| Proposition 16 | |
| California Assembly Constitutional Amendment No. 5 | |
| Country: | California |
| Location: | California, United States |
| Yes: | 7,217,064 |
| No: | 9,655,595 |
| Total: | 17,785,151 |
| Electorate: | 22,047,448 |
| State: | California |
| Full Name: | Assembly Constitutional Amendment No. 5 |
| Introduced: | 2019-01-18 |
| Assembly Voted: | 2020-06-10 (60-14)[1] |
| Senate Voted: | 2020-06-24 (30-10) |
| Sponsors: | Weber, Gipson, and Santiago |
| Governor: | Gavin Newsom |
| Code: | California state constitution, Section 31, Article 1 (Proposition 209) |
| Resolution: | ACA 5 |
| Url: | Full text of the bill |
Proposition 16 is a California ballot proposition that appeared on the November 3, 2020, general election ballot, asking California voters to amend the Constitution of California to repeal Proposition 209 (1996).[2] [3] Proposition 209 amended the state constitution to prohibit government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education.[4] Therefore, Proposition 209 banned the use of race- and gender-based affirmative action in California's public sector.[2] [4] [5]
The legislatively referred state constitutional amendment was originally introduced as California Assembly Constitutional Amendment No. 5 (ACA 5) by Democratic Assembly Members Weber, Gipson, and Santiago on January 18, 2019.[4] In June 2020, the California State Legislature passed ACA 5 on a mostly party-line vote, voting 60–14 on June 10 in the Assembly and 30–10 on June 24 in the Senate. The measure was defeated 57% to 43%.
Proposition 16 would have repealed 1996 California Proposition 209 which amended the California constitution and prohibits government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Before Proposition 209, state and local entities had policies and programs—collectively called "affirmative action"—intended to increase opportunities and representation for people who faced inequalities as a result of their race, sex, color, ethnicity, or national origin. For example, the state had established programs to increase the participation of women-owned and minority-owned businesses in public contracts and set goals for the portion of state contracts that were awarded to those types of businesses.
In 1996, California voters approved Proposition 209, adding a new section to the State Constitution as Section 31 of Article I. The new section generally banned the consideration of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting in California with limited exceptions. After voters approved Proposition 209, some public entities in California created or modified policies and programs to instead consider characteristics not banned by Proposition 209. For example, many California public universities provide outreach and support programs for students who are first in their family to attend college. Many university campuses also consider where students attended high school and where they live when making admissions decisions. The universities view these policies and programs as ways to increase diversity without violating Proposition 209.
The California and federal constitutions provide all people equal protection, which generally means that people in similar situations are treated similarly under the law. Federal law establishes a right to equal protection and as a result limits how "protected classes" such as race and gender may be used in decision-making. For example, under federal law, universities may consider these characteristics as one of several factors when making admission decisions in an effort to make their campuses more diverse. To ensure compliance with federal law, these policies and programs must meet certain conditions that limit the consideration of these characteristics. These conditions are intended to prevent discrimination that violates equal protection. State law also has a number of anti-discrimination provisions that are similar to those in federal law. Before Proposition 209, state and local policies and programs that considered race, sex, color, ethnicity, or national origin still had to comply with federal law. Since such discrimination was already illegal based on state law, federal law, and the Equal Protection Clause of the 14th Amendment, Proposition 209 effectively banned affirmative action within these public bodies.[6]
