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Will California voters pass Proposition 16 and bring back Affirmative Action?

In California today, African American and Latino students make up 60% of high school seniors in public schools statewide, and, yet they represent only 29% of undergraduates of the UC system at all campuses.

That statistic is “a measure of the dramatic disparities that we continue to see in the state of California that we are not able to address aggressively because of Proposition 209, enacted in1996,” said Thomas Saenz,  Chair of the Mexican American Legal Defense and Educational Fund (MALDEF), at an EMS telebriefing on September 18.

Saenz called the divisive measure which banned the use of Affirmative Action techniques in public education, a ‘misleadingly labelled California Civil Rights Initiative.”

Twenty four years after voters banned race and gender preferences in admissions to public universities in California, Proposition 209 is on the chopping block. In its stead, Proposition 16 is on the ballot to restore Affirmative Action in the upcoming November election.

The wrangling over race-based college admissions is part of an ongoing nationwide debate over Affirmative Action, which is under siege as it battles legal challenges by opponents in the Supreme Court. Last month, the Washington Post reported that the Department of Justice accused Yale University of illegal admissions discrimination against white and Asian American students.

In California which is already grappling with pandemic-driven economic and health crises, as well as blistering protests against racial injustices, overturning Prop. 209 is proving to be contentious for Affirmative Action advocates.

At the briefing, proponents of YES on Proposition16 sought to explain why they are seeking to repeal Prop. 29 on the November ballot. These civil rights leaders support Affirmative Action as an effective tool for bridging racial inequities in higher education and the workplace.

Over the last six months, the pandemic has exposed systemic inequities and disparities experienced by people of color, said Saenz.  A crippling economic recession, restrictive public health measures, and the police brutality that triggered the Black Lives Matter (BLM) movement, have forced the nation to acknowledge that communities of color face the brunt of systemic injustice and discrimination.

The pandemic has shown that higher rates of infection and death occur among communities of color, stated Saenz, while the economic recession has particularly hit African Americans, Latinos and Asian Americans, who have endured severe job loss and reduction in wages.

But, the BLM demonstrations which invigorated a necessary discussion on reforming law enforcement practices in the country, clearly frames why passing Prop 16 is vital.

Impact of Prop. 209

Prop. 209 is responsible for the shortage of qualified officers and sheriffs deputies in California, stated Saenz. Counties and cities in the state “could not engage in targeted hiring of Black, Latino or Asian American officers,” solely because of Prop. 209.

“What Prop. 209 did was to add a paragraph to the state Constitution, prohibiting the use of Affirmative Action techniques – race conscious, gender conscious techniques in public education, public employment and public contracting,” he commented.

It posed curbs on K-12 public education and higher education, that culminated in a dramatic drop in the number of African American and Latino students on University of California campuses, noted Saenz, adding that, “most notoriously, the University of California Law School at Berkeley ended up with just one African American student in the first class selected after Prop. 209.”

Proposition 209 passed in 1996 with 55% of the California vote, but, an LA Times exit poll reported that a super majority of voters opposed Prop 209 with 79%  Latino, 74% African American, 61 % of Asian Americans and 52 % of women of all races voting NO on the measure.

Twenty four years later the impact of Prop. 209 is still evident. But as demographics of voters have changed in California, said Saenz, he racially divisive measure would have had a totally different outcome if the percentages of “super majorities’ among voters of color in opposition to Prop 209 apply today. Now voters of color form almost 42% of registered voters in California, a substantially higher figure than those that went to the polls than1996.

The Supreme Court & Affirmative Action

Another change is that the US Supreme Court has considerably narrowed the circumstances under which any public entity can employ race or gender-based Affirmative Action, restrictions which will apply in California even if Prop 16 passes. It has has weighed in on Affirmative Action programs since 1996, said Saenz, citing cases from the University of Michigan and University of Texas as evidence. The upshot is that the Supreme Court has become much more ‘descriptive’ about what is permitted and what is required in pursuing Affirmative Action.

Since 1978, the Supreme Court has prohibited the use of quotas or ‘set asides’ based on race or gender in the public realm. It also has mandated that any public entity considering Affirmative Action must first undergo a ‘rigorous analysis’ of disparities and consideration of policy changes before they put in place a narrowly tailored program to consider race or gender. That would involve for example, examining disparities in the percentages of 12 graders versus undergraduates, identifying the causes of those disparities, and considering race or gender-neutral approaches to address them, before implementing Affirmative Action measures.

This could result in positive effects for all races and genders created as a result of Prop.16, noted Saenz. However, despite the Supreme Court requirement that predates Prop. 209, the UC system has prevented the rigorous examination of such disparities.  Prop. 209 unfortunately, has prevented state policymakers from engaging in the careful consideration of policy approaches that could help resolve the problem.

At its core, Affirmative Action is intended to correct socio-economic equities that go back generations. Together with the Supreme Court requirement for scrutiny, Prop. 16 will help eliminate biased criterion from hiring practices or university admissions in the public arena. For example, it could remove discriminatory standardized tests from the university admissions process, since they do not co-relate to student performance after their freshman year, and it would put pressure on policy makers to engage in the rigorous analysis of disparities.

Given the fallout of the pandemic on people of color, passing Prop. 16 is critical to the future of equal opportunity for people of color in California, reiterated Saenz.

The term Affirmative Action may have worn out its political welcome, but will California voters see Prop. 16 leveling the playing field or simply as a zero sum game?


Meera Kymal is a contributing editor at India Currents

Photo by Matteo Paganelli on Unsplash

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