Affirmative action in California

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On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President & Fellows of Harvard and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions. This article does not receive scheduled updates. If you have any questions or comments, contact us.

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Affirmative action in California refers to the steps taken by employers and universities in California to increase the proportions of historically disadvantaged minority groups at those institutions. Historically, affirmative action nationwide has taken many different forms, such as strict quotas, extra outreach efforts, and racial and gender preferences. However, racial quotas in university admissions were banned in a 1978 United States Supreme Court case, Regents of the University of California v. Bakke.

On June 29, 2023, the Supreme Court reversed lower court decisions in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, effectively ending the use of affirmative action in college admissions.

As of March 2015, 109 out of 577 public four-year universities across the country reported that they considered race in admissions. This practice has been banned in eight states. Meanwhile, 28 states require affirmative action plans in either public employment or apprenticeships. Affirmative action programs that grant racial preferences have come under scrutiny in the courts for potentially violating the Equal Protection Clause of the Fourteenth Amendment and Title VII of the Civil Rights Act.

The following information details the use of affirmative action in universities and employment in California, as well as notable court cases originating in the state.

HIGHLIGHTS

California is one of eight states that have banned the consideration of race in university admissions and public employment.

The effects of affirmative action policies are contested. Proponents argue that affirmative action diversifies selective institutions and provides more opportunities to minorities. Opponents argue that implementing policies that favor some groups requires discrimination against others and that these policies may harm individuals they are meant to help.

Background

The first reference to affirmative action was made by President John F. Kennedy (D) in 1961 in an executive order directing government contractors to take "affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin." While there had previously been efforts by the federal government to end racial discrimination, the order marked the first instance of an active approach to promoting equal opportunity.

Lyndon Johnson signing the Civil Rights Act, July 2, 1964

As the Civil Rights Movement grew, the federal government took on an increasing role in preventing discrimination and bolstering minority numbers in workplaces and universities. President Lyndon Johnson (D) signed the Civil Rights Act of 1964, a landmark piece of legislation that prohibited discrimination against any individual based on race, color, religion, sex, or national origin. However, some still felt that preventing discrimination was not enough, so President Johnson issued an executive order that created the means to enforce affirmative action policies for the first time. Of their own initiative, many colleges and universities nationwide also adopted affirmative action policies to increase minority enrollment.

The use of affirmative action programs was initially intended to be temporary. However, over time the goals of affirmative action policies shifted from equality of opportunity to the achievement of equal representation and outcomes for minorities at all levels of society, a more ambiguous target. Furthermore, lawsuits have been brought against institutions utilizing affirmative action policies, citing violations of the Equal Protection Clause of the Fourteenth Amendment and Titles VI and VII of the Civil Rights Act. In Regents of the University of California v. Bakke, the Supreme Court ruled that promoting diversity, rather than compensating for historical injustices, is the constitutional goal of affirmative action. In its 2013 ruling on affirmative action in Fisher v. University of Texas, the court also placed the burden on universities to prove that no viable race-neutral alternatives exist when they use racial preferences in admissions to increase diversity.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, the Supreme Court effectively ended race-based considerations in college admissions in a June 29, 2023, decision. The ruling explicitly allowed national service academies to continue considering race as a factor in admissions for reasons of national security.

Proposition 209

Proposition 209 appeared on the ballot in the November 5, 1996, election. The question was referred to the ballot as a citizen initiated constitutional amendment, proposing to ban preferential treatment and discrimination in public education, employment and contracting. Voters approved the amendment by over 850,000 votes, making California the first state to enact such a measure. The approved ballot measure added a new section to California's state constitution, Section 31 of Article I.

In 2020, voters decided Proposition 16, which would repeal Proposition 209.

