Today, the United States Supreme Court, in a divided opinion, upheld as CONSTITUTIONAL a provision of the Michigan Constitution that is very similar to Proposition 209. (New York Times story on the decision) Notably, Michigan's Proposal 2 was a reaction to the Supreme Court's decision in 2003 upholding the University of Michigan Law School's use of race as a factor in admissions.
But we also have some other interesting developments in California.
First, according to data released by the University of California, Latinos has passed whites as the second largest group of admitted students this year. (OC Register story) Here's the link to the UC's Summary Fact Sheet and here's the link to Table 3, which gives the campus-by-campus and universitywide diversity break-down. Again, these are ADMISSIONS numbers for Fall 2014, not applications and not actual enrollment. I prefer looking at the Universitywide numbers because they are not duplicated numbers (more than one campus can offer a particular student admission) and they reflect the overall systemwide effort to create a diversity across the entire system.
For Asian Americans, in 2012 the percentage was 36.3%, in 2013 it was 36.0% and in 2014 it is 36.2%. No change. There was also no change in all the other groups EXCEPT whites (from 28.2% in 2012 to 28.1% in 2013 to 26.8% in 2014) and Hispanic/Latino (from 27.3% in 2012 to 27.6% in 2013 to 28.8% in 2014).
The other interesting news is that the percentage of non-resident students admitted (international and out-of-state), as a percentage of the admitted class, ROSE. UC Berkeley Chancellor Nicholas Dirks said, in a written statement, that non-resident students pay more in tuition and that additional revenue is necessary to maintain the programs at UC Berkeley. Moreover, the plan, Chancellor Dirks explained, was to increase the total percentage of non-resident students from 20 percent to 23 percent in the next three years. So, one could say, that the bigger threat to Asian American students comes not from SCA-5 (which is currently dead) but from the UC System's need to enroll non-resident students for economic reasons. That is a greater threat to California's Master Plan to educate Californians.
Tuesday, April 22, 2014
Monday, April 7, 2014
Fisher v. University of Texas at Austin: A Word from our Friends
Amicus curiae briefs - aka "friend of the court" briefs - are always an interesting read. Here are two that are significant for the SCA-5 issue:
Here's the brief filed by the University of California. And below are some excerpts that may be of interest:
Page 4:
Page 15 to 16 (discussing UC admissions standards)
Pages 23 to 24 (discussing the ELC program which was a response to Prop 209)
Page 29 sums up the results of these new tools:
Here's the brief filed by 80-20 and some other organizations opposing affirmative action.
Here's the brief filed by the University of California. And below are some excerpts that may be of interest:
Page 4:
California has adopted a number of different strategies in an attempt to reverse that decline in underrepresented minority students, including expanding its outreach program to secondary schools, incorporating a broader program and more comprehensive set of admissions criteria, adopting 'holistic' review of applicants, decreasing the weight given to standardized tests, and admitting a specified percentage of the top graduates from each high school under an 'Eligibility in the Local Context' program similar in certain respects to UT's 'Top Ten Percent' Program. To date, however, those measures have enjoyed only limited success. They have not enabled the University of California fully to reverse the precipitous decline in minority admissions and enrollment that followed the enactment of Proposition 209, nor to keep pace with the growing population of underrepresented minorities in the applicant pool of qualified high school graduates. These effects have been most severe and most difficult to reverse at the University's most highly-ranked and competitive campuses.
The University of California's experience establishes that in California, and likely elsewhere, at present the compelling government interest in student body diversity cannot be fully realized at selective institutions without taking race into account in undergraduate admissions decisions.Pages 10 to 12 (discussing campus racial climate):
UC campuses, like UT, administer a biennial survey to undergraduates in which they are asked, among other things, whether they feel students of their race/ethnicity are respected on campus. ... In many cases, students' responses to the question correlate directly with whether the representation of underrepresented minority students on campus approaches critical mass. ... In short, where critical mass is not achieved, the campus racial climate is likely to be significantly less hospitable to minorities. ... The concern about a welcoming climate for all racial and ethnic groups on campus is part of a broader commitment by UC and other public institutions to serve the full range of their citizenry, from all cultural, racial, ethnic, geographic, and socioeconomic backgrounds.[And incidents like the UCI fraternity video depicting blackface!]
Page 15 to 16 (discussing UC admissions standards)
The Master Plan for Higher education of the State of California provides that the University of California should educate freshmen from the 'top one-eight' (12.5 per cent) of all graduates of California public high schools. To identify these students, the University of California promulgates minimum eligibility requirements that both specify a floor of preparation needed to pursue study at UC and also function as an entitlement: any high school graduate who meets these requirements is guaranteed a place at UC - although not necessarily at the campus nor in the major of his or her choice. At the same time, because demand for admission exceeds enrollment capacity at most UC campuses, the campuses over the years have developed selection criteria (such as consideration of high school grade point average, test scores, and other evidence of academic promise) to choose which UC-eligible applicants they will admit. These criteria function as a second, and generally more demanding, set of requirements that applicants to most of the campuses must meet.Pages 20 to 22 (discussing the Outreach Task Force strategy as a response to Prop 209)
[Board of Regents] directed the formation of a task force on academic outreach, the goal of which was to develop proposals for new directions and increased funding to increase the eligibility rate of economically disadvantaged and other applicants. ... Consistent with Proposition 209, UC's outreach programs operate in a race-neutral fashion. To be eligible for these programs, applicants must be from low-income families or those with little or no previous experience with higher education, or attend a school that is educationally disadvantaged.
[Footnote 32] As the minority enrollment figures discussed below make clear, policies that increased the enrollment of low-income students do not serve as an effective 'proxy' for race and ethnicity.
Pages 23 to 24 (discussing the ELC program which was a response to Prop 209)
... effective for students entering the University in 2001, the Board of Regents modified its existing eligibility policy to add a 'top 4 percent' program, under which the top 4 percent of the eligible students in each California public high school were designated as Eligible in the Local Context ('ELC'). Effective for students entering UC as freshmen for fall 2012, the Board of Regents expanded the ELC program to the top 9 percent of eligible California high school graduates. ... The ELC program has been successful in increasing interest and applications from students at high schools that traditionally sent few students to the University. However, because the State of California has few if any high schools with student bodies composed entirely of minorities, it has not substantially increased the diversity of the pool of students considered eligible for UC.Pages 25 to 28 discuss the use of a "holistic review" in selecting students and pages 28 to 29 discuss the reduced emphasis on standardized test scores.
Page 29 sums up the results of these new tools:
While these and other measures have enjoyed some limited success, particularly at UC's less selective campuses, the unfortunate reality is that the University's experience continues to support the conclusion it reached a number of years ago: 'in a highly selective institution, implementing race-neutral policies leads to a substantial decline in the proportion of entering students who are African American, American Indian, and Latino.'Page 32 (after running through the numbers for African-American and Latino students):
These figures are troubling, because they call into serious question whether it is currently feasible without the careful and limited application of race-conscious measures to achieve the level of diversity of underrepresented minority students that this Court has recognized as a legitimate objective in the context of higher education.Page 33 to 34 (discussing under-representation in graduate programs):
In particular, business schools, which play an influential role in shaping tomorrow's business leaders, have very low proportions of underrepresented minorities, and UC's business schools compare poorly in that respect to similar programs nationally. Systemwide, UC enrolled fewer minority students in business (4.5 percent) than did comparable programs nationally (12.8 percent). In California, where an estimated 46.4 percent of the 2011 population is Latino/Hispanic, African American and American Indian, recent entering classes of MBA students at UC campuses have averaged only one to two percent African American and three to four percent Latino students. Indeed, during ten of the last eleven academic years, two or more of UC's six business schools enrolled zero African Americans. ... Entering law school classes in recent years have averaged only three to four percent African American, with one UC law school in 2009-2010 reporting only ten African American students in a student body of over 600, considerably below the numbers in the years immediately before Proposition 209.
