California’s ultraprogressive legislature is refusing to take no for an answer.

In 2020, it authorized a referendum—Proposition 16—that asked voters to strike this clause from the state constitution: “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.”

If those words sound important, it’s because they are. They were put there in 1996, when California voters adopted Proposition 209—one of the nation’s earliest and most successful pushbacks against race-preferential admissions policies in higher education and other special preferences based on race, sex, or ethnicity.

As it turned out, California voters in 2020 agreed that the words were important. Prop. 16’s effort to repeal Prop. 209 failed spectacularly, with over 57 percent of voters rejecting the measure. And that defeat came despite repeal proponents outspending the opposition by more than 14 to one.

That should have ended the matter. But in Sacramento, bad ideas don’t die just because the public opposes them. California politics is a war of attrition. If the most left-leaning legislators like an unpopular idea, they keep pressing, hoping to wear down public resistance. A new effort to kill off Prop. 209 has thus emerged: Assembly Constitutional Amendment 7, or ACA7.

The inspiration for ACA7 appears to have been the legislatively created California Task Force on Reparations. The task force’s report—almost three years in the making—came out last June. It calls for the legislature to try again to “cleanse” the constitution of Prop. 209. To the task force, Prop. 209 is an obstacle to its proposals for reparations and other government benefits based on race, sex, or ethnicity.

Just a few months after the release of the report, the state assembly voted along party lines in favor of ACA7. Its primary sponsor, Assembly Member Corey Jackson, gave a speech citing the report as support for his view that Prop. 209 is “an unjust law” that people have “a moral responsibility” to disobey. The California Legislative Black Caucus has now designated ACA7 as part of its 2024 Reparations Priority Bill Package. If it passes the state senate before the end of June, it will get a proposition number and be on the November ballot. Californians will then have to decide—yet again—whether to adhere to the principle of nondiscrimination.

Proposition 209 was history-making. I acknowledge that my opinion may be biased, given that I cochaired both the “Yes on Proposition 209” and the “No on Proposition 16” campaigns. But I take comfort in the fact that Paul Johnson, among the most eminent historians of his generation, agreed. In A History of the American People (1997), he chronicles four centuries of the American story. Somehow, he found room to discuss Prop. 209.

None of this is to suggest that Prop. 209 has proved 100 percent effective in ridding California of government programs that discriminate based on race, sex, or ethnicity. But plenty of evidence exists of Prop. 209’s beneficial effects: bringing greater fairness to admissions; improving educational outcomes for underrepresented minority students; refocusing attention on helping low-income individuals, regardless of race or ethnicity, and on improving schools at the K–12 level; and even saving the taxpayer money. The clearest sign of Prop. 209’s effectiveness, though, is that its detractors spent over $25 million to repeal it in 2020. They wouldn’t have done so if the measure weren’t standing in the way of so many of their plans.

The new bill—ACA7—is not identical to the rejected Prop. 16. It is much more deceptive. Instead of repealing Prop. 209 outright, it purports to create a procedure for making “exceptions” to it. In practice, it will nullify the 1996 measure. If ACA7 becomes law, any city, county, or other governmental agency can petition the governor to make exceptions to Prop. 209 for “culturally specific” programs or practices. “Culturally specific” seems to be a new euphemism for “racially specific,” “ethnically specific,” or “sex specific.” (This last category would explicitly include programs or practices targeting sexual orientation and gender identity.)

The governor can either grant or deny the exception. But for a denial, the governor must explain why, and publish the explanation on the Internet. This last requirement is likely intended to exert pressure on governors—including incumbent Gavin Newsom—to make exceptions rather than have to explain why they did not.

At first glance, the bill, as approved by the assembly, might seem to have some built-in limitations on the power to grant exceptions. A closer look, however, reveals that there will be no limits.

First, to get an exception, the program or practice must be for the purpose of “increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty” a specific group based on race, ethnicity, or sex. But that’s no limitation at all: every program or practice that Prop. 209 outlawed was claimed by its proponents to be aimed, at least partly, at one or more of those goals.

