“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,” reports The College Fix. “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,” says civil-rights activist Tony Guan.
Law professor Maimon Schwarzschild argues that this proposed change to the state constitution to expand affirmative action violates the Supreme Court’s decision in Students for Fair Admissions v. Harvard (SFFA), which largely prohibited 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 argues.
The Wall Street Journal’s William McGurn criticized the proposed amendment, saying its “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 adds.
The Pacific Legal Foundation says the proposed amendment violates the Fourteenth Amendment’s equal protection clause.
″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,” Pacific Legal Foundation told California legislators.
Yet as The College Fix notes,
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 claims.
Jackson claims 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 the Supreme Court’s SFFA decision applied a “strict scrutiny” standard that applies to all racial classifications, not just college admissions.
Schwarzschild believes that ACA-7, even if it passes California’s legislature, 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 predicts.
Gail Heriot, a retired University of San Diego professor of law and the chairwoman of successful campaigns to uphold Prop. 209, thinks ACA-7 will be defeated by voters if it ends up on the ballot.
“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 observes. “Polls have consistently shown that opposition to race preferences is both strong and unwavering.”
Heriot says ACA-7’s extremely narrow view of the Supreme Court’s SFFA decision is “overly constricted.” She noted that while the proposed amendment keeps the ban on discrimination in admissions, its justifications for discriminating in other areas echo those already rejected by various federal courts. “Any programs or policies implemented under it are likely to be found unconstitutional,” she predicts.
