Last week, the California legislature approved Assembly Constitutional Amendment No. 5 (“ACA 5”) and sent it to the California Secretary of State, who in turn will submit the matter to the people of the state to vote on this November. If the measure finds favor with a majority of voters, then the California Constitution would be amended so as to repeal Proposition 209 (“Prop 209”), and California once again would be permitted to consider race and gender in affirmative action programs undertaken by the state. Prop 209, itself enacted by voter initiative in 1996, has prohibited (for nearly two-and-a-half decades) the state or any political subdivision within it from “discriminating against” or granting “preferential treatment” on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting. The provision banning “preferential treatment” has meant that, for example, public universities and employers in the state cannot take each individual’s race into account in admitting students or hiring new personnel, even for the purposes of creating a diverse learning (or working) environment or remedying past discrimination against members of historically discriminated-against groups.
In the space below, I offer three observations on ACA 5 in the context of the national conversation currently taking place over racial equality.
Repeal of Proposition 209 Will Have Meaningful Consequences
From my perspective, repeal of Proposition 209 has been a long time in the making, and is a desirable thing. (I should note that I publicly opposed Prop 209 in 1996, and (co-)wrote some academic scholarship that was the basis of a legal challenge against Prop 209 that prevailed in the federal district court but that lost at the U.S. Court of Appeals for the Ninth Circuit.) I can speak most authoritatively about the context of higher education, and in that realm even a conservative U.S. Supreme Court has validated the notion that racial diversity is an important part of educating students and training future lawyers, businesspersons, doctors, and leaders. As the Court put it four years ago in Fisher v. University of Texas at Austin (echoing the blockbuster Grutter v. Bollinger case from 2003), “enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.’ Equally important, ‘student body diversity promotes learning outcomes, and better prepares students for an increasingly diverse workforce and society.’”
Since Proposition 209’s enactment, many University of California (UC) campuses have struggled to achieve the level of diversity they desire, especially when it comes to Black and Latinx students. The unfortunate reality for many academically strong and competitive universities is that it is next to impossible to yield diverse student bodies unless admissions officials are able to take race into account, albeit in a flexible, person-specific and nuanced way. What Justice Blackmun said four decades ago in the famous Bakke ruling is still largely true, at least in many institutions of higher education: “In order to get beyond racism, we must first take account of race. There is no other way.” Regrettably, as the Court in Fisher observed—notwithstanding expressions of optimism by the majority in Grutter that by the 2020s consideration of race by admissions officials would no longer be necessary to accomplish diversity (presumably because the pool of applicants with the strongest academic preparation would generate diversity by itself)—“the demographic data . . . submitted show consistent stagnation in terms of the percentage of minority students enrolling” in competitive universities.
It was largely on account of such stagnation that the Court’s then-swing vote, Justice Anthony Kennedy, (unexpectedly) joined with the more liberal justices in Fisher to produce a result that encouraged proponents of affirmative action and disappointed abolitionists. Of course, the replacement of Justice Kennedy by Justice Brett Kavanaugh may change things down the road, but the window for government use of race under the federal Constitution remains open (and I think will remain somewhat open even if a conservative majority that includes Justice Kavanaugh closes it somewhat, so long as the Court doesn’t slam it shut entirely by completely forbidding race as a factor under the federal Constitution, the way Proposition 209 had done at the state constitutional level).
Yet to take advantage of this window, California needs to repeal Proposition 209 by adopting ACA 5. The argument in favor of ACA 5 becomes even stronger if one believes (as I do) in having great public universities. Among other things, Prop 209 makes it harder for premier public schools in the state (like UC Berkeley) to compete with premier private universities in the state and nation (like Stanford and the Ivies), because private universities, even those located in California, are not governed by Proposition 209 and thus can (and do) use race as a factor in admissions.
So, as I wrote in the LA Times right after Fisher came down, Proposition 209’s days could very well be numbered. Indeed, in a Friend-of-the-Court brief submitted in the Fisher case, then-California Attorney General Kamala Harris weighed in—urging the Supreme Court to “reaffirm its decision that public colleges and universities may consider race as one factor in admissions decisions”—precisely because of the possibility that California would rescind Proposition 209, a prospect that today seems likely.
Of course, even if Prop 209 is done away with, not every admissions plan using race would satisfy the terms of Fisher. UC officials will have to explain why race-neutral approaches, such as those UC is now using, don’t produce enough diversity. The university will also have to show that its programs do not amount to a system of racial quotas, and also that admissions officials take seriously other kinds of diversity beyond the racial variety. But it’s not hard to imagine that UC can meet those requirements in much the same way that the University of Texas did.
California Is Going About Repealing Proposition 209 the Right Way
Even though many of us have always disfavored Proposition 209 and the inflexibility it represents, it is part of the California constitution and can be repealed only with the assent of the voters. So says the California constitution. That is why the state legislature put the matter on the ballot, rather than tried to remove Proposition 209 from the state law all by itself. This is pretty basic stuff under California’s rules for changing its constitution, and I’m glad the California legislature is going about repealing Prop 209 in this manner. But the California legislature has not, unfortunately, always been so respectful of state constitutional procedures and of decisions the people of California have made to enshrine (contentious) policies into state law. For example, in November 1994, California voters adopted Proposition 187, a statewide initiative statute that amended California’s Education, Government, Penal, and Welfare and Institutions Codes to make immigrants unlawfully present in California ineligible for various public health, public social, and public education services.
In 2014 a group of well-intentioned California legislators enacted SB 396, legislation that by its terms removed from the California statute books various provisions of Proposition 187 that had been held unconstitutional by a federal district judge (Judge Pfaelzer) and had been enjoined from being implemented.
