2020 California Proposition 16

Proposition 16 would have repealed 1996 California Proposition 209 which amended the California constitution and prohibits government institutions from considering race, sex, or ethnicity,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 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.[13]

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.[13] 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.[14]

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."[15] 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.[16] 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.[17] 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.[18][19]

Led by University of California Regent Ward Connerly[20] and endorsed by Governor Pete Wilson,[21] Proposition 209 appeared on the ballot in California as a constitutional amendment on November 5, 1996 and was approved by voters.[22] 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.[23]^:1

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.[24] 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.[23]^:12

The proposition is officially titled Allows Diversity as a Factor in Public Employment, Education, and Contracting Decisions. Legislative Constitutional Amendment.[13]^:26 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 would not alter other state or federal laws guaranteeing equal protection and prohibiting unlawful discrimination. The proposition does not change any fiscal policies, though there are uncertain effects depending on subsequent changes in hiring processes.

• U.S. Rep. Karen Bass (D-37): "Proposition 209, deceptively titled the California Civil Rights Initiative, passed by referendum in 1996 amidst an orchestrated campaign of dog-whistle politics attacking all attempts to level the playing field for women and people of color. Before Prop 209, those efforts at advancing equity had made real progress. But the Wall Street-backed authors of the initiative saw a threat to their economic stranglehold from an increasingly diverse and highly educated population in California; a population better situated to compete in jobs, education, government contracts and other areas of the state’s economy. In passing Prop 209, those groups limited competition in their industries and benefited their own businesses by erecting new institutional barriers burdening the ability of California’s women and people of color achieve positions of economic and business leadership."[44]
• University of California President Janet Napolitano: "It makes little sense to exclude any consideration of race in admissions when the aim of the University’s holistic process is to fully understand and evaluate each applicant through multiple dimensions. Proposition 209 has forced California public institutions to try to address racial inequality without factoring in race, even where allowed by federal law. The diversity of our university and higher education institutions across California, should — and must — represent the rich diversity of our state."[45]
• Varsha Sarveshwar, president of the University of California Student Association: "Today, colleges can consider whether you’re from the suburbs, a city or a rural area. They can consider what high school you went to. They can consider your family’s economic background. They can look at virtually everything about you – but not race. It makes no sense – and is unfair – that schools can’t consider something that is so core to our lived experience. Repealing Prop. 209 will not create quotas or caps. These are illegal under a Supreme Court decision and would remain so."[46]
• Otto Lee, former mayor of Sunnyvale, California, and founder of the Intellectual Property Law Group LLP: "With President Trump’s latest proclamations of Chinese virus, or “Kung Flu,” many Asian Americans recently have experienced racial discrimination and have been told to “Go back to China.” As a Chinese American, I recognize the urgent need for us to build bridges with all people of color, as discrimination against one is discrimination against all. We must stand tall together to call out these unacceptable behaviors and not allow ACA 5 to become a wedge that divides us."[47]
• Gaurav Khanna, assistant professor of economics, UC San Diego School of Global Policy and Strategy: "Affirmative action makes going to a good college much more attainable, and actually encourages minority groups to work harder to get into such schools. Without affirmative action, many colleges may not appear attainable, and it may discourage students from even trying."[48]
• Asm. Shirley Weber (D-79), the principal sponsor of the constitutional amendment and chairwoman of the Legislative Black Caucus, stated the following:

1. "Californians have built the fifth largest and strongest economy in the world, but too many hardworking Californians are not sharing in our state’s prosperity—particularly women, families of color, and low-wage workers. Assembly Constitutional Amendment 5 will help improve all of our daily lives by repealing Proposition 209 and eliminating discrimination in state contracts, hiring and education. [ACA 5] is about equal opportunity for all and investment in our communities."[23]^:3
2. “Since becoming law in 1996, Proposition 209 has cost women- and minority-owned businesses $1.1 billion each year...It has perpetuated a wage gap wherein women make 80 cents on every dollar made by men and has allowed discriminatory hiring and contracting processes to continue unhindered.”[49]
3. "As we look around the world, we see there is an urgent cry — an urgent cry for change. After 25 years of quantitative and qualitative data, we see that race-neutral solutions cannot fix problems steeped in race."[50]
4. "The ongoing pandemic, as well as recent tragedies of police violence, is forcing Californians to acknowledge the deep-seated inequality and far-reaching institutional failures that show that your race and gender still matter.”[51]

