Saturday, March 1, 2014

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

More time needed to study impacts, reach out to affected communities

SACRAMENTO – 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.d

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

Sens. Lieu, Yee and Liu ask Hernandez to hold SCA 5

February 27, 2014

- 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

More time needed to study impacts, reach out to affected communities

SACRAMENTO – 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.dpufI'm

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.

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):

"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. 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.
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."

Let's start with the first paragraph.
"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:

"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.