Legislation to give voters say on race-, gender-based policies moves forward

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Former UC regent Ward Connerly says lower admission rates of minorities do not necessarily represent discrimination. He supported Proposition 209 when it passed in 1996 and heads the American Civil Rights Coalition, a group opposing SCA 5.

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California voters may soon have the opportunity to decide if race, gender or ethnicity should be used as factors of consideration in admission, retention and recruitment programs in the state’s higher education systems, including the University of California.

A proposed constitutional amendment approved last week by the state Senate intends to repeal parts of Proposition 209, the 1996 ballot initiative that prohibited the consideration of race, sex or ethnicity in public education, employment or contracting.

Should it succeed, Senate Constitutional Amendment No. 5 would allow public education institutions to consider such traits in their programs. SCA 5 will next move to the state Assembly for approval.

If passed, voters could have their say this November or in November 2016.

The number of minority students admitted to UC Berkeley fell dramatically after Prop. 209. For example, about 50 percent of African Americans who applied for freshman admission to UC Berkeley in 1995 were admitted; in 1998, only 20 percent of African Americans who applied were accepted. In fall 2013, about 10 percent of African American students who applied were accepted, against an overall admission rate of 20.8 percent. Currently, African Americans comprise 3.4 percent of UC Berkeley’s undergraduate population.

Janet Chin, a spokesperson for Sen. Ed Hernandez, D-West Covina, who introduced the amendment, said its goal is to ensure universities can choose top students.

“There are so many Latino, African American and Native American students coming out of high schools that are college-eligible, but we’re not seeing that turnout in college graduates,” Chin said.

Such diversity policies have accrued mixed blessings from courts and citizens, however.

In 2003, the Supreme Court ruling in Grutter v. Bollinger left intact an affirmative action program at the University of Michigan Law School. The Supreme Court is now considering the legality of a Michigan constitutional ban on affirmative action enacted after the Grutter case. Last summer, the court ruled in Fisher v. University of Texas at Austin that university admissions policies with affirmative action must be “narrowly tailored” to its educational goals, as determined by lower courts.

Californians might also look favorably at this new legislation — a 2011 statewide survey conducted by the Public Policy Institute of California found that 75 percent of residents thought it was somewhat to very important that schools have a racially diverse student body.

Yvette Felarca, a national organizer for BAMN, a group supporting affirmative action, said she supports SCA 5 in principle but is against the use of the ballot initiative process.

Opponents of affirmative action-type policies, such as former UC regent Ward Connerly — often considered the driving force behind Prop. 209 — believe standards for programs should be applied equally.

“I believe in merit and in treating everyone equally,” Connerly said. “I hate discrimination, but the fact that the numbers are down for some groups does not mean that there is discrimination.”

Similarly, when the legislation was passed in the Senate, Republican leader Bob Huff said on the floor the amendment could unintentionally “discriminate against students.”

SCA 5 has dozens of registered organizations supporting it, including the UC Student Association. The only registered opponent is Connerly’s American Civil Rights Coalition.

Mitchell Handler covers academics and administration. Contact him at [email protected] and follow him on Twitter @mitchellhandler.