Similar arguments for support were summarized as follows in ACA 5's bill analysis:

California is currently the fifth-largest economy in the world and has the world's largest system of higher education. Despite this, women and people of color are not getting their fair share of opportunities to get ahead:

• A 2015 study showed that businesses owned by women and people of color lose $1.1 billion annually in government contracts.[52]
• Women in California earn only 80 cents for every dollar a man earns on average, and women of color and single moms make less than 60 cents on the dollar for the same work as their white male counterparts.[23]^:12
• Just a third of leadership and tenured faculty positions at the California Community Colleges, California State University, and the University of California are held by Black, Latino, or Asian-American scholars.
• At the UC, women make up 54 percent of enrolled students, but just one-third of the tenured faculty and less than a third of the members of the Board of Regents.[23]^:11–12

• Richard D. Kahlenberg, a senior fellow at the Century Foundation in Washington, D.C.: "Because it is much cheaper to provide racial preferences to upper middle class Latino and African American students than it is to do the hard work of recruiting economically disadvantaged and working-class Latino and African American students, I fear that many of these progressive reforms could be diluted if 209 is repealed."[53]
• Richard Sander, a UCLA law professor: (Prop 209 is) "arguably the best thing that ever happened to racial minorities because it pushed UC campuses to heavily invest in their academic preparation and helped raise their graduation rates." [54]
• Former U.S. Rep. Tom Campbell (R): "Nevertheless, if more spaces are to be made for the under-represented, they must come from the over-represented. Asian Americans are 15.3 percent of Californians, yet 39.72 percent of UC enrollees. Those numbers are why bringing this issue forward now would inevitably divide Californians racially: Latino Americans and African Americans on one side, Asian Americans on the other. The politics are inescapably racial."[55]
• Wen Fa, an attorney with the Pacific Legal Foundation: "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."[56]
• Asm. Steven S. Choi (R-68): "Is it right to give someone a job just because they are white, or black or green or yellow? Or just because they are male? Repealing Proposition 209, enacted by voters 24 years ago, is to repeal the prohibition of judgment based on race, sex, color, ethnicity and national origin. We are talking about legalizing racism and sexism."[57]
• Sen. Ling Ling Chang (R-29): "I have experienced racial discrimination so I know what that’s like. But the answer to racial discrimination is not more discrimination which is what this bill proposes. The answer is to strengthen our institutions by improving our education system so all students have access to a quality education, and give opportunities to those who are economically disadvantaged."[58]
• Michelle Steel, chairwoman of the Orange County Board of Supervisors: "The Californians who voted to pass Prop. 209 knew that discrimination, though long entrenched in our society, is against the fundamental values of American culture. Prop. 209 applied to California the essence of Martin Luther King Jr.’s dream of a nation where individuals would be judged not by the color of their skin but by the content of their character."[59]
• Former Senate Minority Leader Bob Huff (R): "California is the most diverse state in the nation and must step up to the challenges that brings. The real solution for racial equality is comprehensive public-school reform in our K-12 system, not government sanctioned discrimination to create more losers than winners as Proposition 16 will do."[60]
• Ward Connerly, chairperson of the campaign behind Proposition 209: "The fundamental nature of our nation is that we are a collection of free people who have rights given to us by our Creator. Liberty and equality are precious rights deemed essential to our pursuit of that which fulfills our objective of happiness. More than just for the pursuit of happiness, however, equality is essential to the maintenance of a civil society. This is especially so in a state now identified as a “majority minority” state. ... I ask you all to vote No on Proposition 16, which would delete that commitment to equality from the California Constitution."[61]
• Haibo Huang, co-founder of San Diego Asian Americans for Equality: "Race is a forbidden classification for good reason, because it demeans the dignity and worth of a person to be judged by ancestry instead of his or her own merit and essential qualities. Racial preference is not transformed from patently unconstitutional into a compelling state interest simply by relabeling it racial diversity. ... Judging people by their skin color is morally repugnant. Equal opportunity is referenced to individual merits, it never guarantees equal results. To the contrary, enforcing equal outcome regardless of qualification and effort bears the hallmark of communism."[62]

Public opinion of affirmative action may vary depending on question framing.

Results were certified on 11 December 2020.

• 1996 California Proposition 209
• 2003 California Proposition 54
• California Senate Constitutional Amendment No. 5

• Official Voter Information Guide
• Official Yes on Prop 16 campaign website
• Official No on Prop 16 campaign website