Here's the brief filed by 80-20 and some other organizations opposing affirmative action.
SCA-5 Is Alive???
Just to recap: On March 17th, Assembly Speaker John Perez, at the behest of Senator Ed Hernandez (the driving force behind SCA-1), pulled the plug on SCA-5. On March 26, State Senator Leland Yee was arrested by the FBI on corruption charges. With the Democratic super majority in trouble due to two State Senators in hot water, Senator Yee was surely the nail in the proverbial coffin. As discussed in my earlier posts about the mechanics of all this, SCA-5 requires a two-thirds vote of both houses to get onto the ballot as a proposition. Without a super majority in both chambers, Democrats have no chance of bringing back SCA-5 any time soon.
So that means SCA-5 is dead right? As it turns out, SCA-5 may be dead as a bill, but it is ALIVE as an issue.
The California Latino Legislative Caucus and California Legislative Black Caucus, in a statement issued March 25th, blasted the Democratic leadership and Republicans:
We understand the desire of leadership to have further discussions about this important issue and are committed to ensuring the success of the bicameral commission on issues surrounding recruitment, admissions, and retention. However, we must not ignore the fact that the major reason this measure has been delayed is due to a malicious disinformation campaign being waged by disingenuous ultra-conservative partisans intent on denying equal opportunity for all Californians.And they started slamming fellow Democrats who had betrayed the cause.
That same day, six state legislators (Senators Ricardo Lara (Bell Gardens), Norma Torres (Pomona), and Holly Mitchell (Hollywood) and Assembly members Lorena Gonzalez (San Deigo), Anthony Rendon (Lakewood) and Jose Medina (Riverside)) withdrew their endorsement of State Senator Ted Lieu (who had joined Leland Yee and Carol Liu in asking for Senator Hernandez to slow down SCA-5) for Congress.
Today, members of the Latino and Black caucuses withheld necessary votes in a bill sponsored by State Assemblyman Al Muratsuchi that would have expanded the number of vehicles entitled to use HOV / carpool lanes.
Sen. Holly Mitchell, the Los Angeles Democrat who chairs the Legislature's black caucus, said she was not surprised to hear that so many lawmakers withheld their votes on Muratsuchi's bill. Does she expect black and Latino Democrats to continue withholding votes from colleagues they feel do not support a return to affirmative action?
"Perhaps," Mitchell said, adding that lawmakers who believe in restoring affirmative action are concerned "that there is a lack of commitment to a core Democratic party priority."With Democrats attacking each other, is it a surprise that Republicans using SCA-5 as a wedge issue to divide the Asian-American community?
[At the state Republic Convention] California Republican Party vice chairwoman Harmeet Dhillon told reporters Saturday that her party’s candidates have been seizing on disaffected Asian voters across the state.
“It is just math that affirmative action suppresses Asian-Americans and Jewish Americans,” Dhillon said. “So that is going to turn out those Asian voters who live in California because their dream is to send their kids to UC Berkeley or UCLA or one of those top schools.”(See article)
Republican candidate Peter Kuo, on his campaign website, is keeping the issue alive by telling voters that SCA-5 will return after the November election. Also, as long as Democrats keep talking about it, Republicans like Kuo get to keep on talking about it too (responding to Black & Latino causus' joint statement).
So, to recap, SCA-5 was brought to life, killed off, and brought back to life again.
Tuesday, March 18, 2014
It's Over .... For Now
According to NPR, SCA-5 is dead. According to the Assembly leadership, there aren't the votes to pass it - when you consider the fact that the Democrats hold a super majority, that means there's a break in the ranks somewhere. Senator Hernandez says he's interested in bringing it back in 2016 ... But if the Democrats lose their supermajorities in either chamber, that won't be a possibility. (NPR story)
I guess my work here is done but in the next couple of weeks, I'll put up the rest of my research in case anyone wants more info on this.
I guess my work here is done but in the next couple of weeks, I'll put up the rest of my research in case anyone wants more info on this.
Tuesday, March 4, 2014
More Number Crunching ...
I've again dived into the numbers from the UC Application, Admission & Enrollment, California Resident Freshman data. This time, I've taken a look at the Enrollment data both (1) as a percentage for each racial group for the total enrolled class and (2) as a percentage of the students for each racial group who accepted the admissions offer.
The first of these new charts shows that there is a greater percentage of Asians who Enroll than who were offered Admissions. It appears, according to the second new chart, that the reason for this is that Asians consistently accepted the offer and enrolled at a substantially greater rate than the other groups examined. I added East Indian / Pakastani, Filipino American, and Native American, to see if the other Asian groups had similarly high numbers and I wanted to see if Native Americans were having better, worse, or similar numbers to the other disadvantaged communities.
Also surprising was that starting around 2002, every group, except for the Asians, had multiple years when less than half of those who got offers actually enrolled. This represents a significant decline from the prior decade. My guess (I'm just speculating here) as to why this happened / is happening is the steady increase in tuition since 2002.
The first of these new charts shows that there is a greater percentage of Asians who Enroll than who were offered Admissions. It appears, according to the second new chart, that the reason for this is that Asians consistently accepted the offer and enrolled at a substantially greater rate than the other groups examined. I added East Indian / Pakastani, Filipino American, and Native American, to see if the other Asian groups had similarly high numbers and I wanted to see if Native Americans were having better, worse, or similar numbers to the other disadvantaged communities.
Also surprising was that starting around 2002, every group, except for the Asians, had multiple years when less than half of those who got offers actually enrolled. This represents a significant decline from the prior decade. My guess (I'm just speculating here) as to why this happened / is happening is the steady increase in tuition since 2002.
Saturday, March 1, 2014
SCA-5 Will Not Impact Asian Americans: An Analysis of UC Admissions Data From 1989 to 2013
In my "Numbers, numbers, and more numbers" post, I provided a link to the UC Admissions and Enrollment Data from 1989 to 2013. I finally had some time to take a closer look.
METHODOLOGY:
The University of California provided racial breakdowns for three areas: Applications, Admissions, and Enrollment. I decided not to look at Applications, but anybody can apply. It's just like anyone can sue, but it doesn't mean that the lawsuit has any merit. I also decided not to look at Enrollments; there are all kinds of reasons why people choose not to enroll, including financial reasons or they chose to go to a different school (yes, shockingly, a UC is not always the first choice). But if you're trying to determine if Proposition 209 affected the decision-making process of admissions officers, wouldn't you want to look at Admissions data?
Rather than look at every campus (I don't have THAT much time), I looked at the Universitywide figures. When I did, I noticed that the total Universitywide admissions number rose from 31,764 in 1989 to 62,683. So comparing the number of students in each racial group from year to year wouldn't work. Instead, I chose to look at the percentages for each racial group for each year. There were a couple of groups I didn't include at all because their numbers were on the smaller side (I'm using UC's abbreviations): Am Indian; E Ind/Pak; Filipino Am; Other. Lastly, I combined the categories of Chicano and Latino.
