Wenyuan Wu: ACA 7 is an arrogant attack on equality under the law in California

Is it amnesia or is it arrogance?

Sacramento Democrats seem to have forgotten that Proposition 16, the 2020 ballot measure to repeal California’s constitutional ban on race-based affirmative action, failed epically.

In spite of a staggering $31 million war chest and high-profile endorsements for the Yes on 16 campaign, over 9.65 million California voters of diverse backgrounds and differing political views resolutely rejected the idea that discrimination is needed to combat disparities. Percentage-wise, the measure was rejected 42.8% to 57.8%.

Voters stood by Proposition 209, which was passed by 55.5% of California voters in 1996, enshrining in the state constitution this common sense defense of civil rights: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

But the overwhelming public will in support of equal treatment under the law is being ignored in this legislative session. Democratic Assemblymembers Corey Jackson, David Alvarez, Mia Bonta and Akilah Weber introduced Assembly Constitutional Amendment 7, a state constitutional amendment to significantly undermine and compromise Section 31 of Article I of the State Constitution (Prop. 209’s restrictions on the consideration of race in state policy).

While the precious 37 words of the original language of Prop. 209 would not be outright repealed, ACA 7 seeks to add the following exemption:

In other words, the state would be able 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 can prove the intent to improve health, educational or economic outcomes. 

Without striking down Prop. 209, ACA 7 effectively contradicts and overrides California’s constitutional ban on preferential treatment in public employment, public education and government contracting.

Thanks to a Democratic supermajority in the State Legislature, ACA 7 has been in smooth sailing, having passed out of the Assembly Committee on Human Services on June 7  with a 6-to-2 vote and of the Assembly Judiciary Committee on June 13th with a 8-to-3 vote. Against objective evidence, each committee has produced a bill analysis justifying the amendment on account of “negative impacts of Prop 209 on California’s population.”

These supposed justifications are based on cherry-picked arguments.

Supporters of ACA 7 cite a 2020 UC Berkeley study by Zachary Bleemer on affirmative action is cited to prove damages of equal treatment on university enrollment and outcomes for underrepresented minority students. This particular study has been thoroughly debunked by many serious scholars on its scientific rigor, research design, methodologies and basic logic of reasoning.

Proponents’ uncritical reception of a phony, ideology-driven study is in direct conflict with empirical evidence. Admissions of underrepresented minorities to the UC system have actually increased since the passage of Prop. 209. Between 1997 and 2022, African American undergraduate admissions into the University of California system have steadily increased from 1,687 (4%) to 6,399 (5%). The four-year graduation rate for African American students also grew significantly from 35.4% in 1999 to 61.2% in 2017.

The bill analyses from both Assembly committees which approved ACA 7 also contain sweeping generalizations about racial disparities in poverty and health. According to the analysis by the Assembly Judiciary Committee, “Proposition 209 has resulted in significant harms to educational and economic success for marginalized communities.” This type of over-the-top narrative, mistaking correlation as causation, defies nuanced realities.

Wealth gaps and income inequality cannot be captured squarely by racialized rhetoric, provided that Americans of Asian descent have the highest median income of any group in the nation and that the Black immigrant population significantly out-earns the U.S.-born Black household population.

Given intra-group variances in health outcomes such as infant mortality rates and heart disease death rates, one can readily reject the racial inequity thesis and focus on socio-cultural factors to explain disparities. Need-based, race-neutral measures to address inequality, which are perfectly legal under Prop. 209, make more sense than blatant race-based programs.

But perhaps neither amnesia nor arrogance can fully account for the renewed effort to attack equality in California.

California Democrats realize the sheer unpopularity of a blanket repeal of Prop. 209 and they now choose the route of stealth by adding an exemption that is a de facto handicap on the promise of equal treatment.

Notably, ACA 7’s coauthors are Assemblywoman Mia Bonta, wife of California Attorney General Rob Bonta, and Assemblywoman Akilah Weber, daughter of the California Secretary of State Shirley Weber. Bill proponents’ inescapable personal ties with state officials, one of whom enforces the state law and the other oversees the ballot pamphlet process, should be a red flag for conflict of interest and other ethical issues.

Along with their supporters including the California Teachers Association and the Education Trust-West, they are hoping against hope that fire can fight fire this time.

Wenyuan Wu is the executive director of the Californians for Equal Rights Foundation. She previously served in the same capacity for the historic No on 16 Campaign.