2020 California Proposition 16

Assembly Constitutional Amendment No. 5, ultimately placed before voters as California Proposition 16, was a legislatively referred constitutional amendment concerning affirmative action and equal-opportunity policy in California. The measure originated in the California State Legislature in January 2019 and sought to repeal Section 31 of Article I of the California Constitution, a provision created by Proposition 209 in 1996. Proposition 209 generally prohibited state and local governmental institutions from discriminating against, or granting preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting. ACA 5 was introduced on January 18, 2019, by Assembly Members Shirley Weber, Reginald Jones-Sawyer, and Timothy Grayson. The proposal was intended to restore the ability of public institutions to consider race, sex, ethnicity, and related characteristics as factors in policies designed to address disparities and improve diversity, subject to applicable federal and state anti-discrimination law. Its supporters argued that Proposition 209 had constrained efforts to remedy historic and continuing inequality, including in university admissions, government hiring, and public procurement. Opponents argued that repealing Proposition 209 would authorize unequal treatment and undermine the principle that government decisions should be made without regard to race or sex. The legislature approved the measure during the national racial-justice debate of 2020. The Assembly passed it by a 60–14 vote on June 10, 2020, and the Senate approved it by a 30–10 vote on June 24. Because it amended the state constitution, the proposal required voter approval. It appeared on the November 3, 2020, general-election ballot as Proposition 16, under the official description “Allows Diversity as a Factor in Public Employment, Education, and Contracting Decisions.” The Yes campaign, operating as the Opportunity for All Coalition, presented repeal as a way to permit narrowly tailored diversity and affirmative-action policies in public institutions. Supporters included Assemblymember Shirley Weber and organizations such as the Equal Justice Society, Chinese for Affirmative Action, and the Mexican American Legal Defense and Educational Fund. The opposition campaign, Californians for Equal Rights, argued that Proposition 209 should remain in force and emphasized race-neutral equal treatment. The proposition was defeated, with approximately 57 percent of voters opposed and 43 percent in favor. Because voters rejected Proposition 16, Section 31 of Article I remained part of the California Constitution. California public employers, public universities, and public contracting authorities therefore continued operating under the restrictions established by Proposition 209, while using legally permissible race-neutral approaches such as socioeconomic, geographic, educational-context, and first-generation-student programs. Proposition 16 remains significant as the first attempt to repeal Proposition 209 that reached the statewide ballot, following earlier legislative efforts that did not do so.

The immediate legal background to Proposition 16 was California Proposition 209, approved by voters in 1996. Proposition 209 added Section 31 to Article I of the California Constitution and generally prohibited the state and its political subdivisions from discriminating against, or granting preferential treatment to, individuals or groups on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting. The provision applied broadly to state agencies, local governments, public university systems, community colleges, school districts, and other governmental bodies. Before Proposition 209, California public institutions operated a variety of affirmative-action programs. These included initiatives intended to expand opportunities for women and minority-owned businesses in public contracting, increase representation in public employment, and support diversity in higher education. Proposition 209 ended or restricted many such programs, although public institutions continued to use approaches based on characteristics not expressly covered by the ban. Universities, for example, developed outreach and admissions policies that considered socioeconomic circumstances, geography, educational context, parental education, and first-generation status. The constitutional debate was also shaped by federal equal-protection law. Federal law permitted some consideration of race in university admissions under certain conditions, while prohibiting quotas and rigid point systems. California’s constitutional prohibition was more restrictive for the state’s public institutions. Legislative attempts to modify or repeal it followed. Senate Constitutional Amendment No. 5 in 2014 proposed a related change but was shelved amid opposition. In 2011, Senate Bill 185 sought to permit affirmative action in public higher education but was vetoed by Governor Jerry Brown because of concerns about conflict with Proposition 209. The 2019 proposal was introduced as Assembly Constitutional Amendment No. 5 by Shirley Weber, Reginald Jones-Sawyer, and Timothy Grayson. It was considered during a period of renewed national attention to racial inequality and discrimination. The legislature approved ACA 5 in June 2020, largely along party lines, with the Assembly voting 60–14 on June 10 and the Senate voting 30–10 on June 24. The measure was then designated Proposition 16 for the November 3 general election. Proposition 16 would have repealed Section 31 of Article I rather than creating a detailed replacement affirmative-action program. Its effect would have been to restore authority for state and local institutions to consider race, sex, color, ethnicity, or national origin in public employment, education, and contracting decisions, subject to constitutional and statutory anti-discrimination limits. The Legislative Analyst described the measure as permitting diversity-related considerations in those areas and noted that its fiscal consequences would depend on later policy choices by public institutions. The campaign supporting Proposition 16 was known as the Opportunity for All Coalition, or Yes on Prop 16. It argued that the existing constitutional ban prevented public institutions from addressing structural inequities and building representative workplaces, student bodies, and contractor pools. Prominent supporters included Shirley Weber, Eva Paterson of the Equal Justice Society, Vincent Pan of Chinese for Affirmative Action, and Thomas Saenz of the Mexican American Legal Defense and Educational Fund. The opposition campaign, Californians for Equal Rights, defended Proposition 209 and was associated with Ward Connerly, a leading figure in the 1996 campaign for Proposition 209. The two sides disagreed over whether repeal would promote equal opportunity or authorize preferential treatment. Voters rejected Proposition 16. The final result was approximately 57 percent against and 43 percent in favor. Consequently, California retained its constitutional prohibition on affirmative action in public employment, public education, and public contracting. The defeat also meant that California public universities continued using race-neutral tools to pursue diversity, including socioeconomic and geographic criteria and outreach to first-generation students. The proposition remains part of the broader debate over the effects of Proposition 209. Research and commentary have reached differing conclusions about its effects on university enrollment, graduation, earnings, public contracting costs, and representation. One line of research has argued that the ban reduced enrollment and later outcomes for underrepresented students, while critics have disputed the methodology and interpretation of those findings. In contracting, studies and policy analyses have likewise debated the trade-offs between race-conscious preferences, competition, and representation. Proposition 16 did not resolve these disputes because its proposed constitutional repeal was not adopted.