FINDINGS:
Here's the chart I came up with:
Although Proposition 209 passed in 1996, the law did become effective until 1998. Keeping that in mind, the two most unusual numbers from 1998 is the HUGE jump in category of "unknown" and the drop in "white." "Unknown" eventually returned to it's pre-209 levels, but it took over a decade for that to happen. As for whites, the 35.6% was an anomaly, but perhaps a sign of things to come as white admissions numbers have continued to decline year after year from 1989. The passage of Prop 209 has done nothing to stop that. African Americans have held steady. Asian Americans have had a slight uptick. But the only group that has increased year after year is Chicano/Latino, arguably at the expense of Whites.
So there's plenty of ammo that both sides can use in the Affirmative Action debate.
Bottom line: if the adoption of Proposition 209 didn't change offers of Admission to Asian Americans, it is unlikely that the repeal of Proposition of 209 via SCA-5 will have a substantial change on Admissions to Asian Americans.
And in case you want to know what the current admissions criteria are for the University of California, click here.
METHODOLOGY:
The University of California provided racial breakdowns for three areas: Applications, Admissions, and Enrollment. I decided not to look at Applications, but anybody can apply. It's just like anyone can sue, but it doesn't mean that the lawsuit has any merit. I also decided not to look at Enrollments; there are all kinds of reasons why people choose not to enroll, including financial reasons or they chose to go to a different school (yes, shockingly, a UC is not always the first choice). But if you're trying to determine if Proposition 209 affected the decision-making process of admissions officers, wouldn't you want to look at Admissions data?
Rather than look at every campus (I don't have THAT much time), I looked at the Universitywide figures. When I did, I noticed that the total Universitywide admissions number rose from 31,764 in 1989 to 62,683. So comparing the number of students in each racial group from year to year wouldn't work. Instead, I chose to look at the percentages for each racial group for each year. There were a couple of groups I didn't include at all because their numbers were on the smaller side (I'm using UC's abbreviations): Am Indian; E Ind/Pak; Filipino Am; Other. Lastly, I combined the categories of Chicano and Latino.
FINDINGS:
Here's the chart I came up with:
Although Proposition 209 passed in 1996, the law did become effective until 1998. Keeping that in mind, the two most unusual numbers from 1998 is the HUGE jump in category of "unknown" and the drop in "white." "Unknown" eventually returned to it's pre-209 levels, but it took over a decade for that to happen. As for whites, the 35.6% was an anomaly, but perhaps a sign of things to come as white admissions numbers have continued to decline year after year from 1989. The passage of Prop 209 has done nothing to stop that. African Americans have held steady. Asian Americans have had a slight uptick. But the only group that has increased year after year is Chicano/Latino, arguably at the expense of Whites.
So there's plenty of ammo that both sides can use in the Affirmative Action debate.
Bottom line: if the adoption of Proposition 209 didn't change offers of Admission to Asian Americans, it is unlikely that the repeal of Proposition of 209 via SCA-5 will have a substantial change on Admissions to Asian Americans.
And in case you want to know what the current admissions criteria are for the University of California, click here.
I've Got Beef with 80-20's "Powerful Fax"
80-20 posted a fax that was sent by Dr. Huang to members of the State Assembly. The tout it as a "Powerful Fax" when in fact, it's just a cheap shot.
Here's the text of the fax.
As I've discussed in my post spotlighting 80-20, 80-20 does have the resources to mobilize against individual Assembly members, so Dr. Haibo Huang, who serves on the Board of Directors, is not making an empty threat.
But here's why I take issue with Dr. Huang's letter and why it's anything but a "Powerful Fax" - when your organization files amicus briefs in the Supreme Court and you yourself are conducting investigations "for 80-20 regarding the impact of race-conscious college admissions on Asian American applicants" (see 80-20's bio of Dr. Huang), you don't get a pass for making misleading and inflammatory arguments.
If 80-20 claims that it stands for Asian Americans and wants to be taken seriously, then 80-20 has a responsibility to make respectable arguments.
Let's be clear: SCA-5 is a measure designed to insert affirmative action back into higher education. Dr. Huang knows exactly what that entails. But rather than even using the term "race-conscious," Dr. Huang knowingly and deliberately chooses to compare SCA-5 to the 1882 Chinese Exclusion Act and "quota-like ceiling." The Chinese Exclusion Act was an explicit, race-specific ban on Chinese immigrants which is clearly illegal and the United States Supreme Court has consistently held that the use of quotas in higher education are not legal. 80-20 and Dr. Huang also know that the issue is not "proportional representation" or college enrollment "reflecting the population."
Let's have a debate about whether affirmative action has a place in California's public universities without having to resort to invoking the specter of Communism. I think the Asian American community deserves that much.
Here's the text of the fax.
"Dear AsAm Legislators in the California Assembly,Please vote NO to SCA5 in the Assembly.The senate passing of SCA5 with the support of all three AsAm senators
had sent shock waves through the AsAm community across the nation,
turning ordinary citizens into an army of political activists. . . .Do NOT underestimate the resolve of ordinary people. The day of
reckoning will come this November. As a California resident, I will join in
hand with millions across the nation, and with the AsAm voters in your
districts, to make sure the AsAm politicians are accountable to their
constituents. The days, when AsAm politicians can take the money and
the votes from their community, and then do whatever that suit their
personal ambitions, are over. We will see to it that such politicians be
defeated in the next election cycle.If the Democratic Party leadership doesn't bent on pushing forward SCA5,
they will lose their Super Majority in the California legislature. The
recent mayoral election in the City of San Diego will serve as a warning: a
Republican candidate prevailed in an overwhelmingly Democrat city.SCA5 is a "Yellow Peril Act", a 21st century version of the "Chinese
Exclusion Act of 1882", aimed specifically to impose a quota-like ceiling on
the AsAm students. . . . Therefore, there can be no illusion, no matter
how SCA5 is sugar-coated, that it is a bill aimed squarely to limit the AsAm
enrollment through a reverse "racial preference" treatment, under an
argument that "the college enrollment should reflect the population".
Fortunately, such a "proportional representation" argument has been
consistently rejected by the US Supreme Court in all precedent cases to be
in violation of the "Equal Protection Clause" of the 14th Amendment of the
United States Constitution. . . . .SCA5 cannot hide under the disguise of "equal opportunity". In fact it is
the antithesis of "equal opportunity" because it demands "equal outcomes"
despite of "unequal qualifications and efforts". It is Communism in
essence because all resources are to be divided equally, depriving the
citizenry of any incentive to excel, dragging down the US competitiveness
in the long run. . . . . Rewarding or penalize an individual based on
his/her skin color is morally repugnant. . . . With your help, we shall
overcome.Thank you for your attention.Dr. Haibo Huang
A deeply concerned California resident.
As I've discussed in my post spotlighting 80-20, 80-20 does have the resources to mobilize against individual Assembly members, so Dr. Haibo Huang, who serves on the Board of Directors, is not making an empty threat.
But here's why I take issue with Dr. Huang's letter and why it's anything but a "Powerful Fax" - when your organization files amicus briefs in the Supreme Court and you yourself are conducting investigations "for 80-20 regarding the impact of race-conscious college admissions on Asian American applicants" (see 80-20's bio of Dr. Huang), you don't get a pass for making misleading and inflammatory arguments.
