Backdoor affirmative action

As much as this page exhorted Californians to vote against Proposition 209 in 1996, the constitutional amendment that bars affirmative action in state hiring and admissions at public colleges is now the law, having survived numerous legal challenges. A bill passed by the Legislature this year that would allow the University of California and California State University to “consider” race, gender and so forth in the admissions process is a clear attempt to flout that law. Gov. Jerry Brown should veto SB 185, which would thwart the will of the voters even if it survived a certain legal challenge.

Sen. Ed Hernandez (D-West Covina) told Times reporters that SB 185 was not in conflict with Proposition 209 because it would only allow universities to consider those factors rather than give preference to them. In fact, the bill specifically says that “no preference shall be given.” But that’s doublespeak. Why would an admissions committee consider race, gender or national origin if not to factor them into its decisions? Indeed, the actual wording of the bill makes it clear that admissions directors wouldn’t just be chatting aimlessly about applicants’ backgrounds.

The bill prods the university systems to take race and similar factors into account “to the maximum extent” allowed by a 2003 U.S. Supreme Court decision that upheld the use of affirmative action at the University of Michigan’s law school. The court ruled that although strict racial quotas violated the U.S. Constitution, the law school could give preferential treatment to applicants on racial grounds as part of a comprehensive admissions policy designed to make its student body more diverse.

We support that decision, and we continue to believe that affirmative action policies are both necessary and fair. But California voters do not agree, as they proved when they passed Proposition 209, which prohibits preferential treatment on the basis of race, sex, color, ethnicity or national origin in public education and the public sector. Much as we would like to see Proposition 209 repealed, the will of the people cannot be undone by a backdoor act of the Legislature. If Californians are unhappy with the effects of Proposition 209, they should go back to the polls and vote to re-legalize affirmative action or find other legitimate ways of encouraging diversity and fairness in public institutions. This page will support them.


Historically underrepresented groups — mainly, African American and Latino students — should have a better chance at the affordable higher education that they were long denied. Fifteen years after Proposition 209 passed, the state still needs affirmative action. We understand the frustration of the initiative’s opponents, after multiple losses in court. Yet as a matter of principle, we also object to flouting the will of the voters who placed the measure into the state Constitution.