Calif. Rejects Affirmative Action In Education, Gov't Jobs

Law360 (November 4, 2020, 1:35 PM EST) -- California voters rejected a ballot measure that would have struck down the state constitution's ban on affirmative action programs, marking a victory for supporters of the status quo who argued the proposal could legalize harmful, discriminatory practices.

The measure, listed on the ballot as Proposition 16, was rejected by 56% of voters, with 99% of precincts reporting Wednesday morning, according to the California secretary of state.

The failure of Proposition 16 keeps intact Article I, Section 31 of the state constitution, which effectively banned the use of race- and sex-based preferences in government programs.

That ban became law in 1996 with the passage of a ballot measure known as Proposition 209, which subsequently withstood challenges that reached the California Supreme Court and the Ninth Circuit.

Opponents of Proposition 16 like Assembly Member Steven Choi, R-Irvine, said the ballot measure amounted to an attempt to "legalize discrimination."

"America has been fighting for a long time for civil rights," Choi told Law360. "I thought the civil rights movement was all about achieving equal opportunities, rather than discrimination."

However, supporters like Assembly Member Lorena Gonzalez, D-San Diego, one of the leaders of the legislative effort that put Proposition 16 on this year's ballot, said the ballot measure was aimed at addressing systemic racial and gender discrimination.

"We are not a race-blind society," Gonzalez told Law360. "No law requiring us to be [race-blind] can achieve outcomes that somehow are equitable."

One aspect of Proposition 16 that garnered much attention during the lead-up to the vote was its potential impact on admissions at public colleges and universities in California.

Gail Heriot, a professor at the University of San Diego School of Law who campaigned against Proposition 16, said nothing under Proposition 209 prevented public schools from giving "a small leg up" to low-income individuals or those whose parents didn't go to college. But the failed ballot measure wrongly conflated race and disadvantage, she said.

It would've allowed "the University of California to go back to a system where the assumption was made that anybody who is African American or Latino deserves preferential treatment," Heriot said.

Nicole Gon Ochi, a senior attorney at the nonprofit Public Advocates, which supported the ballot measure, told Law360 that repealing Proposition 209 would have opened space for race-specific programs that could have benefited students from diverse backgrounds. Under the current regime, she said, schools have to tread "a fine line" with regard to providing support to students from underrepresented communities.

Affirmative action in college admissions has been a hot-button issue in recent years.

Harvard University and the University of Texas at Austin have been hit by lawsuits claiming the practice is unfair to whites and Asians. The federal government has stepped in to back the challengers in those cases, and even went so far as to sue Yale University to force it to end its use of race as a factor in its undergraduate admissions.

Proposition 16 was also aimed at removing the legal obstacles to race- and gender-based preferences in government hiring and contracting.

Attorney Wen Fa with the nonprofit Pacific Legal Foundation, which opposed Proposition 16, told Law360 that programs that give preference in government contracting to minority-owned businesses encourage fraud and discourage fair and open competition.

"Rather than doing the work themselves, they usually just use pass-throughs to give it to a nonminority-owned business that ends up doing it at a lower price," Fa said.

On the other hand, Lisa Holder, an attorney with the nonprofit Equal Justice Society, which supported Proposition 16, said the ballot measure would have given employment and contracting practitioners an additional tool to combat discrimination by contributing to a move away from a "colorblind" legal regime.

"We are recognizing that those standards have not helped to alleviate discrimination because we keep seeing these terribly disparate outcomes on the basis of race and gender," Holder said. "Now we are moving away from that norm that requires intentional discrimination and explicit discrimination to a norm that recognizes implicit bias."

Fa told Law360 that even though Proposition 16 failed, its supporters still represent a force to be reckoned with.

"You have a movement to try to achieve some sort of racial and gender balance, and I think that's just wrong, and I think that's just really counterproductive to the notion that every individual should be able to chart his or her own path," Fa said.

Holder confirmed that Proposition 16's supporters intend to keep working toward clearing a path for affirmative action programs in the Golden State.

"The only to way to make up for generations — centuries — of inequality that gave wealthy and powerful, mostly white males a massive head start is to create equity programs that start to eat away at those discrimination gaps," Holder said.

--Editing by Orlando Lorenzo and Katherine Rautenberg.

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