If 80-20 claims that it stands for Asian Americans and wants to be taken seriously, then 80-20 has a responsibility to make respectable arguments.
Let's be clear: SCA-5 is a measure designed to insert affirmative action back into higher education. Dr. Huang knows exactly what that entails. But rather than even using the term "race-conscious," Dr. Huang knowingly and deliberately chooses to compare SCA-5 to the 1882 Chinese Exclusion Act and "quota-like ceiling." The Chinese Exclusion Act was an explicit, race-specific ban on Chinese immigrants which is clearly illegal and the United States Supreme Court has consistently held that the use of quotas in higher education are not legal. 80-20 and Dr. Huang also know that the issue is not "proportional representation" or college enrollment "reflecting the population."
Let's have a debate about whether affirmative action has a place in California's public universities without having to resort to invoking the specter of Communism. I think the Asian American community deserves that much.
80-20 PAC in the Spotlight
On Thursday, February 27th, the 80-20 National Asian American PAC posted a blog entry entitled "SCA First Victory & Empowerment." In it, 80-20 summed up the accomplishments of its grassroots lobbying effort to stop SCA-5.
I don't know if 80-20 is who the ball rolling on the No on SCA-5 campaign, but given that the emails I've seen started a day or two after 80-20 posted "Call to Action: Stop SCA 5" on February 14, 2014, it's clear they were involved early on 80-20. Also, given 80-20's self-described reach (on its "What Makes 80-20 Effective" page, 80-20 touts 700,000 supporters) and the positions it's taken against affirmative action in higher education (80-20 filed an Amicus Brief siding with Fisher in Fisher v. University of Texas at Austin, one of the Supreme Court cases I discussed in "Psssst, Is This Constitutional?"), they have the resources and policy motivations to mobilize such an effort.
For these reasons, I decided to take a closer look at 80-20.
Their first claim is that "Assemblyman Ed Chau announced that he will NOT vote for SCA 5, as it is currently worded. So the dam has been broken. Many more AsAm Assemblypersons are expected to follow suite and defeat SCA 5. It only takes one more such announcement to defeat SCA 5 in the CA's Assembly"
I checked out website of Assemblyman Chau. If Assemblyman Chau had taken this position, I'd expect to find some mention of this on his website. But there's no mention anywhere of SCA-5. Additionally, 80-20 writes "Assemblyman Chau was the only one of the AsAm Assembly person to return S.B. Woo's phone call on the same day." Is it possible that the "announcement" referenced was merely the conversation Assemblyman Chau had with S.B. Woo, the President of the 80-20 Educational Foundation who is from Delaware?
Had Assemblyman Chau taken this position, wouldn't there be something akin to the public statement issued by the Chinese-American State Senators who voted in favor of SCA-5? The following appears on State Senator Ted Lieu's website (Senators Lieu, Yee & Liu Ask Hernandez To Hold SCA 5"): "As lifelong advocates for the Chinese American and other API communities, we would never support a policy that we believed would negatively impact our children. Prior to this vote, we heard no opposition to this bill. However, in the past few weeks, we have heard from thousands of people throughout California concerned about SCA 5. As a result, we have asked Sen. Hernandez to hold SCA 5 until he has had an opportunity to meet with affected communities and attempt to build consensus." I'm assuming that this is what 80-20 is referring to in claiming "It has been reliably leaked to 80-20 that the CA Senate will announce "NOT to proceed" with SCA 5 until more hearings on this bill would be held. Hopefully, our three Chinese Am senators, upon learning more about how SCA 5 will hurt the AsAm college applicants, will vote no afterwards."
I am admittedly not familiar with the intricate details of California legislative procedure. But, given that SCA-5 has been passed out of the State Senate and is before the State Assembly, my guess is that the State Senate would not be revisiting the bill again unless the State Assembly amends the bill. So I don't see any reason why the Senate would be stopping anything and Senators Lieu, Yee, and Liu wouldn't have any reason to be voting again.
However, in parsing the public statement by the 3 Senators, the language "until [Sen. Hernandez] has had an opportunity to meet with affected communities and attempt to build consensus," I'm inclined to believe that the supporters of SCA-5 will be responding to the concerns being raised and opening a dialogue about SCA-5 and affirmative action.
The bottom line, 80-20's celebration may be a bit premature. Round 2 is about to start and I'm guessing that the proponents of SCA-5 are going to be hitting back.
Sens. Lieu, Yee and Liu ask Hernandez to hold SCA 5
February 27, 2014
SACRAMENTO РSens. Ted Lieu, D-Redondo Beach; Leland Yee, D-San Francisco/San Mateo; and Carol Liu, D- La Ca̱ada/Flintridge) have called upon Sen. Ed Hernandez, D-West Covina, to hold SCA 5 to provide more time to discuss the potential impacts the bill will have on the Chinese, Asian Pacific Islander and other affected communities. Yee, Lieu and Liu released the following joint statement:
“As lifelong advocates for the Chinese American and other API communities, we would never support a policy that we believed would negatively impact our children. Prior to this vote, we heard no opposition to this bill. However, in the past few weeks, we have heard from thousands of people throughout California concerned about SCA 5. As a result, we have asked Sen. Hernandez to hold SCA 5 until he has an opportunity to meet with affected communities and attempt to build a consensus.”
SCA 5 is authored by Hernandez. If passed, the bill would place an initiative on the November Ballot that would remove all references to public education from Proposition 209, which amended the state constitution to prohibit state government institutions from considering race, sex or ethnicity in the areas of public employment, public contracting or public education.
Sens. Ted Lieu,
D-Redondo Beach; Leland Yee, D-San Francisco/San Mateo; and Carol Liu,
D- La Cañada/Flintridge) have called upon Sen. Ed Hernandez, D-West
Covina, to hold SCA 5 to provide more time to discuss the potential
impacts the bill will have on the Chinese, Asian Pacific Islander and
other affected communities. Yee, Lieu and Liu released the following
joint statement:
“As lifelong advocates for the Chinese American and other API communities, we would never support a policy that we believed would negatively impact our children. Prior to this vote, we heard no opposition to this bill. However, in the past few weeks, we have heard from thousands of people throughout California concerned about SCA 5. As a result, we have asked Sen. Hernandez to hold SCA 5 until he has an opportunity to meet with affected communities and attempt to build a consensus.”
SCA 5 is authored by Hernandez. If passed, the bill would place an initiative on the November Ballot that would remove all references to public education from Proposition 209, which amended the state constitution to prohibit state government institutions from considering race, sex or ethnicity in the areas of public employment, public contracting or public education.
- See more at: http://sd28.senate.ca.gov/news/2014-02-27-sens-lieu-yee-and-liu-ask-hernandez-hold-sca-5#sthash.GXSAUtKv.dpuf
“As lifelong advocates for the Chinese American and other API communities, we would never support a policy that we believed would negatively impact our children. Prior to this vote, we heard no opposition to this bill. However, in the past few weeks, we have heard from thousands of people throughout California concerned about SCA 5. As a result, we have asked Sen. Hernandez to hold SCA 5 until he has an opportunity to meet with affected communities and attempt to build a consensus.”