Key terms

The following terms are helpful in understanding affirmative action policy:

• Discrimination refers to the unequal treatment of some individuals or groups based on federally-protected traits, such as age, race/ethnicity and gender.
• Preferential treatment occurs when an applicant is more likely to be selected than another applicant with similar or better qualifications due to other factors, such as race and ethnicity.
• Reverse discrimination is, according to Dictionary.com, unequal treatment or discrimination based on protected traits of "members of majority groups resulting from preferential policies" favoring historically disadvantaged groups, with the intent of remedying past societal discrimination.
• Equal employment opportunity is a commitment employers make to refrain from employment practices that are discriminatory, either directly (disparate treatment) or indirectly (disparate impact). According to Study.com, an equal employment opportunity policy is intended to ensure that "certain classes of people who have been discriminated against in the past are not subjected to adverse treatment" based on protected traits.
• Diversity means the representation of individuals of a variety of backgrounds in terms of characteristics such as national origin, race and ethnicity, gender and socioeconomic status.
• The mismatch effect refers to the theory that when an elite school extends a large preference to a student due to his race, athletic ability or connection to alumni, that student is less prepared for the rigor of the classes and suffers academically, though that student would perhaps thrive at a somewhat less elite school.
• Racial quotas are hiring or admissions policies requiring that a specified number or percentage of minority group members be hired or admitted. In 1978, the United States Supreme Court outlawed the use of strict racial quotas.
• Ratchet effect/cascade effect refers to a phenomenon in which actors do not have an incentive to improve a situation even if they easily could.

University admissions

See also: Higher education in California

Affirmative action in university admissions is a separate matter from affirmative action in employment that operates under different rules and regulations. Federal law requires government contractors and other departments and agencies receiving federal funding to develop and implement affirmative action plans for the hiring process. Public colleges and universities are considered federal contractors and must utilize affirmative action in their employment practices. However, many private colleges and universities across the country have also implemented similar measures in their admissions processes. These actions are typically voluntary, although a handful of states have adopted rules that require state universities to take affirmative action in admissions. Federal law and regulations prohibit quotas and discrimination based on race, religion, and sex. Moreover, hiring decisions cannot be based on race, religion, and sex.

Affirmative action admissions programs were undertaken by public and private universities alike, beginning in the late 1960s and 1970s. Some universities initially established quotas in order to achieve a demographically diverse student body; these quotas were outlawed by the United States Supreme Court in Regents of the University of California v. Bakke in 1978. Affirmative action in college admissions can refer to racial preferences. A preference occurs when a group of applicants is more likely to be admitted than other applicants with similar or better qualifications due to other factors, such as race or ethnicity. Preferences are also sometimes extended towards women, athletes, and children of alumni. The use of racial preferences may be related to college selectivity: scholars such as law professor Richard Sander have found that preferences are strongest at elite institutions.

Eight states have enacted laws banning the consideration of race in university admissions. As of March 2015, California was one of these states. In 1996, voters approved Proposition 209, which amended Article I of the California Constitution to prohibit preferential treatment or discrimination in public university admissions. Due to the ban, none of California's 32 public four-year universities reported considering race in admissions, as indicated in the chart below.

