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California Proposition 209 (1996)
Encyclopedia
Proposition 209 is a California ballot proposition
which, upon approval in November 1996, amended
the state constitution to prohibit public institutions from considering race, sex
, or ethnicity
. It had been supported and funded by the California Civil Rights Initiative Campaign, led by University of California
Regent
Ward Connerly
. Co-Chair of the Campaign was law professor Gail Heriot, who is currently a member of the United States Commission on Civil Rights. The initiative was opposed by affirmative action
advocates and supporters. Proposition 209 was voted into law on 5 November 1996, with 54 percent of the votes. In the November 2006 election in Michigan, a similar amendment was passed, entitled the Michigan Civil Rights Initiative
.
blocked enforcement of the proposition. A three-judge panel of the 9th Circuit Court of Appeals
subsequently overturned that ruling. Proposition 209 has been the subject of many lawsuits in state courts since its passage.
Since the passage of Proposition 209, higher graduation rates have been posted at University of California
schools, which led opponents of affirmative action
to suggest a causal link between Proposition 209 and a better-prepared student body. The African American
graduation rate at the University of California, Berkeley
increased by 6.5 percent, and rose even more dramatically, from 26 percent to 52 percent, at the University of California, San Diego
.
While African American graduation rates at UC Berkeley increased by 6.5 percent, the enrollment rates dropped significantly. Criticism was made of the fact that of the 4,422 students in UCLA's freshman class of 2006, only 100 (2.26%) were African American. In fact, opponents of Proposition 209 note that there are greater disparities in elite education in the post-Proposition 209 era due to decreased African American and Latino
enrollment. Proponents, on the other hand, note that Asian American
enrollment rates dramatically increased at a majority of UC campuses.
On 2 August 2010, the Supreme Court of the state of California found for the second time that Proposition 209 was constitutional. The ruling, by a 6-1 majority, followed an earlier unanimous affirmation of the constitutionality of Prop. 209 by the same court.
(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, or public contracting.
(b) This section shall apply only to action taken after the section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.
(f) For the purposes of this section, "state" 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 party's 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.
Opponents of Proposition 209 argued that it would end affirmative action practices of tutoring, mentoring, outreach and recruitment of women and minorities in California universities and businesses. Immediately after passage of Proposition 209, students held demonstrations and walk-outs in protest at several universities including UCLA
, U.C. Berkeley
, U.C. Santa Cruz
, and San Francisco State University
.
On September 1st 2011, SB 185 passed both chambers of the California State Legislature, but was vetoed by Governor Jerry Brown. SB 185 would have countered Proposition 209 and authorized the University of California and the California State University to consider race, gender, ethnicity, and national origin, along with other relevant factors, in undergraduate and graduate admissions, to the maximum extent permitted by the 14th Amendment to the United States Constitution, Section 31 of Article I of the California Constitution, and relevant case law. SB 185 is strongly supported by the University of California Students Association
.
to provide community and financial support for underrepresented students at the University of California, Berkeley.
Private universities and colleges, as well as employers, are not subject to Proposition 209 and many continue to administer traditional affirmative action programs.
California ballot proposition
In California, a ballot proposition is a proposed law that is submitted to the electorate for approval in a direct vote . It may take the form of a constitutional amendment or an ordinary statute. A ballot proposition may be proposed by the State Legislature or by a petition signed by members of...
which, upon approval in November 1996, amended
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
the state constitution to prohibit public institutions from considering race, sex
Sex
In biology, sex is a process of combining and mixing genetic traits, often resulting in the specialization of organisms into a male or female variety . Sexual reproduction involves combining specialized cells to form offspring that inherit traits from both parents...
, or ethnicity
Ethnic group
An ethnic group is a group of people whose members identify with each other, through a common heritage, often consisting of a common language, a common culture and/or an ideology that stresses common ancestry or endogamy...