SCA 5 is authored by Hernandez. If passed, the bill would place an initiative on the November Ballot that would remove all references to public education from Proposition 209, which amended the state constitution to prohibit state government institutions from considering race, sex or ethnicity in the areas of public employment, public contracting or public education.
- See more at: http://sd28.senate.ca.gov/news/2014-02-27-sens-lieu-yee-and-liu-ask-hernandez-hold-sca-5#sthash.GXSAUtKv.dpuf
Sens. Lieu, Yee and Liu ask Hernandez to hold SCA 5
February 27, 2014
SACRAMENTO РSens. Ted Lieu, D-Redondo Beach; Leland Yee, D-San Francisco/San Mateo; and Carol Liu, D- La Ca̱ada/Flintridge) have called upon Sen. Ed Hernandez, D-West Covina, to hold SCA 5 to provide more time to discuss the potential impacts the bill will have on the Chinese, Asian Pacific Islander and other affected communities. Yee, Lieu and Liu released the following joint statement:
“As lifelong advocates for the Chinese American and other API communities, we would never support a policy that we believed would negatively impact our children. Prior to this vote, we heard no opposition to this bill. However, in the past few weeks, we have heard from thousands of people throughout California concerned about SCA 5. As a result, we have asked Sen. Hernandez to hold SCA 5 until he has an opportunity to meet with affected communities and attempt to build a consensus.”
SCA 5 is authored by Hernandez. If passed, the bill would place an initiative on the November Ballot that would remove all references to public education from Proposition 209, which amended the state constitution to prohibit state government institutions from considering race, sex or ethnicity in the areas of public employment, public contracting or public education.
Sens. Lieu, Yee and Liu ask Hernandez to hold SCA 5
- See more at: http://sd28.senate.ca.gov/news/2014-02-27-sens-lieu-yee-and-liu-ask-hernandez-hold-sca-5#sthash.GXSAUtKv.dpufI'mMore time needed to study impacts, reach out to affected communitiesFebruary 27, 2014
SACRAMENTO РSens. Ted Lieu, D-Redondo Beach; Leland Yee, D-San Francisco/San Mateo; and Carol Liu, D- La Ca̱ada/Flintridge) have called upon Sen. Ed Hernandez, D-West Covina, to hold SCA 5 to provide more time to discuss the potential impacts the bill will have on the Chinese, Asian Pacific Islander and other affected communities. Yee, Lieu and Liu released the following joint statement:
“As lifelong advocates for the Chinese American and other API communities, we would never support a policy that we believed would negatively impact our children. Prior to this vote, we heard no opposition to this bill. However, in the past few weeks, we have heard from thousands of people throughout California concerned about SCA 5. As a result, we have asked Sen. Hernandez to hold SCA 5 until he has an opportunity to meet with affected communities and attempt to build a consensus.”
SCA 5 is authored by Hernandez. If passed, the bill would place an initiative on the November Ballot that would remove all references to public education from Proposition 209, which amended the state constitution to prohibit state government institutions from considering race, sex or ethnicity in the areas of public employment, public contracting or public education.
Friday, February 28, 2014
Numbers, numbers, and more numbers
Here's a link to admissions data for Freshman admits into the UC system between 1989 and 2013: http://www.ucop.edu/news/factsheets/2013/flow-frosh-ca-13.pdf
I'll post later about what conclusions, if any, can be drawn from this data.
I'll post later about what conclusions, if any, can be drawn from this data.
Pete Wilson's California Is Not Jerry Brown's California
Back in 1994, I was an undergraduate at UC Berkeley studying political science (I was a law student at UC Hastings in 1996). It was two years after the President Bill Clinton had defeated then President George Bush in his re-election bid, returning the first Democrat to the White House since President Jimmy Carter. In the fall of 2004, the Republicans, led by Representative Newt Gingrich, seized control of the House of Representatives, which had been dominated by the Democrats for decades. Also that fall, Governor Pete Wilson, a Republican in a Democratic leaning state, successfully campaigned for re-election as Governor of California.
Governor Pete Wilson's political success thrust him into the national spotlight and led to his failed - and very brief - bid for the White House in 2006. But the strategies that had been employed by Governor Wilson and the Republicans in 1994 were redeployed in the form of Proposition 209.
Because of my interest in political science at the time, I had paid close attention to what was happening in politics on the state and federal level. Twenty years later, my memory of the events during those years are not as good as they used to; but I did find the following passage an accurate summary of the political climate during that time (The Initiative to Party: Partisanship and Ballot Initiatives in California):
Governor Pete Wilson's political success thrust him into the national spotlight and led to his failed - and very brief - bid for the White House in 2006. But the strategies that had been employed by Governor Wilson and the Republicans in 1994 were redeployed in the form of Proposition 209.
Because of my interest in political science at the time, I had paid close attention to what was happening in politics on the state and federal level. Twenty years later, my memory of the events during those years are not as good as they used to; but I did find the following passage an accurate summary of the political climate during that time (The Initiative to Party: Partisanship and Ballot Initiatives in California):
"Going beyond the endorsements by prominent party members, the two major party organizations in California often take their own public stances on ballot measures. Parties endorse initiatives in an effort to stimulate partisan voter anxiety or excitement about the measures, which they hope will translate into increased across-the-board support for the party. According to one California GOP official, ‘get-out-the-vote’ (‘GOTV’) was one of the main reasons why the party supported Prop. 187, as it was very ‘popular’ and Governor Wilson thought it was a ‘good’ initiative that would ‘help him and the party’ (California GOP, 1998). In 1998, the state Republican Party took a formal position on all eight initiatives on the general election ballot.The California Democratic Party also supported or opposed all of the measures, except for Prop. 5, the Indian gaming measure (California Democratic Party, 1998)." (On page 742)
"Political parties may also promote ballot initiatives if they appear to split the electoral base of support of the opposing party. In California, the GOP attempted to do this in 1996 when it pushed for the passage of Prop. 209, the California Civil Rights Initiative. The Republican Party provided essential funding to the proponents of the measure in an effort to split Democratic support for President Bill Clinton. Disavowing his long-standing support for affirmative action, Governor Wilson and the California GOP helped save the floundering campaign to end affirmative action with their financial support. Wilson, in a teleconference call with Newt Gingrich, claimed that Prop. 209 was ‘a partisan issue . . . that works strongly to our advantage [and] has every bit the potential to make a critical difference’ to defeat Clinton (Schrag, 1998: 226). At Wilson’s behest, the California Republican Party contributed $997,034 to the Yes on Prop. 209 campaign, with the Senate Republican Majority Committee contributing an additional $90,000 (California Secretary of State, 1996). At the national level, the RNC made ‘independent expenditures’ to broadcast television ads promoting Prop. 209 (Chavez, 1998: 252)." (On pages 742-743)It was clear at the time that Proposition 209 was not landmark civil rights legislation, but a wedge issue used by Republicans as part of a larger electoral strategy.
Did "Say NO to SCA5" Get It Right?
"Say NO to SCA5" is a website that, well, encourages people to Say No to SCA5. But is what they are writing correct or complete? (http://www.saynosca5.com/ )
Here's what appears on their website under the header "About SCA-5":
"To understand SCA 5, we have to remember what Prop. 209 is."
