirmative action to address previously discriminatory practices in the hiring and employing of marginalized individuals underrepresented in public employment.^[2] Over the next few decades, Federal agencies and State governments introduced affirmative action policies to provide greater access to educational and employment opportunities for historically marginalized groups affected by systemic discrimination.^[3] The Civil Rights Act of 1964 may have provided the space for everyone to have access, but it was affirmative action, which provided the necessary supports to help make the access a reality. Affirmative action initiatives are “any measure, beyond simple termination of a discriminatory practice, adopted to correct or compensate for past or present discrimination or to prevent discrimination from recurring in the future.”^[4]

Over the next few decades various court cases including Regents of University of California v. Bakke (1978) 438 U.S. 265, challenged the scope of affirmative action initiatives and the public discord became politically charged with many viewing affirmative action as “reverse discrimination.”³ In the wake of growing concern around the correlation between affirmative action and discrimination, the University of California (UC) Board of Regents passed the country’s first affirmative action ban in 1995, ending the practice of using race, religion, sex, color, ethnicity, or national origin as a criteria in admissions, contracting, and hiring practices at the UC.^[5] In the wake of the UC decision, California became the first state to place a proposition on the ballot to create a “prohibition against discrimination or preferential treatment by the state and other public entities.”^[6]

According to the Legislative Analyst’s Office, Proposition 209 would “eliminate state and local government affirmative action programs in the areas of public employment, public education, and public contracting to the extent these programs involve ‘preferential treatment’ based on race, sex, color, ethnicity, or national origin.”⁵ In higher education, the proposition would impact a variety of assistance programs for students, faculty and staff that provided targeted assistance to individuals based on individuals. These targeted programs included specialized tutoring, financial aid, outreach, and counseling.⁵

Proponents of the proposition argued that, “the only honest and effective way to address inequality of opportunity is by making sure that all California children are provided with the tools to compete in our society. And then let them succeed on a fair, color-blind, race-blind, gender-blind basis. Let's not perpetuate the myth that ''minorities" and women cannot compete without special preferences. Let's instead move forward by returning to the fundamentals of our democracy: individual achievement, equal opportunity and zero tolerance for discrimination against, or, for any individual.”^[7]

Opponents of the proposition argued, “Proposition 209 highjacks civil rights language and uses legal lingo to gut protections against discrimination. Proposition 209 says it eliminates quotas, but in fact, the U.S. Supreme Court already decided twice that they are illegal. Proposition 209's real purpose is to eliminate affirmative action equal opportunity programs for qualified women and minorities including tutoring, outreach, and mentoring.”^[8]

In November 1996, Proposition 209 passed with a majority voting (54.55%) in favor of the constitutional amendment. In the intervening years, a myriad studies reported the outcomes Proposition 209 had on public contracting, public employment, and public education. In 2008, the Thelton E. Henderson Center for Social Justice published a report entitled, “Proposition 209 and Public Employment in California Trends in Workforce Diversity,” which determined:

“the State of California has provided employment opportunities for people of color and women of all races. However lingering and even increased disparity still exists, particularly for Latino Americans and women, and should be rectified.”^[9]

Research on college admissions showed an almost immediate disproportionality in the admission of minority students to the UC.² However, it is unclear if this disparity can solely be attributed to the impact of Proposition 209 on admissions, as there is a “substantial difference in the share of high school students completing the college preparatory courses required for UC admission.”^[10]

In January 2015, a study conducted by Equal Justice Society, found Proposition 209 resulted in an annual loss of $1 billion in revenue for minority and women business enterprises due to the end of race-conscious contracting programs.^[11]

Since 1996, there have been four legislative attempts to either repeal or reduce the scope of Proposition 209 on public contracting, public education, and public employment. Of the four attempts only one has made it onto the ballot. In 2020, ACA 5 (Weber), Chapter 23, Statues of 2020 or Proposition 16 sought to repeal the provisions of Proposition 209. Proposition 16 was heralded as an opportunity for California to reintroduce affirmative action which “level[s] the playing field by allowing policymakers to consider race and gender–without quotas–when making decisions about contracts, hiring and education to eliminate systemic discrimination and remedy past harm.”^[12] Opponents to Proposition 16 maintained the rhetoric that the repeal of Proposition 209 was prejudicial by nature because, “only by treating everyone equally can a state as brilliantly diverse as California be fair to everyone.”^[13] Proposition 16 failed with the majority of Californians voting to uphold the existing ban on discrimination and preferential treatment in State operations of public employment, public contracting, and public education.