. It had been supported and funded by the California Civil Rights Initiative Campaign, led by University of California
University of California
The University of California is a public university system in the U.S. state of California. Under the California Master Plan for Higher Education, the University of California is a part of the state's three-tier public higher education system, which also includes the California State University...
Regent
Regents of the University of California
The Regents of the University of California make up the governing board of the University of California. The Board has 26 full members:* The majority are appointed by the Governor of California for 12-year terms....
Ward Connerly
Ward Connerly
Wardell Anthony "Ward" Connerly is an American political activist, businessman, and former University of California Regent . He is also the founder and the chairman of the American Civil Rights Institute, a national non-profit organization in opposition to racial and gender preferences...
. Co-Chair of the Campaign was law professor Gail Heriot, who is currently a member of the United States Commission on Civil Rights. The initiative was opposed by affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
advocates and supporters. Proposition 209 was voted into law on 5 November 1996, with 54 percent of the votes. In the November 2006 election in Michigan, a similar amendment was passed, entitled the Michigan Civil Rights Initiative
Michigan Civil Rights Initiative
The Michigan Civil Rights Initiative , or Proposal 2 , was a ballot initiative in the U.S. state of Michigan that passed into Michigan Constitutional law by a 58% to 42% margin on November 7, 2006, according to results officially certified by the Michigan Secretary of State. By Michigan law, the...
.
Brief history
On 27 November 1996, U.S. District Court Judge Thelton HendersonThelton Henderson
Thelton Eugene Henderson is currently a federal judge in the Northern District of California. He has played an important role in the field of civil rights as a lawyer, educator, and jurist.-Career:...
blocked enforcement of the proposition. A three-judge panel of the 9th Circuit Court of Appeals
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
subsequently overturned that ruling. Proposition 209 has been the subject of many lawsuits in state courts since its passage.
Since the passage of Proposition 209, higher graduation rates have been posted at University of California
University of California
The University of California is a public university system in the U.S. state of California. Under the California Master Plan for Higher Education, the University of California is a part of the state's three-tier public higher education system, which also includes the California State University...
schools, which led opponents of affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
to suggest a causal link between Proposition 209 and a better-prepared student body. The African American
African American
African Americans are citizens or residents of the United States who have at least partial ancestry from any of the native populations of Sub-Saharan Africa and are the direct descendants of enslaved Africans within the boundaries of the present United States...
graduation rate at the University of California, Berkeley
University of California, Berkeley
The University of California, Berkeley , is a teaching and research university established in 1868 and located in Berkeley, California, USA...
increased by 6.5 percent, and rose even more dramatically, from 26 percent to 52 percent, at the University of California, San Diego
University of California, San Diego
The University of California, San Diego, commonly known as UCSD or UC San Diego, is a public research university located in the La Jolla neighborhood of San Diego, California, United States...
.
While African American graduation rates at UC Berkeley increased by 6.5 percent, the enrollment rates dropped significantly. Criticism was made of the fact that of the 4,422 students in UCLA's freshman class of 2006, only 100 (2.26%) were African American. In fact, opponents of Proposition 209 note that there are greater disparities in elite education in the post-Proposition 209 era due to decreased African American and Latino
Latino
The demonyms Latino and Latina , are defined in English language dictionaries as:* "a person of Latin-American descent."* "A Latin American."* "A person of Hispanic, especially Latin-American, descent, often one living in the United States."...
enrollment. Proponents, on the other hand, note that Asian American
Asian American
Asian Americans are Americans of Asian descent. The U.S. Census Bureau definition of Asians as "Asian” refers to a person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian subcontinent, including, for example, Cambodia, China, India, Indonesia, Japan,...
enrollment rates dramatically increased at a majority of UC campuses.
On 2 August 2010, the Supreme Court of the state of California found for the second time that Proposition 209 was constitutional. The ruling, by a 6-1 majority, followed an earlier unanimous affirmation of the constitutionality of Prop. 209 by the same court.