I absolutely agree - we do have to remember what Prop 209 is. Prior to Proposition 209, the state of California was permitted to utilize affirmative action programs to remedy and redress ongoing discrimination against women and minorities. The passage of Proposition 209 ended affirmative action in California. Not surprisingly, minorities overwhelmingly opposed Proposition 209 (this is from polling data compiled by The Los Angeles Times as posted by "The American Civil Rights Institute", an organization that favors Prop 209 (http://www.acri.org/209votedemographics.html ):
% of All Voters Voter Type Yes No
74 % White 63% 37%
7 % Black 26% 74%
10% Latino 24% 76%
5% Asian 39% 61%
We should also remember that Proposition 209 was introduced a mere two years after the passage of Proposition 187, which was passed by voters two years earlier in 1994. Proposition 187, entitled "Save Our State", was an initiative to establish a state-run citizenship screening service and to prohibit illegal aliens from using public education, health care, and other social services. Opponents of Proposition 187 decried it as an attack on immigrants, primarily those of Hispanic and Asian descent. This was not the political climate when landmark civil rights legislation equivalent to the Civil Rights Act of 1964 was being championed in California (and yes, opponents of SCA-5 are trying to rewrite history to suggest that Proposition 209 was civil rights legislation that even Martin Luther King would be proud of - http://no2sca5.org/).
"In November 1996, Proposition 209 (also known as the California Civil Rights Initiative) amended the state constitution to prohibit state 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."
I agree that is the language of Proposition 209 and I agree that that was the title ("California Civil Rights Initiative") that was given to it.
"In the 18 years that Prop 209 has been in effect, California has become the most diversified state in the US."
I agree with this too.
"Also, we fully support comprehensive measures having since been introduced to help students from disadvantaged families obtain higher education."
When you say "we", who are you? And what "comprehensive measures" are you referring to?
"Now SCA 5 seeks to REMOVE any mentioning of 'public education' in Prop. 209. This will unfairly roll back the clock to discriminate a student simply based on her/his race. If it succeeds, what will be next in its supporters’ minds to be removed between other two areas (public employment and public contracting) in Prop. 209?"
SCA-5 does remove the words "public education" from Proposition 209. But the contention that it will "unfairly roll back the clock" depends on your point of view - are you looking at it from a post-Prop 209 world or a pre-Prop 209 world? If you preferred a pre-Prop 209 world, then you would not consider it an unfair rolling back of the clock, but rather a return to the future. And to conclude you can "discriminate against a student simply based on her/his race" is simply not correct - please review the post "Psssst, is this Constitutional?" Although, not discussed in the "Psssst, is this Constitutional" discussion, public employment and public contracting have been given a very different treatment by the United States Supreme Court, which is far beyond the purview of this blog to discuss (needless to say, that part is not going to be changed).
"The 14th Amendment of the US Constitution clearly states that no state shall deny to any person within its jurisdiction the equal protection of its laws. The SCA 5 is racist and in violation of the US Constitution."
That's what the 14th Amendment says. However, what's equally important is understanding what that means legally. As discussed in my post "Psssst, is this Constitutional?", SCA-5 does not violate the US Constitution.
Is SCA-5 racist? Anyone can call anyone else racist. Name calling or labeling isn't an argument.
Here's what appears on their website under the header "About SCA-5":
"To understand SCA 5, we have to remember what Prop. 209 is. In November 1996, Proposition 209 (also known as the California Civil Rights Initiative) amended the state constitution to prohibit state 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.' In the 18 years that Prop 209 has been in effect, California has become the most diversified state in the US. Also, we fully support comprehensive measures having since been introduced to help students from disadvantaged families obtain higher education.Let's start with the first paragraph.
Now SCA 5 seeks to REMOVE any mentioning of 'public education' in Prop. 209. This will unfairly roll back the clock to discriminate a student simply based on her/his race. If it succeeds, what will be next in its supporters’ minds to be removed between other two areas (public employment and public contracting) in Prop. 209?
The 14th Amendment of the US Constitution clearly states that no state shall deny to any person within its jurisdiction the equal protection of its laws. The SCA 5 is racist and in violation of the US Constitution."
"To understand SCA 5, we have to remember what Prop. 209 is."
I absolutely agree - we do have to remember what Prop 209 is. Prior to Proposition 209, the state of California was permitted to utilize affirmative action programs to remedy and redress ongoing discrimination against women and minorities. The passage of Proposition 209 ended affirmative action in California. Not surprisingly, minorities overwhelmingly opposed Proposition 209 (this is from polling data compiled by The Los Angeles Times as posted by "The American Civil Rights Institute", an organization that favors Prop 209 (http://www.acri.org/209votedemographics.html ):
% of All Voters Voter Type Yes No
74 % White 63% 37%
7 % Black 26% 74%
10% Latino 24% 76%
5% Asian 39% 61%
We should also remember that Proposition 209 was introduced a mere two years after the passage of Proposition 187, which was passed by voters two years earlier in 1994. Proposition 187, entitled "Save Our State", was an initiative to establish a state-run citizenship screening service and to prohibit illegal aliens from using public education, health care, and other social services. Opponents of Proposition 187 decried it as an attack on immigrants, primarily those of Hispanic and Asian descent. This was not the political climate when landmark civil rights legislation equivalent to the Civil Rights Act of 1964 was being championed in California (and yes, opponents of SCA-5 are trying to rewrite history to suggest that Proposition 209 was civil rights legislation that even Martin Luther King would be proud of - http://no2sca5.org/).
"In November 1996, Proposition 209 (also known as the California Civil Rights Initiative) amended the state constitution to prohibit state 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."
I agree that is the language of Proposition 209 and I agree that that was the title ("California Civil Rights Initiative") that was given to it.
"In the 18 years that Prop 209 has been in effect, California has become the most diversified state in the US."
I agree with this too.
"Also, we fully support comprehensive measures having since been introduced to help students from disadvantaged families obtain higher education."
When you say "we", who are you? And what "comprehensive measures" are you referring to?
"Now SCA 5 seeks to REMOVE any mentioning of 'public education' in Prop. 209. This will unfairly roll back the clock to discriminate a student simply based on her/his race. If it succeeds, what will be next in its supporters’ minds to be removed between other two areas (public employment and public contracting) in Prop. 209?"
SCA-5 does remove the words "public education" from Proposition 209. But the contention that it will "unfairly roll back the clock" depends on your point of view - are you looking at it from a post-Prop 209 world or a pre-Prop 209 world? If you preferred a pre-Prop 209 world, then you would not consider it an unfair rolling back of the clock, but rather a return to the future. And to conclude you can "discriminate against a student simply based on her/his race" is simply not correct - please review the post "Psssst, is this Constitutional?" Although, not discussed in the "Psssst, is this Constitutional" discussion, public employment and public contracting have been given a very different treatment by the United States Supreme Court, which is far beyond the purview of this blog to discuss (needless to say, that part is not going to be changed).
"The 14th Amendment of the US Constitution clearly states that no state shall deny to any person within its jurisdiction the equal protection of its laws. The SCA 5 is racist and in violation of the US Constitution."
That's what the 14th Amendment says. However, what's equally important is understanding what that means legally. As discussed in my post "Psssst, is this Constitutional?", SCA-5 does not violate the US Constitution.
Is SCA-5 racist? Anyone can call anyone else racist. Name calling or labeling isn't an argument.
Thursday, February 27, 2014
Psssst, is this Constitutional?
