WU: Legalizing Discrimination in California—Take Two

California is a peculiar case of counteracting, yet converging forces regarding affirmative action. In 1996, it was the first state to codify a statewide constitutional ban on preferential treatment on the basis of race, color, sex, ethnicity, or national origin via the passage of Proposition 209. Over the last two decades, big players in the political, educational, and corporate arenas have tried to sabotage that prohibition by way of legislative repeals and defiant practices. The closest they got was Proposition 16 in 2020, a legislative constitutional amendment which had made its way to the ballot but subsequently failed when over 9.65 million Californians from all walks of life decided to keep Prop. 209 in place.

But neither public will nor previous setbacks can deter diehard advocates of racial preferences. This year, Democratic state lawmakers in America’s most progressive state have geared up for a second run. In February, Assemblymembers Corey Jackson, David Alvarez, Mia Bonta, and Akilah Weber—all Democrats—introduced ACA-7, an assembly constitutional amendment designed to significantly erode Prop. 209. While the original wording of the provision would not be outright erased, this amendment adds the following exemption:

(2) (A) Notwithstanding paragraph (1) but subject to approval by the Governor pursuant to the procedures in subparagraph (B), the State may use state moneys to fund research-based, or research-informed, and culturally specific programs in any industry, including, but not limited to, public employment, public education, and public contracting, if those programs are established or otherwise implemented by the State for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations.

To put it simply, California state agencies, universities, and colleges would be permitted to discriminate on the basis of “race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations” in any public programs, as long as the discriminator could demonstrate the intent to improve outcomes and show supporting research evidence. Under the subterfuge of “an exemption,” ACA-7 effectively contradicts and overrules the constitutional restriction on government-sponsored discrimination.

[More from Wenyuan Wu: “The Beginning of the End for Racial Preferences”]

ACA-7 has been making progress—it was approved by the California State Assembly Committee on Human Services on June 7 with a 6-to-2 vote, and by the Assembly Judiciary Committee on June 13 with an 8-to-3 vote. The extreme political imbalance in the California State Legislature ensures the amendment’s safe passage. Each of the two committees has produced a bill analysis supporting the amendment on account of “negative impacts of Prop 209 on California’s population.”

A closer examination of these quasi-legal analyses reveals a multitude of cherry-picked arguments and falsehoods. Using bad research to justify a political commitment to racial preferences is an acute problem for those who seek to revive affirmative action in higher education. For this purpose, a 2020 University of California, Berkeley study by Zachary Bleemer is quoted regularly as evidence of decreasing enrollment among underrepresented minority students in the University of California (UC) system as a result of Prop. 209.

The Bleemer study was not peer-reviewed at the time of publication, but it was praised uncritically by proponents of race proportionality throughout the Prop. 16 campaign in 2020. Richard Sander of UCLA noted that Bleemer’s work is “wrong on its basic conclusions,” by relying on demonstrably false data points concocted to fabricate declines in minority student admissions and graduation. Between 1997 and 2022, African-American undergraduate admissions into the UC system have steadily increased from 1,687 (4%) to 6,399 (5%). The four-year graduation rate for African-American students nearly doubled from 35.4% in 1999 to 61.2% in 2017. Sander also exposed the unethical process by which the UC system and the political establishment endorsed and promoted a working paper before proper academic vetting. John S. Rosenberg, writing for Minding the Campus, offers an even more scathing critique of the Bleemer paper, calling out its political nature and brazen “violation of scholarly norms.”

The Bleemer paper is significant both in its own right and in its role in enabling a piece of legislation demanding that racial preferences be legalized as long as the programs in question are “research-based” or “research-informed.”

[More from Wenyuan Wu: “Thorny Trade-Offs After the Harvard and UNC Rulings”]

Bad research also pervades the bill analyses for ACA-7 regarding broader racial disparities. Committee experts claim, based on research, that “impacts of Proposition 209 in education carry forward into the overall rate of poverty for marginalized communities in California.” This flawed logic—mistaking correlation for causation—once again defies nuanced realities. Wealth gaps and income inequality cannot be explained squarely by racial inequity, provided that Americans of Asian descent have the highest median income in the nation and that the black immigrant population significantly out-earns the U.S.-born black population.

California Democrats renewed their attack on equality shortly before the U.S. Supreme Court’s decision in the Harvard and University of North Carolina cases. It comports with a coordinated national effort to preempt the tightened legal parameters around how colleges and universities can use race in admissions. State lawmakers realize the sheer unpopularity of a blanket repeal and choose the stealth-route by adding an exemption that is a de facto handicap on the civil rights protection of equal treatment. Notably, ACA-7’s coauthors include Assemblywoman Mia Bonta, wife of California State Attorney General Rob Bonta, and Assemblywoman Akilah Weber, daughter of California Secretary of State Shirley Weber.

Unsurprisingly, ACA-7’s registered supporters include the usual lineup of progressive interest groups: the California Federation of Teachers, the California Teachers Association, the NAACP, the National Association of Social Workers, and the Education Trust. The California-Hawaii State Conference of the NAACP opines: “The ability to use state funds to implement research-based or research-informed culturally specific programs or interventions to improve educational outcomes for, or lift out of poverty, specific ethnic groups or marginalized genders will significantly benefit our community.”

In other words, politicians, union organizers, instigators, and other “feel-good, do-bad” players wish to immortalize ineffective public policies rooted in group grievances and an ever-expanding universe of victim identities. This time, like before, they hope against hope that they can fight fire with fire.

Image: Adobe Stock


2 thoughts on “WU: Legalizing Discrimination in California—Take Two

  1. Bleemer’s study doesn’t pass the sniff test. He’d have you believe that it makes a big difference in poverty that the state doesn’t (or isn’t supposed to, anyway) prefer a small number of black and Hispanic students so they attend Cal or UCLA instead of a less prestigious school in the state. The reasons for high rates of poverty in some California communities are not in the least related to where a few of the better students go to college.

  2. The ongoing debate around affirmative action in California raises important questions about equal treatment and the role of government-sponsored discrimination. While some argue for the erosion of Proposition 209, it is crucial to critically examine the arguments presented. The use of flawed research and cherry-picked data to support the revival of racial preferences undermines the integrity of the discussion. True equality should be based on individual merit and opportunity, rather than perpetuating group grievances. It is essential to consider the long-term implications and unintended consequences of policies that prioritize identity-based preferences over fairness and equal treatment for all. #EqualityMatters

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