California Proposal Could Bring Back Affirmative Action (1)

June 10, 2020, 7:00 PMUpdated: June 11, 2020, 1:28 AM

The California Assembly on Wednesday passed a proposed constitutional amendment to toss a decades-old affirmative action ban during nationwide protests over racial inequality and police brutality sparked by the death of George Floyd in the custody of Minneapolis police.

The measure (ACA 5) would strike language that was added to the state constitution after a majority of Californians voted for Proposition 209 in 1996. Lawmakers advanced the amendment 58-9 on party lines, reaching the two-thirds majority threshold to send it to the state Senate, where it must also pass with two-thirds of the vote before a June 25 deadline. It then would be on the Nov. 3 general election ballot.

Proposition 209 prohibited the state from considering gender, race, or ethnicity when hiring a state worker, signing a government contract, or admitting a student to a public university. California is one of eight states that prohibit such quotas. The others are Arizona, Florida, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington.

“I ask you today to give Californians a chance,” Assemblywoman Shirley Weber (D), one of the authors of the constitutional amendment, said before the vote. “Give us the opportunity to vote on this.”

Introduced in January, the measure comes before the Legislature after weeks of unrest that began with the death of Floyd on May 25. The protests have sparked a national conversation on improving legal and economic equality for people of color. California was also the setting for the U.S. Supreme Court’s landmark decision on affirmative action in Regents of University of California v. Bakke in 1978.

“It is going to be a particularly important moment in California legislative history,” said Cheryl Sabnis, an employment attorney with King & Spalding LLP in San Francisco.

Predictions for the proposal’s eventual passage are murky. A similar measure died in the Legislature in 2014 after meeting opposition from Chinese-American legislators, who felt the repeal of Proposition 209 would disadvantage Asians in university admissions. ACA 5 is vehemently rejected by several Asian-American organizations, and dozens of members of the community submitted public comments against it.

Studies show that Proposition 209 suppressed the hiring of women and people of color statewide. A 2008 University of California, Berkeley, report found that the law “may have limited workforce diversity for people of color and women” in its first decade of implementation.

Women-owned and minority-owned businesses lose more than $1.1 billion per year in government contracts because of Proposition 209, according to a 2015 study commissioned by the Equal Justice Society. And Weber, lead author of the proposed amendment, said she saw city contracts with women and minority-owned businesses dwindle to just 1.5% while leading San Diego’s Citizens’ Equal Opportunity Commission.

“Probably the greatest decline we’ve seen has been in the area of business,” Weber said in an interview.

Despite Proposition 209, municipalities have undertaken programs to promote the hiring of women and people of color that have drawn legal challenges from the building industry. In 2000, the California Supreme Court struck down a San Jose ordinance that required a percentage of women and minority subcontractors for public works projects. The plaintiff, Hi-Voltage Wire Works Inc., sued the city after the company’s bid was rejected for failing to meet the quotas.

Ten years later, the state Supreme Court again ruled mostly in favor of two other construction companies that sued San Francisco over a similar ordinance.

Opponents of ACA 5 say the measure violates the 14th Amendment of the U.S. Constitution, which gives all U.S. citizens equal protection under the law.

“We’re definitely going to take a hard look at that and see whether it complies with the 14th Amendment, or whether it violates the constitutional principle of equality before the law,” Wen Fa, an attorney with the Pacific Legal Foundation said in an interview. “Racial preferences are wrong, no matter who they benefit.”

(Updated with vote count and additional reporting. Changes in first, second, fourth and ninth paragraphs.)

To contact the reporter on this story: Tiffany Stecker in Sacramento, Calif. at tstecker@bgov.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Karl Hardy at khardy@bloomberglaw.com; Meghashyam Mali at mmali@bloombergindustry.com

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