Careful, California voters, your wishes are under attack

Democrats in the state Senate on Jan. 30 used their two-thirds supermajority to pass SCA 5, which would put a constitutional amendment on the November ballot to overturn Proposition 209's ban on racial, ethnic and gender preferences in admissions by the state's public colleges and universities.
(Anthony Russo / For The Times)

Much progress has been made in the fight for equal treatment under the law for all people. Unfortunately, California politicians are actively working to ensure that the state reverts to policies that treat people differently based on skin color or ethnic identity — policies that were rejected by voters more than 17 years ago.

In 1996, California voters outlawed the use of racial preferences in state institutions by overwhelmingly passing Proposition 209. This initiative amended the state Constitution to ban discrimination and preferential treatment based on race, color, sex, ethnicity or national origin in public education, public contracting and public employment. The simple language of the initiative relied on the important principle that it is wrong to treat people differently based on skin color.

Since then, many politicians have sought to undermine and reverse the law, with little success. But with a Democratic governor and supermajorities in both houses of the Legislature, things are different this time around.

Democrats in the state Senate on Jan. 30 used their two-thirds supermajority to pass a bill, SCA 5, which would put a constitutional amendment on the November ballot to overturn Proposition 209’s ban on racial, ethnic and gender preferences in admissions by the state’s public colleges and universities.


The U.S. Supreme Court issued a stark reminder last summer in Fisher vs. University of Texas that racial preferences are on their way out. The high court ruled that universities must take every possible race-neutral measure to foster diversity before resorting to racial policies. But Sen. Ed Hernandez (D-West Covina), the measure’s author, and most of his colleagues are eager to ignore this and instead push California onto an ugly and legally unstable path back toward race-based preferences.

Since the passage of Proposition 209, California’s public colleges and universities have embraced real diversity on campus through race-neutral alternatives, such as accepting the top percentage of students at all high schools, using socioeconomic consideration in admissions, adding mentorship and outreach to underperforming schools, dropping legacy preferences and expanding need-based scholarships.

Although the share of underrepresented minorities in the UC system dropped from 20% before the ban to 18.6% in 1997, by 2008 it had rebounded to 25%, with an 18% rise in graduation rates among minorities. The numbers at the elite UC Berkeley and UCLA campuses have not fully recovered to pre-Proposition 209 numbers, but they have made considerable progress. Moreover, both were listed in U.S. News & World Report’s Economic Diversity Among the Top 25 Ranked Schools for the 2011-12 year, with the highest percentage of undergraduates receiving Pell grants.

This is precisely the kind of diversity improvement the court said in Fisher would preclude the reintroduction of race preferences.


My involvement with the issue of affirmative action began as a 19-year-old student when I sued the University of Michigan for using different admissions standards based on an applicant’s race. The Supreme Court eventually ruled in my favor in its 2003 Gratz vs. Bollinger decision, but it allowed more nuanced forms of racial policies to continue in a companion case. This split decision moved me to follow California’s example and spearhead a constitutional amendment similar to Proposition 209 in Michigan, which voters approved 58% to 42% in 2006. Since California’s bold step toward equal treatment, seven states have followed its lead.

The proposed changes for California are profound. Disguised as calls for equalizing opportunities and increasing diversity for better learning, these changes are a clear assault on equal protection in California. We are all individuals, with unique dreams, goals and experiences. Racial preferences empower government officials to divide us into categories, giving special treatment to some while discriminating against others, all on the basis of skin color or ethnicity. This is not how a civil society should treat its citizens.

There is no doubt that affirmative action policies began with the best of intentions: for people to be treated without regard to race. But they have turned into policies that instead encourage administrators and politicians to treat people differently based on skin color, creating new injustices with new victims. Treating people differently to make up for inequalities or create diversity only reinforces inequality and deepens racial division.

No politician, public official or bureaucrat should be able to decide, based on race, ethnicity or sex, who should receive special treatment and who can be discriminated against. Each person has the right to be treated as a unique individual based on his or her personal achievements and characteristics. We as Americans must continue to insist on that right.


Jennifer Gratz is the founder and chief executive officer of the XIV Foundation, named after the 14th Amendment, to defend the principle of equal treatment and a colorblind society.