Over the years, the United States Supreme Court has had a lot to say about what can and what cannot be considered by college admissions. I am NOT a constitutional scholar or professor, but I am a lawyer. Basically, that means I can claim to be an expert while simultaneously not be an expert.
What follows is an examination of four key decisions by the United States Supreme Court discussing the permissible and impermissible uses of "race and ethnicity" in university admissions policy. In 1978, the Supreme Court hinted that "diversity" was a permissible goal, but using racial quotas was not a constitutional way to achieve diversity. Twenty-five years later, in 2003, the Supreme Court again said "diversity" is a permissible goal in admissions. However, in two different decisions issued on the same date, the Supreme Court found that the University of Michigan Law School's policy which considered a number of factors, in addition to race, was constitutional but found that the University of Michigan's undergraduate admissions policy which awarded a substantial number of points to minority students was not constitutional. Ten years later, in 2013, the Supreme Court again said "diversity" can be a goal in admissions policies, but that the lower court needed to take a second look at the University of Texas at Austin's undergraduate admissions policy to make sure it achieved that goal lawfully.
Regents of the University of California v. Bakke (1978) 438 U.S. 265 (http://supreme.justia.com/cases/federal/us/438/265/case.html):
In 1973, the UC Davis medical school created a special admissions program to increase the number of "disadvantaged" students in the medical school. This program was separate from its regular admissions program. Although "disadvantaged" seemed very broad, the school in implementing the special admissions program only considered minorities. Moreover, the faculty explicitly prescribed a set number of special admits each year (hence why this became a legal decision about quotas). Allan Bakke, a white student, applied to the medical school and was denied admission in both 1973 and 1974. Bakke sued, claiming he was denied equal protection under the law, because less-qualified non-white students were admitted through the special admissions program. The United States Supreme Court, in a fractured opinion, agreed with Bakke and found that UC Davis' special admissions program was unconstitutional. Justice Powell, in the plurality opinion (that basically means the opinion with the most votes even though not everyone agreed with everything said), wrote that "the attainment of a diverse student body" is constitutional. (438 U.S. at p. 311) But that, when the Supreme Court examined the special admissions program using the most rigorous standard - what is referred to legally as "strict scrutiny" - the special admissions program did not pass. Justice Powell summed it up this way:
Grutter v. Bollinger (2003) 539 U.S. 306 (https://supreme.justia.com/cases/federal/us/539/306/case.html ):
The University of Michigan Law School, which was one of the top law schools in the country, had a written admissions policy that said it wanted to achieve a diverse student body that recognized "many possible bases for diversity admissions." The policy did point out that the law school had a longstanding commitment to "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." (539 U.S. at p. 316.) Yet the policy emphasized that diversity was not defined solely by race or ethnicity. (Id.) Barbara Grutter, a white applicant, sued the dean of the law school (Lee Bollinger) claiming racial discrimination.
In her majority opinion, Justice Sandra Day O'Connor pointed out that since Bakke, which had been decided 25 years earlier, "Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views on permissible race conscious policies" (539 U.S. at p. 323.) Then Justice O'Connor explained that would continue to back Justice Powell's reasoning - "today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions." (539 U.S. at p. 325.) Justice O'Connor then examined the law school's admissions policies and practices and concluded it was not an illegal quota system (like Bakke) and that the law school did, in practice, give "substantial weight to diversity factors besides race." (539 U.S. at pp. 333-338.)
Justice O'Connor reiterated that educational institutions are given specialized treatment for good reason: "We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. ... In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: 'The freedom of a university to make its own judgments as to education includes the selection of its student body.' From this premise, Justice Powell reasoned that by claiming 'the right to select those students who will contribute the most to the robust exchange of ideas,' a university 'seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.'" (539 U.S. at p.329 (internal citations omitted).)
Justice O'Connor also pointed out that diversity is important in other aspects of society: "These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in to day's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." (539 U.S. at p. 330.)
Gratz v. Bollinger (2003) 539 U.S. 244 (http://supreme.justia.com/cases/federal/us/539/244/case.html ):
Two white applicants sued the University of Michigan when their applications to admissions to the undergraduate school were rejected. The Supreme Court, while again noting that diversity was permissible, said that the University of Michigan's admissions policy was unconstitutional in how it sought to achieve that diversity. Specifically, "We find that the University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program." (539 U.S. at 270.)
Fisher v. University of Texas at Austin (2013) 570 U.S. __ (http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf ):
In 2004, after the Grutter decision, the University of Texas at Austin changed its admissions policy so that it explicitly mentioned race as a factor to consider in the overall assessment of a candidate. Fisher, who was white, sued when she was denied admission. The Supreme Court summarized its previous decisions that schools can use race as a factor in admissions. However, the Supreme Court found that the appellate court had not done its job correctly when it was examining the university's actual program. So the Supreme Court sent the case back to the appellate court to do over.
What follows is an examination of four key decisions by the United States Supreme Court discussing the permissible and impermissible uses of "race and ethnicity" in university admissions policy. In 1978, the Supreme Court hinted that "diversity" was a permissible goal, but using racial quotas was not a constitutional way to achieve diversity. Twenty-five years later, in 2003, the Supreme Court again said "diversity" is a permissible goal in admissions. However, in two different decisions issued on the same date, the Supreme Court found that the University of Michigan Law School's policy which considered a number of factors, in addition to race, was constitutional but found that the University of Michigan's undergraduate admissions policy which awarded a substantial number of points to minority students was not constitutional. Ten years later, in 2013, the Supreme Court again said "diversity" can be a goal in admissions policies, but that the lower court needed to take a second look at the University of Texas at Austin's undergraduate admissions policy to make sure it achieved that goal lawfully.
Regents of the University of California v. Bakke (1978) 438 U.S. 265 (http://supreme.justia.com/cases/federal/us/438/265/case.html):
In 1973, the UC Davis medical school created a special admissions program to increase the number of "disadvantaged" students in the medical school. This program was separate from its regular admissions program. Although "disadvantaged" seemed very broad, the school in implementing the special admissions program only considered minorities. Moreover, the faculty explicitly prescribed a set number of special admits each year (hence why this became a legal decision about quotas). Allan Bakke, a white student, applied to the medical school and was denied admission in both 1973 and 1974. Bakke sued, claiming he was denied equal protection under the law, because less-qualified non-white students were admitted through the special admissions program. The United States Supreme Court, in a fractured opinion, agreed with Bakke and found that UC Davis' special admissions program was unconstitutional. Justice Powell, in the plurality opinion (that basically means the opinion with the most votes even though not everyone agreed with everything said), wrote that "the attainment of a diverse student body" is constitutional. (438 U.S. at p. 311) But that, when the Supreme Court examined the special admissions program using the most rigorous standard - what is referred to legally as "strict scrutiny" - the special admissions program did not pass. Justice Powell summed it up this way:
"It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner's argument that this is the only effective means of serving the interest of diversity is seriously flawed. In a most fundamental sense, the argument misconceives the nature of the state interest that would justify consideration of race or ethnic background. It is not an interest in simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students. The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics, of which racial or ethnic origin is but a single, though important, element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder, rather than further, attainment of genuine diversity." (438 U.S. at p. 315.)