ACA 7 implications on public education. ACA 7 (Jackson) would provide an opportunity for voters to re-examine the scope of Proposition 209 and to align the California Constitutional Article with a recent U.S. Supreme Court decision for collegiate admissions. In 2023, the U.S. Supreme Court determined the admissions programs at Harvard College and the University of North Carolina violated the equal protections clause of the 14^th Amendment of the U.S. Constitution when colleges considered race as a criteria in admission decisions.^[14] The decision effectively ended affirmative action in admissions across the United States; except for in California, where Proposition 209 already prohibited the public university system from using race as a criteria for admissions.

Currently, Proposition 209 applies to more than just admissions and enrollment in higher education. The prohibition on discriminatory practices and preferential treatment based on race, sex, color, ethnicity, or national origin includes every aspect of higher education operations funded by the State. Since the enactment of Proposition 209, public higher education institutions have sought to comply while also providing for a diverse student population through the creation of diversity, equity, and inclusion programs. Examples of diversity, equity, and inclusion program programs created to encourage a diverse student population include: Umoja, Puente, the Asian American, Native Hawaiian, and Pacific Islander Student Achievement Program, and the Native American Student Support and Success Program. Each of these programs receive state funds and provide additional supports to marginalized student groups; however, these programs are not perceived as violating Proposition 209 as the programs are not exclusionary in who they support. Additionally, admission officers at the California State University (CSU) and UC have also practiced applying diversity, equity, and inclusionary practices to admissions in order to avoid Proposition 209 violations. Both university systems have adopted a holistic approach, which considers the applicants full history taking into account systemic barriers a student may have encountered and overcome.

ACA 7 (Jackson) removes public education from the list of State operations expressly prohibited by the California Constitution from discriminating against or providing preferential treatment based on certain characteristics; however, it would not remove the legal obligation for public education entities to comply with State and Federal Civil Rights Laws. Proposition 209 is not an isolated law in its prohibition against discriminatory practices. Even if, ACA 7 (Jackson) were to pass the Legislature and the voters of California were to affirm the language, the measure would not result in discriminatory practices or preferential treatment for individuals based on race, sex, gender, ethnicity, or national origin in the operations of public education. Nor would the measure result in the return of affirmative action programs to K-12 local education agencies or public higher education agencies.

By removing the term “public education” from Proposition 209, ACA 7 (Jackson) may have the unintended consequence of removing all the existing diversity, equity, and inclusion programs currently offered in California public education system. On February 14, 2025, the United States Department of Education Office for Civil Rights issued a “Dear Colleague Letter” stating the following:

“Relying on non-racial information as a proxy for race, and making decisions based on that information, violates the law. That is true whether the proxies are used to grant preferences on an individual basis or a systematic one. It would, for instance, be unlawful for an educational institution to eliminate standardized testing to achieve a desired racial balance or to increase racial diversity.

Other programs discriminate in less direct, but equally insidious, ways. DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.

The Department will no longer tolerate the overt and covert racial discrimination that has become widespread in this Nation’s educational institutions. The law is clear: treating students differently on the basis of race to achieve nebulous goals such as diversity, racial balancing, social justice, or equity is illegal under controlling Supreme Court precedent.

All students are entitled to a school environment free from discrimination. The Department is committed to ensuring those principles are a reality.”

As the Federal Administration continues to conflate diversity, equity, and inclusion with discrimination, it is possible by removing “public education” from Proposition 209, ACA 7 (Jackson) would remove a legal defense used by public education institutions in California to ward off attacks from the Federal Administration. When the “Dear Colleague Letter” was issued the UC provided the following statement to the Los Angeles Times, “the letter ‘provides guidance on the department’s interpretation of existing anti-discrimination laws and does not name any specific institution,’ the statement said. ‘It indicates how OCR [Office of Civil Rights] intends to enforce these legal requirements. Given the UC’s compliance with Proposition 209, we do not use race-based preferences in our practices.’”^[15] Given this understanding from the UC, it is possible even with the removal of “public education” from Proposition 209, the state public education system would continue to act as if it was in place.