Affirmative action has its origins in Executive Order 10925, which was issued by President John F. Kennedy and required government contractors to "take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin."[7] Kennedy’s Executive Order was superseded by Executive Order 11246, which was issued by President Lyndon B. Johnson on September 24, 1965 and prohibits federal contractors and federally assisted construction contractors and subcontractors, who do business with the federal government, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin.[8] In 1967, President Johnson amended the order to include gender on the list of attributes. Executive Order 11246 also requires federal contractors to take affirmative action to promote the full realization of equal opportunity for women and minorities.[8] Since that time, various affirmative action programs have been created in California as well as the broader United States, to both redress disadvantages associated with past and present discrimination as well as ensure public institutions, such as universities, hospitals, and police forces, are more representative (e.g. by race or gender) of the populations they serve.[9] [10]
Led by University of California Regent Ward Connerly[11] and endorsed by Governor Pete Wilson,[12] Proposition 209 appeared on the ballot in California as a constitutional amendment on November 5, 1996 and was approved by voters.[13] Proposition 209 amended the Constitution of California to prohibit government institutions from "[discriminating] against, or [granting] 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." For these purposes, California's Constitution defines "the state" to include the state, any city, county, public university system, community college district, school district, special district, or any other political subdivision or governmental instrumentality of, or within, the state.[14]
Since the passage of Proposition 209, there have been several legislative attempts to repeal sections of Proposition 209. In 2011, SB 185 would have permitted affirmative action in public higher education, but was ultimately vetoed by Governor Brown citing possible conflicts with Proposition 209.[15] In 2014, California Senate Constitutional Amendment No. 5 would have done the similar if passed by voters, but was shelved due to strong opposition. Proposition 16 represents the first time a repeal of Proposition 209 has appeared on the ballot.
In Fisher v. University of Texas (2016) the Supreme Court held that public colleges and universities may consider race as one of many factors as part of their admissions decisions when race-neutral alternatives are insufficient to build a racially diverse student body. They may not use quotas or race-based point systems for this purpose, as the Supreme Court already ruled in Regents of the Univ. of Cal. v. Bakke (1978) and Gratz v. Bollinger (2003) that those affirmative actions schemes are federally unconstitutional. Prior to Proposition 209, some of California's public universities considered race and ethnicity as factors when making admissions decisions and offered programs to support the academic achievement of those students.[16] After Proposition 209, these considerations were banned.
Some public universities in California created or modified policies and programs to instead consider characteristics not banned by Proposition 209, such as socioeconomic status and geography. For example, UC Berkeley considers "contextual factors that bear directly upon the applicant’s achievement, including linguistic background, parental education level, and other indicators of support available in the home."[17] Moreover, all UC schools utilize a review that takes into account 14 factors including academic performance, special talents, and special circumstances.[18] According to the California legislative analyst, many of the state’s universities provide outreach and support programs for students who are first in their family to attend college. Many university campuses also consider where students attended high school and where they live when making admissions decisions. The universities view these policies and programs as ways to increase diversity without violating Proposition 209.
A longitudinal study by UC Berkeley Center for Studies in Higher Education researcher and then-economics PhD candidate Zachary Bleemer on the impact of Proposition 209 on student outcomes using a difference-in-difference research design and a newly-constructed database linking all 1994-2002 University of California applicants to their college enrollment, course performance, major choice, degree attainment, and wages into their mid-30s found “the first causal evidence that banning affirmative action exacerbates socioeconomic inequities.”[19] The study found “Proposition 209 instigated a dramatic change in UC admissions policy, with underrepresented group (URG) enrollment at the Berkeley and UCLA campuses immediately falling by more than 60 percent and systemwide URG enrollment falling by at least 12 percent.”[20] Also according to the window studied (after race- and gender-based affirmative action was banned but before socioeconomic preferences were introduced), the immediate ban on affirmative action reduced Black and Latino students' likelihood of graduating and attending graduate school, and resulted in a decline in wages. At the same time, the report found that the policy did not significantly impact wages of white and Asian American students. This study has since been published in the Quarterly Journal of Economics.[21]
