California Proposition 16: Repeal Proposition 209 Affirmative Action
In 1996, California voters approved Proposition 209, which required that the state be blind to race, sex, color, ethnicity, or national origin when making government decisions about public employment, public education, and public contracting, and may not discriminate against or grant preferential treatment to any persons on that basis.
Proposition 16 would overturn Proposition 209 and would allow the state government to discriminate against or grant preferential treatment to persons based on race, sex, color, ethnicity, or national origin.
The Legislative Analyst’s Office (LAO) anticipates no direct fiscal effects of this measure.
Proponents’ Arguments For
Proponents argue that only seven other states ban affirmative action programs, and Proposition 16 would mean that everyone has an equal opportunity to succeed. Advocates say it would enable Californians to root out discrimination and create a state that reflects values of diversity and fairness, leading the nation in creating equal opportunity. It would let elected leaders design programs like affirmative action to provide good jobs, better wages, and access to great schools for all Californians. This would remedy gender bias and racism, building a California that reflects our shared values.
Opponents’ Arguments Against
Opponents argue that Californians approved Proposition 209 decades ago to prohibit the state from discriminating against, or granting preferential treatment to, individuals based on race, sex, color, ethnicity, or national origin. Prop. 16 would overturn that and explicitly allow the state to discriminate and grant preferential treatment. This rejects the principle of equal opportunity, devalues merit, legalizes discrimination, and pits groups against each other, opponents say. Since ending affirmative action California has improved diversity, with underrepresented minority enrollment at the University of California campuses up from 15 percent to 26 percent, graduation up from 31.3 percent to 55.1 percent, minority civil servants up from 70,000 (38 percent) to 110,000 (50 percent). Current law doesn’t actually ban all affirmative action: affirmative action based on economic factors is legal, as are bona fide qualifications based on sex and actions necessary for receipt of federal funds. Finally, a peer-reviewed study on Caltrans shows they saved $64 million (the equivalent of $1+ billion in 2020) from 1998 to 1999 when Proposition 209 ended preferential contracting. There is no reason to go back to those higher costs, opponents say.
Proposition 209 (1996) was a pioneering law aimed at ending the practice of discrimination by state government. This was driven in a large part by growing realization, as one writer put it, that:
The single biggest problem in this system—a problem documented by a vast and growing array of research—is the tendency of large preferences to boomerang and harm their intended beneficiaries. Large preferences often place students in environments where they can neither learn nor compete effectively—even though these same students would thrive had they gone to less competitive but still quite good schools.
One study found that Prop. 209 increased minority graduation rates in the University of California system because it stopped the incentives to push students to campuses for which they were less well prepared and instead encouraged picking campuses based on ability. This has been a general finding of research on the effects before and after of removing affirmative action policies based on race and sex. Preferences created incentives for minorities to mismatch college choices, leading to low grades, low graduation rates, and long-term economic disadvantages relative to those who were not so influenced.
Fears that in the absence of preferences discrimination would set in proved unfounded as well. Since Proposition 209 passed, the diversity of students at the University of California has grown rapidly. And an examination of women faculty in the UCs found no decline after preferences were removed. Meanwhile, evidence of discrimination by universities to meet racial preferences is extensive and has blown up into a massive scandal centered around Harvard with respect to discrimination against Asian-Americans.
Looking at all state employees in California, the latest data (2018) shows that in the absence of affirmative action the state government has sought diversity in its workforce. 9.6 percent of state employees were black, while 6.5 percent of the state population is black. Forty-six percent of state employees are women while 50 percent of the population is. And, more concerning, 25 percent of state employees are Hispanic while 39 percent of the state population is (though Hispanic state employment did improve from 23 percent in 2014).
Other research on government contracting preferences for minority-owned businesses found that preferences slightly benefited black-owned businesses but could not be shown to affect black employment.
In the U.S. Supreme Court ruling that quotas and extreme affirmative action by the government are unconstitutional, Justice Antonin Scalia wrote:
The difficulty of overcoming the effects of past discrimination is as nothing compared with the difficulty of eradicating from our society the source of those effects, which is the tendency—fatal to a Nation such as ours—to classify and judge men and women on the basis of their country of origin or the color of their skin. A solution to the first problem that aggravates the second is no solution at all. I share the view expressed by Alexander Bickel that “[t]he lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic society.
California’s state government need not begin to discriminate to help improve opportunities for those who may be discriminated against by private actors. They can do the most by setting a good example, applying the Rev. Martin Luther King’s principle to judge people by the content of their character, not the color of their skin.