Consideration of race at public four-year universities in California
School	Race/Ethnicity is...				School selectivity*
	Very important	Important	Considered	Not considered
California Maritime Academy					N/A
California Polytechnic State University: San Luis Obispo					Very selective
California State Polytechnic University: Pomona					Somewhat selective
California State University: Bakersfield					N/A
California State University: Channel Islands					N/A
California State University: Chico					Somewhat selective
California State University: Dominguez Hills					Less selective
California State University: East Bay					Somewhat selective
California State University: Fresno					Somewhat selective
California State University: Fullerton					Very selective
California State University: Long Beach					Very selective
California State University: Los Angeles					Somewhat selective
California State University: Monterey Bay					Somewhat selective
California State University: Northridge					Somewhat selective
California State University: Sacramento					Open admission
California State University: San Bernardino					Less selective
California State University: San Marcos					Less selective
California State University: Stanislaus					Somewhat selective
Humboldt State University					Less selective
San Diego State University					Very selective
San Francisco State University					Somewhat selective
San Jose State University					Somewhat selective
Sonoma State University					N/A
University of California: Berkeley					Most selective
University of California: Davis					Very selective
University of California: Irvine					Very selective
University of California: Los Angeles					Most selective
University of California: Merced					Somewhat selective
University of California: Riverside					Somewhat selective
University of California: San Diego					N/A
University of California: Santa Barbara					Very selective
University of California: Santa Cruz					Somewhat selective
Sources: The College Board, "Big Future," accessed March 30, 2015. Reproduced with permission. CollegeData, "College 411," accessed March 30, 2015 *Note: This scale of college selectivity comes from The College Board and is measured as follows: Most selective, less than 25 percent admitted; Very selective, 25 percent to 50 percent admitted; Somewhat selective, 50 percent to 75 percent admitted; Less selective, more than 75 percent admitted; Open admission, all or most admitted.

About the data

Information on which colleges consider race in admissions came from individual college profiles provided by two websites that aim to assist students in choosing a college: The College Board and CollegeData. Such information was reported to The College Board by the colleges themselves. Note that schools may have updated their policies since reporting them. To see the data: College Board: Click the link to the college's profile provided in the table below. Click "Applying" on the side menu and scroll down. Listed will be several criteria of admission into the college, separated by importance. If Race/Ethnicity is not listed, it was not reported as considered by the college's admissions officers. CollegeData: Click the link to the college's profile provided in the table below. Scroll down to the section titled "Selection of Students" to see a chart of admission criteria ranked from "Very Important" to "Not Considered." Click for links to school profiles School School profiles School School profiles College Board College Data College Board College Data California Maritime Academy Link Link California Polytechnic State University: San Luis Obispo Link Link California State Polytechnic University: Pomona Link Link California State University: Bakersfield Link Link California State University: Channel Islands Link Link California State University: Chico Link Link California State University: Dominguez Hills Link Link California State University: East Bay Link Link California State University: Fresno Link Link California State University: Fullerton Link Link California State University: Long Beach Link Link California State University: Los Angeles Link Link California State University: Monterey Bay Link Link California State University: Northridge Link Link California State University: Sacramento Link Link California State University: San Bernardino Link Link California State University: San Marcos Link Link California State University: Stanislaus Link Link Humboldt State University Link Link San Diego State University Link Link San Francisco State University Link Link San Jose State University Link Link Sonoma State University Link Link University of California: Berkeley Link Link University of California: Davis Link Link University of California: Irvine Link Link University of California: Los Angeles Link Link University of California: Merced Link Link University of California: Riverside Link Link University of California: San Diego Link Link University of California: Santa Barbara Link Link University of California: Santa Cruz Link Link

Employment

According to Business and Legal Resources, 28 states have passed their own laws requiring the development of plans by state employers or apprenticeship programs to increase the proportions of minorities at a company or institution. Such plans typically contain the following:

• numerical analysis of the percentage of minorities employed versus the percentage in the labor pool,
• identification of areas where there is "underutilization" of minorities, or a discrepancy between the above percentages, and
• "specific practical steps" the employer will take to correct this discrepancy.

In California, Article I, Section 31 of the California Constitution prohibits preferential treatment and discrimination in state employment and contracting. The section was added by Proposition 209 in 1996. The amendment provided for certain exceptions to the ban, including the following:

• Any programs or policies that existed before the effective date of Proposition 209, that do not discriminate or grant preference based on race or sex.
• "Qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting."
• Any programs, policies or actions necessary to maintain eligibility for federal funding.

