On July 25th, the California Foundation for Equal Rights (CFER) held its 4th annual conference to commemorate the 30th anniversary of the passage of Proposition 209 in California. Attendees not only celebrated the milestone but also reflected on the years of attempts by the state legislature to weaken or abolish this law, as well as the evolution of admission policies within the University of California (UC) system.
Proposition 209 was passed by California voters in 1996 with over 54.6% of the vote, explicitly prohibiting discrimination or preferential treatment based on race, gender, color, ethnicity, or national origin in public education, employment, and contracting. However, the proposal continued to face challenges from the legislature following its passage:
In 1999 (SB2047 & SB44), attempts were made to “reinterpret” Proposition 209 to seek preferential treatment for minority groups. Then Governor Gray Davis vetoed the proposal, emphasizing that Proposition 209 had clearly prohibited preferential treatment, and the legislature had no authority to misconstrue it.
In 2011 (SB185), the proposal advocated for the consideration of race and gender factors in admissions to the California State University (CSU) system without providing preferential treatment. Professor Gail Heriot, Vice-Chair of CFER, pointed out this serious misconception, and the bill was eventually vetoed by Governor Jerry Brown.
In 2014 (SCA5), an attempt was made to eliminate the application of Proposition 209 in higher education. Despite passing in the Senate, the proposal was eventually withdrawn due to strong opposition and protests from Asian American voters.
In 2020 (ACA5 / Proposition 16), amid the social climate following the George Floyd incident, the state legislature passed ACA5 and promoted it as Proposition 16. The supporters had up to 14 times more funding and received backing from major corporations, political figures, and professional sports teams, while the opposition primarily relied on volunteers and small donations. Ultimately, the opposition, upholding the principle of “equality before the law,” defended Proposition 209 with over 57% of the vote.
The legislature did not relent, continuously pushing for related bills in recent years:
In 2024 (ACA7), an attempt was made to authorize the governor to bypass Proposition 209 through exemptions, but the bill was ultimately defeated in the Senate.
In 2023, a report on reparations for African Americans called for exempting African American students from paying University of California tuition fees and allocating funds to K-12 schools based on specific ethnic ratios.
In 2026 (New ACA7), there is ongoing efforts to consider racial factors in admissions, having passed the House and two committees in the Senate. Despite a temporary delay due to political considerations, if the bill goes to a public vote in 2028, it would allow introducing racial considerations in programs like Gifted and Talented Education (GATE) in K-12 schools.
Heriot also highlighted anomalies in Federal Student Aid (FAFSA) applications, where Asian and white students are more likely to receive loan-based aid under equal economic conditions, while minority students targeted for recruitment are more likely to receive non-repayable scholarships.
Professor Richard Sander from the University of California, Los Angeles School of Law reviewed the history of affirmative action policies dating back to President Johnson’s “Great Society” program in the late 1960s. The stance of the Supreme Court on these “affirmative actions” has evolved from limiting the scope of affirmative action in the 1978 Bakke case, through the divergent precedents of the Michigan University cases in 2003, to the “Students for Fair Admissions v. Harvard” case in 2023, which ruled that affirmative action in admissions violated the Fourteenth Amendment.
However, the University of California system has gradually diverged in practical implementation from the spirit of the law:
From 1997 to 2002, UC Berkeley School of Law faced public pressure after a decrease in African American freshmen (only 1 in 1997) following the implementation of a “race-neutral” policy, prompting the institution to seek reinstatement of race considerations.
Sander pointed out that in modern America, individuals within admissions institutions are reluctant to be labeled as “racist.” University admissions departments, equipped with elaborate mechanisms, can implement various complex strategies to promote racial preferences. Furthermore, universities have the financial resources to handle related lawsuits. With the changing political landscape in California, judges may lean towards a “left-wing Democratic” stance. If a lawsuit is brought against the University of California, the courts may not strictly enforce Proposition 209.
From 2007 to 2012, UCLA reintroduced racial factors in admissions without legal challenges, prompting other UC campuses to follow suit with almost the entire system reinstating racial preference consideration by 2012.
In 2020, despite expert group recommendations to retain the SAT after a year-long review, the UC Board swiftly decided to abolish the SAT exam to lower admission thresholds.
Research by Professor Sander indicates that significant preferential policies can lead to severe “Mismatch effects,” where recipients struggle academically after admission and may incur significant tuition debts while failing professional exams like the bar exam. Additionally, teachers face challenges with the varying levels of student aptitude in the same classroom. Eliminating standardized tests like the SAT further undermines universities’ ability to maintain high academic standards.
Fortunately, positive shifts are underway. Following the ruling in the Harvard case in 2023, by 2025, the extent of law schools employing racial preferences has halved, transitioning towards an equal principle of fairness. Moreover, in the last six months, over 3,000 UC faculty members have jointly called for the reinstatement of the SAT exam. The Board has committed to reassessing, with the possibility of the SAT returning in 2028.