Consider public education. Preferential treatment in both college admissions and financial aid has long been said to lead to “improved educational outcomes.” Similarly, having special, “minorities only” dormitories, student lounges, and graduation ceremonies supposedly makes minority students feel more comfortable on campus, thus leading to “improved educational outcomes.” The weight of the evidence shows that these measures don’t have the intended beneficial effect, but trying to explain this to politicians enamored of identity politics has proved futile.

In public employment and public contracting, ACA7’s supposed limitation is even flimsier. Programs that give one race preferential treatment when applying for government jobs or contracts have always been said to help lift that group out of poverty. But the programs do so by causing members of other groups—those who don’t get the job or the contract—to be more vulnerable to sinking into poverty. And they make it less likely that the most qualified person will get the job or the contract. All this is precisely the kind of thing that Prop. 209 was intended to stop.

As for reparations: writing a check for, say, $1 million to every low-income black American in return for the cancellation of a supposed historical and societal debt would certainly lift this group out poverty. But it does so unfairly. Other low-income Californians—including those from other groups that might have just as plausible a case for reparations—would get nothing. A check for $1 million to all black Americans could also be premised on the ground that it would improve life expectancy for that group, since research indicates that, on average, life expectancy rises with income. But it’s unclear why extending the average life expectancy for an entire group—including members with a higher-than-average life expectancy already—is a morally legitimate target. Why not take action to boost the life expectancy of all those suffering from significant health problems, not just those of a particular race? (By the way, I’m not making up the $1 million figure. It’s in line with the task force’s thinking, and it’s much less than the $5 million lump-sum payment that the San Francisco reparations committee has recommended.)

A second arguable limitation on ACA7 is that the programs and practices that the governor approves must be either “research-based” or “research-informed.” Early drafts of ACA7 contained no definitions of those terms. At that point, the most reasonable interpretation would have been that ACA7 could authorize both research itself (“research-based” programs) and programs that are said to be somehow justified by existing research (“research-informed” programs).

But this is slippery, and not just because “research” in the area of race and sex can be found to support anything (though that’s true). The more fundamental problem is that, with such broad, permissible aims for the exceptions—increasing the life expectancy of specific groups, improving their educational outcomes, and (especially) lifting them out of poverty—one hardly needs research. How hard can it be to show that giving a particular group preferential access to jobs and contracts (or a check for $1 million) will help low-income members of that group escape poverty? This again misses the real question: Is it fair to help African Americans out of poverty without providing the same help to low-income Asian Americans, Latinos, and whites? That question isn’t susceptible to “research”; it’s about ethics and government policy. And it’s been asked and answered twice now—first by Prop. 209, and then by Prop. 16.

 It’s worth noting that ACA7 is no model of legal draftsmanship. Somewhere along the line, the measure was amended to provide definitions of “research-based” and “research informed.” The added definitions read as if they come from the hand of a different writer and make little sense in context. A rough paraphrase of the definitions is that a “researched-based” initiative uses comparatively high-quality research, while a “research-informed” one uses low-quality research, if that is all that is available. Since ACA7 allows for exceptions to Prop. 209 under either standard, it essentially authorizes exceptions justified by low-quality research.

No wonder some observers have expressed misgivings about the bill’s wording. One otherwise-sympathetic commentator asked: “Who knows how the state supreme court would interpret language like this or what kinds of issues would be invented that would require interpretation?”

Prop. 209 foes insist that the defeat of Prop. 16 in 2020 was a fluke. Somehow, proponents of the later measure failed to get their message across, and voters got confused—or so the argument goes.

It’s hard not to laugh. With over $25 million to spend, as well as the endorsements of Governor Gavin Newsom, then-senators Kamala Harris and Dianne Feinstein, the University of California Board of Regents, and a host of major corporations and professional sports teams, how could the Prop. 16 campaign have failed to get its message across?