From one angle, this legislative effort seemed quite sensible. Why shouldn’t California’s statute books reflect the current state of things, and be purged of provisions that were not currently enforceable and that send demeaning messages to members of the community? But the problem with SB 396 was that the California Constitution prohibits the state legislature from repealing any part of a voter-enacted initiative unless the initiative measure explicitly empowers the legislature to do so, or unless the voters themselves ratify the repeal. Initiative measures, even those that take the form of statutes rather than state constitutional amendments, occupy a space in the state constitutional hierarchy above ordinary enactments by the legislature. In other words, a statutory initiative such as Proposition 187, like a state constitutional amendment, lies outside the control of the legislature to undo or modify. And this makes sense, if the initiative device is itself supposed to be a check on—and a response to dysfunction within—the state legislature. Importantly, Proposition 187, by its terms, did not authorize the legislature to undertake repeal by ordinary legislation without voter approval.
But what about the fact that the parts of Proposition 187 at issue here have been declared unconstitutional by a federal judge? Shouldn’t that fact change things? As one California legislative staffer said: “These code sections are unenforceable. . . . [so that e]ssentially, [SB 396 is] ‘code cleaning.’”
While initially appealing, the “code-cleaning-on-account-of-unenforceability” view reflects a fundamental misconception of judicial review and what it means when a court “invalidates” or “strikes down” an enactment. A judicial declaration that a statute is unconstitutional (even if accompanied by an injunction against the statute’s enforcement) is in reality simply a statement that that court—and all courts that are bound by that court—will refuse to allow implementation of the statute as of that time. When a statute is “struck” down, it is not literally stricken from the statute books; it is simply held unenforceable for the time being—until and unless something changes. If something does change to undo the court’s invalidation, then the statute can be enforced without having to be reenacted, since it remained on the statute books all along. (Indeed, SB 396 would not be needed except for the fact that Proposition 187 remained on the statute books.)
Well, what might change after a court invalidates a statute to bring it back to life? For one thing, a higher court could reverse the ruling that invalidates the statute. Certainly no one would argue that the California legislature could repeal Proposition 187 during the time Judge Pfaelzer’s ruling was pending on appeal to the Ninth Circuit, because we all know that many district court rulings are short-lived. But by 2014, the appeal was ancient history, so wasn’t Judge Pfaelzer’s opinion permanent at that point? Not quite. Intervening developments in the law—e.g., new Supreme Court cases handed down—could enable parties to seek the “reopening” of an older case and get relief from a court order that no longer reflects the current legal or factual landscape. Indeed, although the political climate in California would likely prevent elected officials from trying to resurrect Proposition 187 anytime soon, there are parts of the Supreme Court’s opinion in Arizona v. United States in 2012 that upheld some of Arizona’s SB 1070 and that arguably call into question some of Judge Pfaelzer’s analysis concerning the involvement of local law enforcement officials in policing immigration violations.
Suppose Judge Pfaelzer’s ruling had been appealed to, and affirmed by, the Supreme Court back in 1994. Would the analysis be different then? Not really. Even a Supreme Court ruling invalidating a statute does no more than indicate a current unwillingness by a majority of the justices to permit enforcement, but that too could change. Some of the most important (and righteous) decisions by the Supreme Court have involved overruling past Supreme Court decisions that we now think were wrongly decided, so we know that no ruling by the Supreme Court is truly permanent.
The short of it is if state law requires resort to the people to undo the actions of the state electorate (as is true in California), such niceties need be respected, and the adoption of SB 396, which took effect when then-Governor Jerry Brown signed the measure in 2014 without any input from the voters, was essentially lawless, notwithstanding whatever righteousness may have been behind it.
I am glad that, as California seeks to get rid of Proposition 209, it is making use of a process that involves the voters and that complies with the state constitution.
Return to Remedy?
My final observation is a brief but important one. The national discussions about race that are occurring today are often framed in terms of remedying past wrongs, not just in terms of the instrumental value of diversity. Race-based affirmative action programs litigated in the 1970s and 1980s were themselves most often based on a remedial justification. I have always thought that remedying wrongs committed, especially against Blacks, in America is a normatively powerful basis for taking into account race today (even if diversity is also an argument that has a certain appeal.) And I expect many other constitutional scholars and observers have similarly lamented that remedial justifications for affirmative action have essentially fallen by the doctrinal wayside since the late 1980s, largely because the Supreme Court was so disparaging of some remedy-based, race-conscious programs that it considered at the tail end of last century. But many of these programs that were unattractive to the Court were plagued by problems that had nothing to do with the basic validity and power of the remedial theory. And so it is very unfortunate that remedy as a theory hasn’t gotten much play in recent cases. Hopefully, that will change.
None of this is to say remedy-based programs are free from any difficulties. Deciding when a remedy is a reasonable one for the legislature to have pursued (or authorized) is a hard task for courts to discharge unless we all have a clear and agreed-upon sense of the scope of the past wrongs to be rectified. Even then, knowing when a remedial program seems to go too far is not easy. If one is inclined to defer to the legislative process in this arena, the matter becomes more manageable. But if not, then judicial review of the use of race, even when undertaken for legitimate remedial purposes, remains complicated in practice. But remedy does explain the instinct that many people have that programs designed to help Blacks may be more justified than, say, programs to help Asians (who have suffered discrimination in America to be sure, but not in the same way.) And remedy also provides a good response (in a way diversity does not) to arguments by Whites that they are dwindling in numbers at certain institutions (say at UC Berkeley, where self-identified Whites made up only 21 percent of the freshman class entering in 2019 even though the percentage of Californians more generally who identify as White is about twice that.)
It will be good if, after Proposition 209 is repealed, in California (and elsewhere) legal rationales for the use of race based on diversity are supplemented by remedial arguments more energetically than has been true in recent decades.