• 2020

  Legislative approval

  [1]2020 California Proposition 16en.wikipedia.org

  The Assembly passed ACA 5 60–14 on June 10, and the Senate passed it 30–10 on June 24.

• 2020

  Statewide defeat

  [1]2020 California Proposition 16en.wikipedia.org

  Proposition 16 was rejected in the November 3 general election by approximately 57 percent to 43 percent.

• 2019

  ACA 5 introduced

  [1]2020 California Proposition 16en.wikipedia.org

  The measure was introduced in the Assembly on January 18 by Shirley Weber, Reginald Jones-Sawyer, and Timothy Grayson.

• 2014

  Earlier repeal proposal shelved

  [1]2020 California Proposition 16en.wikipedia.org

  California Senate Constitutional Amendment No. 5 proposed a related change but did not proceed to the ballot.

• 2011

  SB 185 vetoed

  [1]2020 California Proposition 16en.wikipedia.org

  A bill that would have permitted affirmative action in public higher education was vetoed after concerns that it conflicted with Proposition 209.

• 1996

  Proposition 209 approved

  [1]2020 California Proposition 16en.wikipedia.org

  California voters approved Proposition 209, adding Article I, Section 31, which restricted affirmative action in public employment, education, and contracting.

A statewide constitutional-policy measure positioned by supporters as a mechanism for diversity and equal opportunity, and by opponents as a repeal of race- and sex-neutral government decision-making rules.

• 2020Opportunity for All / Yes on Proposition 16

  California, United States

  The supporting campaign advocated repeal of Proposition 209 and argued that public institutions needed permission to consider race, sex, ethnicity, and national origin when addressing inequality and promoting diversity. Its listed leaders and supporters included Eva Paterson, Vincent Pan, Thomas Saenz, and Assemblymember Shirley Weber.

  Outcome. The measure failed at the November 2020 election.

  Source
• 2020Californians for Equal Rights / No on Proposition 16

  California, United States

  The opposition campaign argued that Proposition 209 protected equal treatment by preventing government preferences based on race, sex, color, ethnicity, or national origin. Ward Connerly was associated with the campaign.

  Outcome. The campaign prevailed, with voters rejecting Proposition 16.

  Source

• 2020

  Legislature refers Proposition 16 to votersOther

  Background

  The proposed repeal required approval by California voters because it would amend the state constitution.

  Action taken

  The Assembly and Senate passed ACA 5 and placed it on the November 2020 ballot.

  Aftermath

  Voters defeated the measure, preserving Article I, Section 31.

  Source

• 2019

  Introduction of ACA 5Strategy

  Background

  California lawmakers sought to reverse the constitutional restrictions created by Proposition 209 and restore legislative discretion over diversity-related public policies.

  Action taken

  Assembly Members Shirley Weber, Reginald Jones-Sawyer, and Timothy Grayson introduced the constitutional amendment.

  Aftermath

  The measure advanced through the legislature and was later placed before voters as Proposition 16.

  Source

1. 12020 California Proposition 16en.wikipedia.org