Moreover, a postelection poll from Strategies 360 put the “voters were confused” contention to rest. Respondents were told that Prop. 16 was “the proposal to permit government decision-making policies to consider race, sex, color, ethnicity, or national origin in order to address diversity by repealing constitutional provision prohibiting such policies,” and then asked what they thought of the idea. The response closely resembled the results in the November election. Just 33 percent answered that they thought it was a good idea, 44 percent called it a bad idea, and 22 percent were not sure. Then came the follow-up. To determine whether voters might have misunderstood Prop. 16, the pollsters added:

Sometimes the language on the ballot can be confusing, so here is a little more information about Proposition 16.

California law currently bans the use of policies and practices within government that seek to include particular groups based on their race, gender, ethnicity, and national origin in areas in which they were underrepresented in the past such as education and employment. In order to address issues of diversity and representation, Prop. 16 would have removed this ban and allowed state and local governments to optionally consider factors like race, gender, ethnicity, and national origin in college admissions, public employment, and public contracting. These programs would still be subject to federal laws, meaning that any quota systems would have remained illegal.

With this extra information, the poll results were essentially the same—37 percent called Prop. 16 a good idea, and 47 percent a bad idea. Sure, some undecided respondents now had an opinion. But the proposition would still have been decisively defeated. One arguably unexpected finding—at least for Prop. 16’s proponents—was that support for the idea dropped slightly among blacks, while opposition increased markedly.

All this was in line with opinion polls taken over the last several decades. The race-preferential policy agenda “is controversial,” wrote public opinion experts Paul Sniderman and Thomas Piazza in their book The Scar of Race, “precisely because most Americans do not disagree about it”—they have always strongly opposed it. Indeed, Sniderman and Piazza found that opposition to race preferences tended to be firmer than views on what they called “more traditional forms of government assistance for the disadvantaged.” Many Americans oppose race preferences on principle. Far from being a consensus policy among the public, they are a top-down imposition.

A 2001 poll sponsored by the Washington Post asked: “In order to give minorities more opportunity, do you believe race or ethnicity should be a factor when deciding who is hired, promoted, or admitted to college, or that hiring, promotions, and college admissions should be based strictly on merit and qualifications other than race or ethnicity?” Of the 1,709 adults polled, only 5 percent said that “race or ethnicity should be a factor.” By contrast, 92 percent responded that such decisions “should be based strictly on merit and qualifications other than race/ethnicity.”

Gallup asked a similar question that focused specifically on college admissions in 2003, 2007, 2013, and 2016. “Which comes closer to your view about evaluating students for admission into a college or university—applicants should be admitted solely on the basis of merit, even if that results in few minority students being admitted (or) an applicant’s racial or ethnic background should be considered to help promote diversity on college campuses, even if that means admitting some minority students who otherwise would not be admitted?”

Note how carefully the question was worded. It conceded that if race is not taken into consideration, few minority students may be admitted. It also clarified that considering an applicant’s racial or ethnic background to promote diversity could result in admitting minority students who otherwise wouldn’t be admitted. Both sides of the argument were thus represented.

The results were remarkably clear-cut: each time, poll respondents rejected the consideration of race or ethnicity by a margin of at least two to one. Pew Research Center polls in 2019 and 2022 found that 73 percent and 74 percent of respondents, respectively, opposed considering race or ethnicity as a factor in college admissions.  

Gallup examined the issue again recently. A few months after the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (2023), it asked, “Overall, do you think the Supreme Court’s ruling to end the use of race/ethnicity in admission decisions for colleges and universities was mostly a good thing or mostly a bad thing?” Sixty-eight percent of respondents said that it was “mostly a good thing.” That included majorities of all races. Among African Americans, the figure was 52 percent.

Does all this mean that if ACA7 makes it on to the November ballot, it will go down to ignominious defeat, as Prop. 16 did in 2020? No one with the gift of wisdom likes to make such predictions. But if the past is any guide, defeat seems likely.