A rebuttal to Bleemer's study by UCLA Professor of Law Richard Sander argued that Bleemer's claims are incorrect and that URM enrollment reached pre-Prop 209 levels by 2000. Sander also argued that Proposition 209 reduced negative mismatch effects, leading to an increase in the number of URM STEM graduates while the national trend was flat. Sander finally noted that due to the University withholding admissions data from outside researchers that Bleemer's research is not reproducible by outside researchers.[22]
William Kidder, a research associate at the UCLA Civil Rights Project rebuts Sander's rebuttal stating "Professor Sander’s claims about Prop 209 in his rebuttal to the Bleemer paper are not consistent with the overall body of relevant peer-reviewed scholarship. Rather, Mr. Bleemer’s findings about URM enrollment, graduation rates and earnings under Prop 209 are broadly consistent with the preponderance of peer-reviewed research studies."[23]
Prior to the passage of Proposition 209, California state government and many local governments had affirmative action programs in place for minority and women business enterprises, where the state aimed to award a certain portion of state contracts to those types of businesses.[16] As Proposition 209 barred state and local agencies from considering race and gender in public contracting decisions, these programs and businesses were negatively impacted. After the state ended its affirmative action in public contracting, few minority- or women-owned businesses were able to regain contracts according to the Equal Justice Society.[24] As of 2020, this amounted to a loss of $1 billion to $1.1 billion annually for minority- and women-owned businesses.[24] The end of affirmative action programs in contracting led to reduced awards to contracted organizations. After the passage of Proposition 209, the prices on state funded contracts fell by 5.6 percent relative to federally funded projects, for which race or gender preferences are still applied.[25]
Current law prohibits school districts in California from considering student or teacher race in funding, outreach, and hiring.[26]
The proposition is officially titled Allows Diversity as a Factor in Public Employment, Education, and Contracting Decisions. Legislative Constitutional Amendment.[27] According to California's Legislative Analyst, proposition 16 permits considering race, sex, color, ethnicity, or national origin in government decision-making policies to address diversity in the operation of public employment, education, or contracting. The proposition does not change any fiscal policies, though there are uncertain effects depending on subsequent changes in hiring processes.
The measure would repeal Section 31 of Article I of the California Constitution. The following text would be repealed:[27]
| YES on Prop. 16 means EQUAL OPPORTUNITY FOR ALL CALIFORNIANS. All of us deserve equal opportunities to thrive with fair wages, good jobs, and quality schools. Despite living in the most diverse state in the nation, white men are still overrepresented in positions of wealth and power in California. Although women, and especially women of color, are on the front lines of the COVID-19 response, they are not rewarded for their sacrifices. Women should have the same chance of success as men. Today, nearly all public contracts, and the jobs that go with them, go to large companies run by older white men. White women make 80¢ on the dollar. The wage disparity is even worse for women of color and single moms. As a result, an elite few are able to hoard wealth instead of investing it back into communities. Prop. 16 opens up contracting opportunities for women and people of color. We know that small businesses are the backbone of our economy. Yet, Main Street businesses owned by women and people of color lose over $1,100,000,000 in government contracts every year because of the current law. We need to support those small businesses, especially as we rebuild from COVID-19. Wealth will be invested back into our communities. YES on Prop. 16 helps rebuild California stronger with fair opportunities for all. YES on Prop. 16 means:
We live in the middle of an incredible historic moment. In 2020, we have seen an unprecedented number of Californians take action against systemic racism and voice their support for real change. At the same time, our shared values are under attack by the Trump administration's policies. We are seeing the rise of overt racism: white supremacists on the march, the daily demonization of Latino immigrants, Black people gunned-down in our streets, anti-Asian hate crimes on the rise, women’s rights under attack, and COVID-19 ravaging Native communities. By voting YES on Prop. 16, Californians can take action to push back against the Trump administration’s racist agenda. By voting YES on Prop. 16, Californians can take action to push back against racism and sexism and create a more just and fair state for all. Equal opportunity matters. Yes on Prop. 16. VoteYesOnProp16.org CAROL MOON GOLDBERG, President League of Women Voters of California THOMAS A. SAENZ, President Mexican American Legal Defense and Educational Fund EVA PATERSON, President Equal Justice Society | The California Legislature wants you to strike these precious words from our state Constitution: "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." Don’t do it! Vote NO. Those words—adopted by California voters in 1996 as Proposition 209—should remain firmly in place. Only by treating everyone equally can a state as brilliantly diverse as California be fair to everyone. REPEAL WOULD BE A STEP BACKWARD Discrimination of this kind is poisonous. It will divide us at a time we desperately need to unite. Politicians want to give preferential treatment to their favorites. They think they can "fix" past discrimination against racial minorities and women by discriminating against other racial minorities and men who are innocent of any wrongdoing. Punishing innocent people will only cause a never-ending cycle of resentment. The only way to stop discrimination is to stop discriminating. HELP THOSE WHO REALLY NEED IT Not every Asian American or white is advantaged. Not every Latino or black is disadvantaged. Our state has successful men and women of all races and ethnicities. Let's not perpetuate the stereotype that minorities and women can’t make it unless they get special preferences. At the same time, our state also has men and women—of all races and ethnicities—who could use a little extra break. Current law allows for "affirmative action" of this kind so long as it doesn't discriminate or give preferential treatment based on race, sex, color, ethnicity or national origin. For example, state universities can give a leg-up for students from low-income families or students who would be the first in their family to attend college. The state can help small businesses started by low-income individuals or favor low-income individuals for job opportunities. But if these words are stricken from our state Constitution, the University of California will again be free to give a wealthy lawyer's son a preference for admission over a farmworker’s daughter simply because he’s from an “under-represented” group. That’s unjust. GIVE TAXPAYERS A BREAK Prior to the passage of Proposition 209, California and many local governments maintained costly bureaucracies that required preferential treatment in public contracting based on a business owner’s race, sex or ethnicity. The lowest qualified bidder could be rejected. A careful, peer-reviewed study by a University of California economist found that CalTrans contracts governed by Proposition 209 saved 5.6% over non-209 contracts in the two-year period after it took effect. If the savings for other government contracts are anywhere near that, repealing this constitutional provision could cost taxpayers many BILLIONS of dollars. EQUAL RIGHTS ARE FUNDAMENTAL Prohibiting preferential treatment based on race, sex, color, ethnicity or national origin is a fundamental part of the American creed. It's there in our Constitution for all of us. . .now and for future generations. Don't throw it away. VOTE NO. WARD CONNERLY, President Californians for Equal Rights GAIL HERIOT, Professor of Law BETTY TOM CHU, Former California Constitution Revision Commissioner |
The Opportunity for All Coalition, also known as Yes on Prop 16, was leading the campaign in support of Proposition 16.[29] In the California State Legislature, Asm. Shirley Weber (D-79) was the lead sponsor of the constitutional amendment.[4] Chairpersons of Yes on 16 include Eva Paterson, president of the Equal Justice Society; Vincent Pan, co-executive director of Chinese for Affirmative Action; and Thomas Saenz, president of the Mexican American Legal Defense and Educational Fund.[29] A commercial released by the 'Yes on 16' campaign suggested that to oppose the initiative was to side with white supremacy.[30]
Californians for Equal Rights, also known as No on 16, is leading the campaign in opposition to Proposition 16.[31] Ward Connerly, who was chairperson of the campaign behind California Proposition 209 (1996), is president of Californians for Equal Rights.