See law: Article I, Section 31, California Constitution

In addition, California has a nondiscrimination law, which identifies the following as protected traits in addition to those protected by federal law:

“

Race Color National origin Religion Sex (including pregnancy, childbirth, and related medical conditions) Disability: Physical or mental Age (40 and older) Genetic information Marital status Sexual orientation and identity AIDS/HIV Medical condition Political activities or affiliations Military or veteran status Status as a victim of domestic violence, assault, or stalking

”

The state's nondiscrimination law applies to employers with at least five employees and is enforced by the Department of Fair Employment and Housing.

Federal requirements

According to the U.S. Department of Labor, "For federal contractors and subcontractors, affirmative action must be taken by covered employers to recruit and advance qualified minorities, women, persons with disabilities, and covered veterans. Affirmative actions include training programs, outreach efforts, and other positive steps."

The following federal laws may apply to any company that meets certain conditions:

• Employers with at least four employees must adhere to the Immigration Reform and Control Act.
• Employers with at least 15 employees must adhere to Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act.
• Employers with at least 20 employees must adhere to the Age Discrimination in Employment Act.
• Employers with any number of employees must adhere to the Equal Pay Act.

Federal nondiscrimination and affirmative action laws in California are enforced by the Equal Employment Opportunity Commission.

Court cases

Regents of the University of California v. Bakke

In the 1970s, the medical school of the University of California Davis maintained a quota system in its admissions, whereby 16 out of 100 spots were reserved for minorities. These students were selected by a special admissions committee; they did not compete against general admissions for acceptance and did not have to meet the same academic standards. Allen Bakke was a white male who was rejected from the medical school twice, even though his qualifications were higher than minorities admitted through the special admissions committee. He filed a lawsuit against the University of California for discriminating against him on the basis of race in violation of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964.

University of California Davis

The California Supreme Court found in favor of Bakke, ruling that the university's admissions process was a violation of the Equal Protection Clause. The court concluded that the university had not proven that the special admissions committee was the least intrusive method of achieving diversity. The case was appealed to the United States Supreme Court, which affirmed in part the opinion of the lower court in a landmark decision issued in 1978.

However, the court was significantly divided, and there was "no single majority opinion." In its 1996 opinion in Hopwood v. Texas, the Fifth Circuit Court of Appeals wrote of the Supreme Court decision in Bakke:

“

Six Justices filed opinions, none of which garnered more than four votes (including the writer's). The two major opinions--one four-Justice opinion by Justices Brennan, White, Marshall, and Blackmun and one by Justice Stevens in which Chief Justice Burger and Justices Stewart and Rehnquist joined--reflected completely contrary views of the law.

”

Four of the justices found that the university's quota violated Title VI of the Civil Rights Act and ordered the university to accept Bakke. Another four held that race could be considered as one factor among many in admissions decisions. An opinion by Justice Lewis Powell acted as the deciding vote. Powell agreed that the medical school should be ordered to admit Bakke. However, Powell wrote that the racial quotas were instead a violation of the Equal Protection Clause, affirming the ruling of the California Supreme Court. Powell also joined the opinion by the other four justices when he wrote the consideration of race was permissible as one factor among many that could be considered in admissions decisions. He further stated that diversity was the only "compelling state interest" that justified the use of race-based admissions; remedying past discrimination was not a legitimate interest of universities. However, though Powell's opinion acted as the decision of the court, no other justice joined Powell's opinion.

Scholars have noted that the division of the court caused uncertainty regarding the legality and use of affirmative action programs and led to subsequent lawsuits and litigation. For instance, in its opinion in Hopwood v. Texas, the Fifth Circuit Court of Appeals wrote that the lack of a sole consensus in Bakke led it to conclude that the precedent was not binding and that colleges could not consider race in admissions for any reason. In U.S. Court Cases, Revised Edition, a collection of essays on significant court cases, the legacy of Bakke is summarized as having "raised more questions than it answered." For instance, the essay notes, questions have remained regarding what the Constitution means by "equality" and to what extent the state should act to redress past discrimination.