The Black Caucus’s decision to designate ACA7 as part of its 2024 Reparations Priority Bill Package has likely made the measure even less appealing to voters than Prop. 16 was. Few issues under consideration in Sacramento are as unpopular with Californians as reparations. UC–Berkeley’s Institute for Governmental Studies polled registered voters in California and found that they opposed cash reparations to the “Black descendants of slaves now living in California” by a two to one margin (59 percent versus 28 percent). Those opposing cash reparations overwhelmingly did so “strongly” (44 percent, versus 15 percent who did so only “somewhat”). By contrast, among those favoring cash reparations, most did so only “somewhat” (17 percent, versus 11 percent who did so “strongly”).

Broken down by race and ethnicity, only blacks favored cash reparations (76 percent). Latinos and Asian/Pacific Islanders (24 percent and 23 percent, respectively) were even less likely to support them than non-Hispanic whites (25 percent). On the other hand, non-Hispanic whites were more likely to express actual opposition (65 percent) than were Latinos (59 percent) or Asian/Pacific Islanders (59 percent).

The most common reasons given for opposition were: “It’s unfair to ask today’s taxpayers to pay for wrongs committed in the past” (60 percent); and “It’s not fair to single out one group for reparations when other racial and religious groups have been wronged in the past” (53 percent). On the second point, it’s fair to say that, given California’s unique history and its status as a non-slave state, other racial and ethnic groups might view themselves as at least as entitled to reparations as African Americans.

Opposition to cash reparations is not necessarily the same as opposition to any kind of reparations. But in this case, it may come close. Only 29 percent of those polled believed that California was doing “too little” to “ensure that Black residents have a fair chance to succeed.” A total of 48 percent responded that the state was either doing “about the right amount” (26 percent) or “too much” (22 percent). Mustering a majority to “do more” by adopting ACA7 won’t be easy. Even among those who believe that the state should do more, making “exceptions” to the ban on racial preferences might not be the preferred solution. Doing more for “Black residents” might instead be a question of helping low-income residents without regard to race, improving public schools, and bringing crime under control in urban neighborhoods. These steps would disproportionately help blacks—and they wouldn’t require exceptions to Prop. 209.

Curiously, the task force’s report claims that over 60 percent of Californians polled favored some sort of reparations. But the report doesn’t reveal how the question was posed. For that, I had to turn to the account on the website for UCLA’s Ralph J. Bunche Center for African American Studies, which conducted the online poll of adults. Even there, I could not get a clear idea of what respondents were told leading up to the question, or exactly how the possible responses were presented.

But it is evident that those polled were asked to respond to the following: “For the atrocities in California, I support/oppose the following specific measures for eligible Blacks.” Respondents were then presented with a list that included education, health care, economics, housing, curriculum, land, debt, monuments, universal income, apology, and cash payments (though the exact wording of these items was not revealed). Each respondent could check “strongly likely” to support, “likely” to support, “less likely” to support, “no support,” or “no position” on the measure. For each such category, a majority of Californians checked either “strongly likely” or “likely” to support.

Given that the question referenced “atrocities in California” (though possibly without specifying what this meant), it may be surprising that 100 percent of respondents didn’t call for reparations. What atrocities in California were the pollsters referring to? Were the respondents instructed that such atrocities had definitely occurred? Did they, in fact, occur? And were they, in fact, atrocities? Did those polled believe that only African Americans who could show that they personally had been victimized would qualify? From the report, one cannot tell.

All in all, ACA7’s chances of winning majority support among voters seem slim, if they believe, as Assembly Member Corey Jackson does, that the proposal is a prelude to reparations for African Americans.

Just before the Supreme Court’s decision in Students for Fair Admissions, the New York Times ran a story, “The Failed Affirmative Action Campaign That Shook Democrats.” By then, Prop. 16’s defeat was almost three years old. But the front-page story suggested that the wound remained fresh.

