Tag Archives: Thomas Saenz

Will California Voters Bring Back Affirmative Action?

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

Thomas Saenz Is A Census Optimist

Editor’s Note: Amidst growing concerns over pandemic-related delays in the census deadline, one veteran voting rights activist finds reason to hope and sees potential for gains in representation by underserved groups, especially Latinos.

Thomas Saenz is that rare voting rights advocate who is optimistic about delays created by the COVID 19 pandemic in filling out census forms – and in submitting data for use in redistricting.

Delaying the deadline for data used to redraw voting districts for seats in the U.S. House and state legislatures will negatively affect elections in several states, redistricting reformers like Common Cause argue. They have asked Congress to review a request from the Census Bureau for a four month delay.

Saenz, president and general counsel of the Mexican American Legal defense and Educational Fund (MALDEF), sees the delay as a way to ensure a more accurate census count. That’s the key, he argues, to ensuring fairer political representation, whether on school boards, city councils, state legislative and congressional districts – even elections for local dog catcher.

Despite the low self-response rates for Latino areas, Saenz believes there’s a real potential for more Latino representation in the 2021 redistricting across the country.

“The low response rates were expected.  This delay gives not only the Census Bureau but  groups like NALEO, all of us, more time to get people to respond.  And the more time we get, the more complete the count.  Some people just take time to be convinced and often on the ordinary timeline, there’s not enough time to do that,” Saenz says.

“This was never going to be a great Census because of the Trump Administration which is the most divisive ever,” Saenz adds on reflection.  “But again, having more time is good.”

Saenz pins hopes on increases in the census count in Texas, where the gains in Latino immigration over the last decade have been dramatic.  “Even if the state is not investing any money in outreach, it’s projected Texas can get up to three new Congressional seats, and at least one or two of those should be Latinos.” He predicts push back from the state legislature, which conducts redistricting, unless the Democrats take the state house in the upcoming elections, Then, he says, it’s a different ball game.

California, on the other hand, may lose a seat but Saenz says it won’t be a Latino one.  “I expect to see a current seat that isn’t Latino becoming Latino.” And he expects to see a gain in Arizona and possibly one in Illinois, given the increase in both states’ Latino population.  “Illinois has one Latino majority seat and I expect it to become two, if the population has increased there as I expect it has. This might be the time”

Redistricting usually starts with the delivery of “apportionment counts” to the President on or before Jan 1  — the total population count of each state and the number of congressional seats to which each state is entitled based on that count.  The total number of seats is fixed at 435, but the population of each state determines whether they win or lose districts every 10 years.  Redrawing legislative districts based on census data usually begins on April 1, at the latest.

Because the whole Census operation has been delayed by the pandemic, the Census Bureau has asked Congress to extend the deadline for delivering data about Congress to April 30, 2021, and to the states to July 31, 2020.

Saenz sees potential pluses in delaying reapportionment of the House of Representatives from the end of December to April. It may actually mean a new President will be in office who won’t try to discount immigrants in the redistricting count, Saenz says.

Last July the Trump Administration issued an executive order to have departments collect “citizenship data” for the Census Bureau. It is a move widely seen as building the case for states to restrict redistricting counts to citizens only – rather than immigrants. The executive order came on the heels of the  Supreme Court’s ruling prohibiting the addition of a question about citizenship in the Census questionnaire.

Delaying state data will also allow a new president to “stop any mischief” regarding the use of citizenship data to exclude non citizens from redrawing legislative districts.  “A new administration can come in in a deliberate manner and stop that from going on… If more time is needed to gather and deliver the data,  they should not waste time on the executive order anyway. They must concentrate resources on tabulating the questionnaires, and not in having departments turn over citizenship data to the Census Bureau.”

One argument against postponing the data is that redistricting will be a rushed process. Here again, Saenz takes a pragmatic view.  “Texas is always a rushed process because the legislature is only in session for two months – March and April – and they have an early filing deadline for candidates in 2022.  In the worst case, they may have to change the deadline.  For us, if there is a legal challenge to their redistricting, it will be a burden, but it’s okay.”

In California, it’s not the legislature but a commission of appointees that oversees redistricting. Saenz says the commission can do some of its work before the data is released, starting with testimony from communities about their interests in being represented,  “They won’t know the numbers or be able to promote maps, but they can say: ‘We don’t want to split this area.’”

Redistricting advocates worry about Virginia and New Jersey which hold legislative e elections in 2021.  Saenz says, “Maybe they will have an election without new lines.  Is that a disaster? In my mind it’s not.”

For Saenz,  the significant increase in the Latino population over the last decade will create real opportunities for more political representation in the decade ahead.  More time  gives him reason to hope for a more accurate count.

EMS contributing editor Pilar Marrero is an author and veteran reporter for La Opinion.