Public opinion

National public opinion polls on affirmative action have yielded mixed results over the past few years. Results found by researchers seem to depend largely on how the question is worded. In particular, support drops considerably when the word "preferences" is included in the question. Supporters of affirmative action are more likely to do so to increase diversity rather than compensate for past injustice.

Opinions also change when the question refers to college admissions specifically, and support and opposition are somewhat divided on racial lines, with black Americans being far more likely to favor affirmative action. In general, support for affirmative action has dropped since its peak in the early 1990s, when a poll by NBC News/Wall Street Journal found that 61 percent of Americans thought that affirmative action policies were still needed, compared to 45 percent in June 2013.

Support

Common arguments stated for supporting affirmative action include the following:

• Diversity is valuable for any workplace or college campus.
• Minority enrollment in college would fall dramatically without affirmative action.
• Affirmative action provides the extra push to disadvantaged students that is needed to succeed.
• By providing minorities with new opportunities, affirmative action may introduce them to other interests they would not have discovered otherwise.
• Affirmative action is necessary to break stereotypes.
• Affirmative action compensates for past injustices.

Opposition

Common reasons stated against affirmative action include:

• Affirmative action policies have caused "reverse discrimination" against whites.
• According to the Equal Protection Clause of the Fourteenth Amendment, affirmative action is unconstitutional.
• Since standards are lowered by preferential treatment, minorities only aim for those lower standards.
• Affirmative action causes a "mismatch effect" of underqualified students, leading to their failure at elite schools.
• Affirmative action is demeaning and condescending to minority achievement.
• It is too difficult to end affirmative action policies after they have been enacted, even when discrimination is no longer an issue.

Agencies

The Equal Employment Opportunity Commission (EEOC) is "responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or employee because of the person's race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information." These federal laws typically apply to workplaces with 15 or more employees. The EEOC operates field offices in 15 districts. California is served primarily by the San Francisco and Los Angeles District Offices. See the table below for further information about EEOC field offices serving California.

EEOC field offices serving California
Office	Location	Website
San Francisco District Office	San Francisco, California	Link
Oakland Local Office	Oakland, California	Link
San Jose Local Office	San Jose, California	Link
Los Angeles District Office	Los Angeles, California	Link
Fresno Local Office	Fresno, California	Link
San Diego Local Office	San Diego, California	Link

In addition, states and localities may have their own anti-discrimination laws. Separate agencies, designated by the EEOC as Fair Employment Practices Agencies, are responsible for enforcing these laws. In California, there are two designated Fair Employment Practices Agencies: the Civil Rights Section of the Office of the Attorney General and the California Department of Fair Employment and Housing. See the table below for further information about these offices.

Fair Employment Practices Agencies in California
Office	Location	Phone number	Website
Civil Rights Section of the Office of the Attorney General	Sacramento, California	(916) 322-3360	Link
California Department of Fair Employment and Housing	Elk Grove, California	(800) 884-1684	Link

Affirmative action and anti-discrimination legislation

The following is a list of recent affirmative action and anti-discrimination bills that have been introduced in or passed by the California state legislature. To learn more about each of these bills, click the bill title. This information is provided by BillTrack50 and LegiScan.

Note: Due to the nature of the sorting process used to generate this list, some results may not be relevant to the topic. If no bills are displayed below, no legislation pertaining to this topic has been introduced in the legislature recently.

Ballot measures

Ballotpedia has covered 3 ballot measures relating to state and local affirmative action policy in California.

1. California Proposition 209, Affirmative Action Initiative (1996)
2. California Proposition 54, Prohibit State Classification Based on Race in Education, Employment, and Contracting Initiative (October 2003)
3. California Proposition 16, Repeal Proposition 209 Affirmative Action Amendment (2020)

See also

• Affirmative action
• Affirmative action ballot measures
• Higher education in California
• Fourteenth Amendment
• Civil Liberties Policy

External links

• Department of Fair Employment and Housing
• Equal Employment Opportunity Commission