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GOP, conservative watchdogs sound alarm on new effort to circumvent California’s longstanding ban on affirmative action
Although the California constitution forbids racial preferences, and Golden State voters have twice decided to uphold that ban, Democrat lawmakers are working to carve out exceptions to that law.
A proposed constitutional amendment making its way through the Sacramento statehouse would allow race-based preferences to be considered for financial aid decisions in education, prompting Republican and conservative watchdogs to sound the alarm.
“By narrowing the ban on discrimination to only ‘higher education enrollment,’ ACA-7 leaves all other aspects of the educational experience vulnerable to preferential treatment. This could include student grants, specialized programs, and even classroom resources,” Tony Guan, a civil rights activist in California, posted on X on March 18.
Maimon Schwarzschild, a constitutional law professor at the University of San Diego, told The College Fix the proposal runs afoul of Students for Fair Admissions, the 2023 Supreme Court decision that banned affirmative action.
“Giving financial aid to college students of one race in the form of outright grants, while students of other races — even financially needier — would be saddled with loans, would be almost laughably impossible to justify,” Schwarzschild said.
The Wall Street Journal’s William McGurn recently pointed out the proposal’s “elevation of race over need could thus have the perverse result of a more generous financial-aid package going to a wealthy black student than to a poor Asian student.”
“We know how this game ends: in bitterness and resentment. Even some who favor preferences in admissions would likely balk at a better package of aid simply because of an applicant’s race,” he wrote in a March 16 piece.
The Pacific Legal Foundation argues the measure also fails scrutiny under the Fourteenth Amendment’s equal protection clauses.
″While ACA 7 preserves the prohibition on discrimination in higher education enrollment, it will permit the government to discriminate in all aspects of K-12 education and all other aspects pertaining to colleges and universities,” the group said in a statement to California lawmakers.
Yet the California state Assembly recently approved the measure, Assembly Constitutional Amendment 7, which aims to narrow the scope of Proposition 209, the famous 1996 voter initiative banning racial and gender preferences.
It passed Feb. 19 with a 54-14 margin along party lines, and now heads to the state Senate, where it could set the stage for a statewide ballot measure this November.
Proposition 209, hailed as the “California Civil Rights Initiative” when passed in 1996, forbids preferential treatment on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting.
In 2020, California voters overwhelmingly rejected a Democrat-led effort to overturn Prop. 209, and a 2024 effort by Democrat lawmakers to carve out exceptions to Prop. 209 did not make it beyond committee.
The new ACA-7, introduced by Democratic Assemblymember Corey Jackson, would allow “public agencies to use state funds for culturally specific programs aimed at improving life expectancy, educational attainment and economic opportunity in communities experiencing documented disparities,” California Black Media reported.
The amendment would limit Prop. 209 to only prohibiting race-based preferences in admissions, allowing the state to fund other grants and programs to boost students of color.
“Prop. 209 is preventing people from living longer lives, healthier lives and with more dignity and humanity,” Jackson told the outlet.
Jackson argued the measure aligns with the Supreme Court’s decision in SFFA by allowing race-based funding preferences in areas like teacher training, curriculum development, and grants — just not admissions.
But Schwarzschild said ACA-7, if approved, will fail at the Supreme Court.
“If ACA 7 were passed, any decision by the State of California to re-introduce racial or ethnic preferences on questions like college financial aid or primary or secondary public education would undoubtedly be challenged in the courts, would very predictably reach the Supreme Court, and would almost certainly be struck down, for the very same reasons that Harvard’s racial admissions preferences were struck down,” he told The Fix.
Gail Heriot, a University of San Diego professor of law emerita and co-chair of successful campaigns to uphold Prop. 209, said she is confident that ACA-7 will be defeated should it reach the ballot box.
“We beat the last ballot measure designed to gut Proposition 209 with over 57% of the vote even though we were outspent by more than 14 to 1,” Heriot said in an email. “Polls have consistently shown that opposition to race preferences is both strong and unwavering.”
Heriot called ACA-7’s narrow view of SFFA “overly constricted.” She said that while the proposal retains the admissions ban, its justifications for discriminating in other areas invites federal court challenges.
“Any programs or policies implemented under it are likely to be found unconstitutional,” she said.
Education Trust-West, a key supporter, argues the amendment “would roll back part of California’s regressive affirmative action ban such that when [K-12] and higher education leaders make spending and programming decisions, they can consider race in order to help students of color overcome the effects of racism and long-standing underinvestment.”
Representatives for Education Trust-West did not respond to requests for comment.
After fighting to defend Prop. 209 for 30 years, Heriot said she is not surprised by the state’s progressive lawmakers.
“Here in California, the legislators just can’t stop themselves,” she said. “They just keep trying.”
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