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California Proposition 209 (1996)

Proposition 209 was a 1996 California ballot proposition which 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, and opposed by affirmative action advocates and supporters. Proposition 209 was voted into law on 5 November 1996, with 54 percent of the vote. In the November 2006 election in Michigan, a similar amendment was passed, entitled the Michigan Civil Rights Initiative.

Brief History

On 27 November 1996, U.S. District Court Judge Thelton Henderson 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. Still, this observation fails to take into consideration that though Asian Americans are a racial minority in the United States, they are generally an overrepresented group in college admissions and significantly less likely to be from a family living in poverty

Text

The passage of proposition 209 amended the California Constitution to include a new section (Section 31 of Article I), which 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.

Use of Proxies

Wall Street Journals reported that "In the handful of states that have already banned or restricted affirmative action, some universities use what many educators call "proxies" -- ostensibly race-neutral criteria, such as interest in Critical Race Studies, that mainly attract minority applicants." Students which express interest in program such as Critical Race Studies program are held to a lower standard of grades and test scores.

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

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 U.C. Berkeley, U.C. Santa Cruz, and San Francisco State University.

Organizations in opposition

Private sector response

One response to Proposition 209 was the establishment of the IDEAL Scholars Fund 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.

References

Scholarship & Commentary

Hadley, Eryn (2005). Did the Sky Really Fall? Ten Years After California’s Proposition 209, BYU Journal of Public Law 20:103.
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.