Text
The text of Proposition 209 was drafted by Cal State anthropology professor Glynn Custred and California Association of Scholars executive director Thomas Wood. Its passage amended the California Constitution to include a new section (Section 31 of Article I), which now reads:(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, or public contracting.
(b) This section shall apply only to action taken after the section's effective date.
(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.
(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.
(f) For the purposes of this section, "state" 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 party's 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.
Support
Supporters of Proposition 209 contended that existing affirmative action programs led public employers and universities to reject applicants based on their race, and that Proposition 209 would "restore and recreate the historic Civil Rights Act."Organizations in support
Opposition
University of California, Los Angeles
The University of California, Los Angeles is a public research university located in the Westwood neighborhood of Los Angeles, California, USA. It was founded in 1919 as the "Southern Branch" of the University of California and is the second oldest of the ten campuses...
, U.C. Berkeley
University of California, Berkeley
The University of California, Berkeley , is a teaching and research university established in 1868 and located in Berkeley, California, USA...
, U.C. Santa Cruz
University of California, Santa Cruz
The University of California, Santa Cruz, also known as UC Santa Cruz or UCSC, is a public, collegiate university; one of ten campuses in the University of California...
, and San Francisco State University
San Francisco State University
San Francisco State University is a public university located in San Francisco, California. As part of the 23-campus California State University system, the university offers over 100 areas of study from nine academic colleges...
.
On September 1st 2011, SB 185 passed both chambers of the California State Legislature, but was vetoed by Governor Jerry Brown. SB 185 would have countered Proposition 209 and authorized the University of California and the California State University to consider race, gender, ethnicity, and national origin, along with other relevant factors, in undergraduate and graduate admissions, to the maximum extent permitted by the 14th Amendment to the United States Constitution, Section 31 of Article I of the California Constitution, and relevant case law. SB 185 is strongly supported by the University of California Students Association
University of California Students Association
The University of California Students Association is a higher education student advocacy group organized to voice the interests of students attending the University of California system. It has been noted for its opposition to education funding cuts and increases in student fees and for its...
.
Organizations in opposition
Results
Private sector response
One response to Proposition 209 was the establishment of the IDEAL Scholars FundIDEAL Scholars Fund
The Initiative for Diversity in Education and Leadership Scholars Fund, a program of the Level Playing Field Institute, was founded in 2001 by a group of University of California, Berkeley alumni, including Freada Klein...
to provide community and financial support for underrepresented students at the University of California, Berkeley.
Private universities and colleges, as well as employers, are not subject to Proposition 209 and many continue to administer traditional affirmative action programs.
See also
- Regents of the University of California v. BakkeRegents of the University of California v. BakkeRegents of the University of California v. Bakke, was a landmark decision of the Supreme Court of the United States that ruled unconstitutional the admission process of the Medical School at the University of California at Davis, which set aside 16 of the 100 seats for African American...
- Grutter v. BollingerGrutter v. BollingerGrutter v. Bollinger, 539 U.S. 306 , was a case in which the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School...
- Gratz v. BollingerGratz v. BollingerGratz v. Bollinger, 539 U.S. 244 , was a United States Supreme Court case regarding the University of Michigan undergraduate affirmative action admissions policy...
Scholarship and commentary
- Heriot, Gail (2001). University of California Admissions under Proposition 209: Unheralded Gains Face an Uncertain Future, NEXUS: A Journal of Opinion 6:163.
- Jamison, Cynthia C. (2004). The Cost of Defiance: Plaintiffs’ Entitlement to Damages Under the California Civil Rights Initiative, Southwestern Univ. Law Review 33:521.
- McCutcheon, Stephen R., Jr., & Travis J. Lindsey (2004). The Last Refuge of Official Discrimination: The Federal Funding Exception to California’s Proposition 209, 44 Santa Clara Law Review 457.
- Myers, Caitlin Knowles (2007). A Cure for Discrimination? Affirmative Action and the Case of California's Proposition 209, Industrial & Labor Relations Review 60:379.