Grutter v. Bollinger (2003) 539 U.S. 306 (https://supreme.justia.com/cases/federal/us/539/306/case.html ):
The University of Michigan Law School, which was one of the top law schools in the country, had a written admissions policy that said it wanted to achieve a diverse student body that recognized "many possible bases for diversity admissions." The policy did point out that the law school had a longstanding commitment to "racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers." (539 U.S. at p. 316.) Yet the policy emphasized that diversity was not defined solely by race or ethnicity. (Id.) Barbara Grutter, a white applicant, sued the dean of the law school (Lee Bollinger) claiming racial discrimination.
In her majority opinion, Justice Sandra Day O'Connor pointed out that since Bakke, which had been decided 25 years earlier, "Public and private universities across the Nation have modeled their own admissions programs on Justice Powell's views on permissible race conscious policies" (539 U.S. at p. 323.) Then Justice O'Connor explained that would continue to back Justice Powell's reasoning - "today we endorse Justice Powell's view that student body diversity is a compelling state interest that can justify the use of race in university admissions." (539 U.S. at p. 325.) Justice O'Connor then examined the law school's admissions policies and practices and concluded it was not an illegal quota system (like Bakke) and that the law school did, in practice, give "substantial weight to diversity factors besides race." (539 U.S. at pp. 333-338.)
Justice O'Connor reiterated that educational institutions are given specialized treatment for good reason: "We have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition. ... In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: 'The freedom of a university to make its own judgments as to education includes the selection of its student body.' From this premise, Justice Powell reasoned that by claiming 'the right to select those students who will contribute the most to the robust exchange of ideas,' a university 'seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission.'" (539 U.S. at p.329 (internal citations omitted).)
Justice O'Connor also pointed out that diversity is important in other aspects of society: "These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in to day's increasingly global marketplace can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints." (539 U.S. at p. 330.)
Gratz v. Bollinger (2003) 539 U.S. 244 (http://supreme.justia.com/cases/federal/us/539/244/case.html ):
Two white applicants sued the University of Michigan when their applications to admissions to the undergraduate school were rejected. The Supreme Court, while again noting that diversity was permissible, said that the University of Michigan's admissions policy was unconstitutional in how it sought to achieve that diversity. Specifically, "We find that the University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'underrepresented minority' applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity that respondents claim justifies their program." (539 U.S. at 270.)
Fisher v. University of Texas at Austin (2013) 570 U.S. __ (http://www.supremecourt.gov/opinions/12pdf/11-345_l5gm.pdf ):
In 2004, after the Grutter decision, the University of Texas at Austin changed its admissions policy so that it explicitly mentioned race as a factor to consider in the overall assessment of a candidate. Fisher, who was white, sued when she was denied admission. The Supreme Court summarized its previous decisions that schools can use race as a factor in admissions. However, the Supreme Court found that the appellate court had not done its job correctly when it was examining the university's actual program. So the Supreme Court sent the case back to the appellate court to do over.
Just the Facts: Affirmative Action and Proposition 209
UCI's Office of Equal Opportunity and Diversity has a concise summary of the implementation of affirmative action, the UC's Regents adoption of SP-1 and SP-2 in 1995, the adoption of Proposition 209 in 1996, and the repeal of SP-1 and SP-2 by SP-28 in 2001. (For more, see http://www.oeod.uci.edu/aa.html )
California Government 101: How to Amend the Constitution
SCA5 is legislation seeking to amend the California Constitution. So here's how the process works.
California has two legislative houses: State Assembly and State Senate.
According to Article 18, Section 1 of the California Constitution, the legislature can propose an amendment to the California Constitution. That amendment must pass each house by a two-thirds vote.
"The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately." (Cal. Const. Art. 18. Sec. 1)
If the amendment passes each house by the required vote, then, according to Article 18, Section 4, the amendment goes before the voters as a Proposition. If the voters pass the amendment by a majority vote, then the amendment becomes law.
"A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail." (Cal. Const. Art. 18. Sec.1)
On January 30, 2014, the State Senate passed SCA5 by a vote of 27 yeas, 9 nays; there were also 3 senators who did not vote. All 27 yeas were Democrats. All 9 nays were Republicans. Of the 3 Senators who did not vote, one was a Democrat and two were Republicans.
As of February 27, 2014, the State Assembly has not yet voted on SCA5.
California has two legislative houses: State Assembly and State Senate.
According to Article 18, Section 1 of the California Constitution, the legislature can propose an amendment to the California Constitution. That amendment must pass each house by a two-thirds vote.
"The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately." (Cal. Const. Art. 18. Sec. 1)
If the amendment passes each house by the required vote, then, according to Article 18, Section 4, the amendment goes before the voters as a Proposition. If the voters pass the amendment by a majority vote, then the amendment becomes law.
"A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail." (Cal. Const. Art. 18. Sec.1)
On January 30, 2014, the State Senate passed SCA5 by a vote of 27 yeas, 9 nays; there were also 3 senators who did not vote. All 27 yeas were Democrats. All 9 nays were Republicans. Of the 3 Senators who did not vote, one was a Democrat and two were Republicans.
As of February 27, 2014, the State Assembly has not yet voted on SCA5.
Plain and Simple ... or Not
The language of SCA5, as passed by the California Senate on January 30, 2014, reads as follows (words in italics mean that the proposed language is being added to the Constitution and words that are stricken-through mean that the existing language is being removed from the Constitution) :
"Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 2013-2014 Regular Session commencing on the third day of December 2012, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:
That Section 31 of Article I thereof is amended to read:
SEC. 31. (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 taken after the section’s effective date.
(c)Nothing in this This section shall not be interpreted as prohibiting bona fide qualifications based on sex which that are reasonably necessary to the normal operation of public employment, public education, or public contracting.
(d)Nothing in this This section shall not be interpreted as invalidating any court order or consent decree which that is in force as of the effective date of this section.
(e)Nothing in this This section shall not be interpreted as prohibiting action which that 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. “State” does not include the University of California or the Public School System.
(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."
"Resolved by the Senate, the Assembly concurring, That the Legislature of the State of California at its 2013-2014 Regular Session commencing on the third day of December 2012, two-thirds of the membership of each house concurring, hereby proposes to the people of the State of California, that the Constitution of the State be amended as follows:
That Section 31 of Article I thereof is amended to read:
SEC. 31. (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
(b) This section shall apply only taken after the section’s effective date.
(c)
(d)
(e)
(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,
(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."
Purpose of This Blog
Recently, I became aware of a State Constitutional Amendment, SCA5, that has been working its way through the California legislature. However, when I began doing research on SCA5 on the internet, I was troubled by some of the inaccurate information being circulated by opponents of SCA5 and among members of the Chinese American community. I also had a hard time finding anyone who was responding to these claims. So, I've decided to at least attempt to shed some light on these issues.
Admittedly, I am not an expert in this field. I am a lawyer, but I practice criminal law, not constitutional law, and I have NO experience working in the legislature. Aside from any legal opinions I may form, I'm going to rely primarily on sources that are readily accessible via the internet and I will do my best to source that information so you can review it for yourself.
My objective is to try to foster an informed discussion of the issues surrounding SCA5.
Admittedly, I am not an expert in this field. I am a lawyer, but I practice criminal law, not constitutional law, and I have NO experience working in the legislature. Aside from any legal opinions I may form, I'm going to rely primarily on sources that are readily accessible via the internet and I will do my best to source that information so you can review it for yourself.
My objective is to try to foster an informed discussion of the issues surrounding SCA5.
Subscribe to:
Posts (Atom)