Committee staff note there are currently three California public higher education institutions under investigation by the U.S. Department of Education for violating their interpretation of Title VI, pursuant to the Dear Colleague Letter. At the time of the publication of this analysis, there were no additional details regarding the investigations beyond the press release announcing the investigations.^[16]

Arguments in support. As stated by EdTrust – West, “this measure would amend the California constitution to permit use of race in public education policy, excluding higher education enrollment. As explained in our recent publication “Black Minds Matter,” (Black Minds Matter: Building Bright Black Futures) research and data on public education show significant racial disparities in opportunity and achievement. In many cases, these disparities are rooted in race. ACA 7 recognizes this and would permit targeted, research-based interventions that improve educational outcomes. Without ACA 7, we’ll continue to struggle to close opportunity and achievement gaps as no effective proxy for race has been found to target educational interventions and resources.”

Arguments in opposition. As stated by the Pacific Legal Foundation, “While ACA 7 preserves the prohibition on discrimination in higher education enrollment, it will permit the government to discriminate in all aspects of K-12 education and all other aspects pertaining to colleges and universities. This uneven and inconsistent preservation of equality and opportunity fails to fully live up to the guarantee of the equal protection of the laws under the Fourteenth Amendment to the United States Constitution. Adherence to the Fourteenth Amendment mandates that ‘[e]liminating racial discrimination means eliminating all of it.’ It is thus insufficient under our constitution that government cannot discriminate in higher education enrollment but can discriminate everywhere else. Opposing ACA 7 will uphold the promise of equality that Proposition 209 protects. Since the passage of Proposition 209, Californians have consistently given strong support to the constitutional prohibition on racial preferences and discrimination. In 2020, Californians defeated Proposition 16 in a landslide, rejecting an amendment to repeal Proposition 209. And in 2024, an attempt to permit broad exceptions to Proposition 209 was unsuccessful when the Legislature failed to pass ACA 7.”

Moving forward comment. Currently, ACA 7 (Jackson) changes the provision of the California Constitution to address the higher education operation of enrollment. Technically, enrollment is after a student is admitted to a college or university and begins to select courses for “enrollment” in a specific field of study. Admission is the process of being “admitted” to a college, university, or specified program.

Given the author’s intent to have the measure reflect the original intention of the original proposition, the author may wish to amend the language to include “higher education admissions and enrollment.”

REGISTERED SUPPORT / OPPOSITION:

Support

The Education Trust - West

Oppose

Californians for Equal Rights Foundation
Pacific Legal Foundation

Analysis Prepared by: Ellen Cesaretti-Monroy / HIGHER ED. / (916) 319-3960

1. https://www.archives.gov/milestone-documents/civil-rights-act#:~:text=This%20act%2C%20signed%20into%20law,civil%20rights%20legislation%20since%20Reconstruction. ↑

2. https://www.californialawreview.org/print/aa-ban-aftermath ↑

3. https://www.ebsco.com/research-starters/politics-and-government/affirmative-action ↑

4. https://www.aaaed.org/aaaed/About_Affirmative_Action__Diversity_and_Inclusion.asp ↑

5. https://regents.universityofcalifornia.edu/governance/policies/4401.html ↑

6. https://lao.ca.gov/ballot/1996/prop209_11_1996.html ↑

7. https://vigarchive.sos.ca.gov/1996/general/pamphlet/209yesarg.htm ↑

8. https://vigarchive.sos.ca.gov/1996/general/pamphlet/209yesrbt.htm ↑

9. https://www.law.berkeley.edu/wp-content/uploads/2016/07/Proposition-209-and-Public-Employment-Workforce-Diversity.pdf ↑

10. https://www.ppic.org/blog/affirmative-action-and-higher-education-in-california/?utm_source=rss&utm_medium=rss&utm_campaign=affirmative-action-and-higher-education-in-california?utm_source=ppic&utm_medium=email&utm_campaign=blog_subscriber ↑

11. https://equaljusticesociety.org/wp-content/uploads/2019/10/ejs-impact-prop-209-mwbes.pdf ↑

12. https://law.pacific.edu/sites/default/files/users/user242/proposition-16-cir20.pdf ↑

13. https://vig.cdn.sos.ca.gov/2020/general/pdf/complete-vig.pdf ↑

14. https://www.scotusblog.com/case-files/cases/students-for-fair-admissions-inc-v-president-fellows-of-harvard-college/ ↑

15. https://www.latimes.com/california/story/2025-02-17/education-department-will-cut-funding-unless-schools-abolish-dei ↑

16. https://www.ed.gov/about/news/press-release/office-civil-rights-initiates-title-vi-investigations-institutions-of-higher-education-0 ↑