Opponents of Proposition 16 primarily cite the divisive, discriminatory, and constitutionally questionable nature of Proposition 16, as well as the positive results Proposition 209 has yielded for underrepresented students at California's public universities since its implementation.[32] They also point to deeper, socio-economic issues that must be addressed to achieve better outcomes for underrepresented minorities (URMs), including improving public school outcomes and options for URMs in public K-12 education, inefficient public education spending, unequal access, lack of parental involvement, community segregation, and a shortage of qualified teachers.[33] [34] Under Proposition 209, California universities and government hiring may still consider economic background in the admissions process, but may not use race. Finally, Proposition 16 opponents believe that Proposition 16 is not a true affirmative action program, but is aimed at legalizing discrimination and government-sanctioned racial favoritism.[35]
The debate about affirmative action has drawn strong opinions from both supporters and opponents within the Asian American community. The debate has largely centered around affirmative action in college admissions.[54] As of 2020, Asian Americans are the only over-represented student ethnic group in "more selective" public colleges in California and make up the largest proportion of undergraduate enrollment at the University of California.[55] [54] [56]
Asian Americans have mobilized on both in support of and in opposition to Proposition 16. There are longstanding Asian American civil rights groups including Asian Americans Advancing Justice - Asian Law Caucus, Asian Americans Advancing Justice - Los Angeles, Asian Pacific American Labor Alliance, Japanese American Citizens League, Chinese for Affirmative Action, and Organization of Chinese Americans among others that support Proposition 16.[57] Many in these groups believe that affirmative action "lifts everyone up together and gives all people of color better access to education and opportunities," that affirmative action benefits Asian Americans, and that affirmative action remains necessary to address systemic racism.[58] [59]
On the other side, the opposition includes the 80-20 Educational Foundation, Asian American Coalition for Education, and the Silicon Valley Chinese Association Foundation among others. Many in these groups believe that Prop. 16 and affirmative action policies in general discriminate against Asian Americans.[60] Nearly 5,700 Asian American individuals have donated to the "No On Prop 16" campaign, representing 95% of donors to the campaign.[61]
Public opinion of affirmative action may vary depending on question framing and survey design.
| Poll source | Date(s)administered | Samplesize | Marginof error | For Proposition 16 | Against Proposition 16 | Undecided | |
|---|---|---|---|---|---|---|---|
| UC Berkeley Institute of Governmental Studies | October 16–21, 2020 | 5,352 (LV) | – | 38% | 49% | 13% | |
| David Binder Research | October 17–19, 2020 | 600 (LV) | ± 4% | 45% | 45% | 10% | |
| Public Policy Institute of California | October 9–18, 2020 | 1,185 (LV) | ± 4.3% | 37% | 50% | 13% | |
| Ipsos/Spectrum News | October 7–15, 2020 | 1,400 (A) | ± 3% | 38% | 28% | 34% | |
| SurveyUSA | September 26–28, 2020 | 588 | ± 5.4% | 40% | 26% | 34% | |
| UC Berkeley Institute of Governmental Studies | September 9–15, 2020 | 5,942 | ± 2% | 33% | 41% | 26% | |
| Public Policy Institute of California | September 4–13, 2020 | 1,168 | ± 4.3% | 31% | 47% | 22% |
| Against Proposition 16 | Undecided | ||
|---|---|---|---|
| White | 35% | 53% | 12% |
| Black | 58% | 33% | 10% |
| Asian | 39% | 50% | 11% |
| Latino | 40% | 42% | 17% |
| Native American | 22% | 74% | 4% |
| Against Proposition 16 | Undecided | |||
|---|---|---|---|---|
| White | 28% | 46% | 26% | |
| Black | 51% | 28% | 21% | |
| Asian | 42% | 33% | 25% | |
| Latino | 40% | 33% | 27% |
| Poll source | Date(s)administered | Samplesize | Marginof error | For Proposition 16 | Against Proposition 16 | Undecided | ||
|---|---|---|---|---|---|---|---|---|
| Latino Community Foundation | August 24, 2020 | 1200 Latino | ± 2.8% | 51% | 43% | 6% | ||
| Asian American Voter Survey | September 15, 2020 | 609 Asian American | Not available | 35% | 21% | 36% |
Results were certified on December 11, 2020.
| Choice | Votes | % |
|---|---|---|
| For | 7,217,064 | 42.77 |
| Against | 9,655,595 | 57.23 |
| Blank votes | 912,492 | - |
| Total | 17,785,151 | 100 |
| Registered voters/turnout | 22,047,448 | 80.67 |
| Source: elections.cdn.sos.ca.gov |