Part of the story seemed aimed at rebutting the notion that Prop. 16’s defeat was a fluke. It quoted several left-of-center or minority voters who had voted against the measure. They seemed vaguely annoyed that the issue had even been on the ballot.

The Times story also suggested that the soon-to-be-released decision of the Court in Students for Fair Admissions could be politically beneficial to the Democrats, by taking the preferences issue off the table. The article ends with Democratic strategist and political scientist Ruy Teixeira observing that polling has consistently demonstrated public opposition to race-preferential affirmative action: “For years, [the Democrats] have said, ‘We must positively discriminate,’ ” Teixeira noted. “Maybe they no longer need to die on that hill.” And yet, with ACA7, Democrats in the California State Assembly showed themselves still eager to do so. The question now is whether their senate counterparts will join them.

If they do, ACA7 is particularly likely to hurt the Democratic Party with Asian American voters, previously a reliable Democratic constituency that has been drifting away. According to Pew Research, Democrats garnered 73 percent of the Asian vote in 2018; but in 2020, that was down to 70 percent; and by 2022, it had fallen to 68 percent. “It should not surprise us that the Democratic hold on Asian-Americans is declining,” Teixeira told the Wall Street Journal. “What’s surprising is that it isn’t a bigger shift.” Since Asian Americans tend to rank the race-preference issue very high—the “No on Proposition 16” campaign’s donors and volunteers were overwhelmingly Asian American—ACA7 may accelerate the shift.

Meantime, as Teixeira has also noted, Democrats are losing ground among Hispanic voters, too. Imperial County—a jurisdiction more than 85 percent Hispanic at the time of the 2020 census—voted against Prop. 16. ACA7 will probably make things worse for the Democrats among this demographic, especially given its association with reparations.

California is so heavily Democratic that even with the defection of hundreds of thousands of voters, all the statewide elected offices—from governor on down the ticket—could easily remain under Democratic control. Similarly, Democratic majorities in both houses of the state legislature are probably secure. But the U.S. House of Representatives is another matter. Right now, Republicans hold a bare majority there; ACA7 could cement them in place. Of the 72 congressional districts nationwide considered competitive, ten are in California. Small changes in turnout could matter a lot in these districts. In 2022, only 564 votes separated the candidates in California’s 13th District, where the Republican, John Duarte, won. All ten of the competitive California congressional districts voted against Prop. 16; most have large numbers of Asian American voters.

ACA7 supporters don’t get much if it goes on the ballot and wins approval. In Students for Fair Admissions, the Supreme Court confronted the question of whether colleges and universities can, consistently with the Constitution, continue to grant preferential treatment to students from underrepresented races in admissions for the sake of “diversity.” The answer: an unequivocal no.

Students for Fair Admissions covers only admissions. In theory, nothing would prevent California’s governor from approving dozens, even hundreds, of petitions for exemptions from Prop. 209, so long as they don’t involve admissions. But practically, the decision is not just about admissions. The Court’s reasoning was broad, and it was not impressed by arguments that “research” showed race discrimination to be a good thing. It is nearly certain that the same logic will apply to most cases of preferential treatment by race or ethnicity currently viewed as “affirmative action.” Consequently, every time the governor grants an exemption, major litigation would likely ensue.

For a state facing a $68 billion deficit, that ought to be daunting. As of October 2022, the Student for Fair Admissions litigation had cost Harvard University $27 million and the University of North Carolina $24 million over about a decade. Any individual lawsuit against California may or may not cost that much. But there could be many such suits.

Of course, it’s always possible that some of the governor’s exceptions will be upheld in court. From a fiscal standpoint, however, that’s worse. Over the years, Prop. 209 has likely saved taxpayers over $1 billion. If it is riddled with exceptions, those savings will disappear.

It remains to be seen whether the California Senate will take the plunge and put ACA7 on the ballot. But we’ll know soon.

Photo: Assembly Member Corey Jackson, ACA7’s primary legislative sponsor (Jason Armond / Los Angeles Times via Getty Images)


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