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In bid to bring back affirmative action, Calif. Legislature votes to strip discrimination protections from state Constitution

Voters will decide the fate of an affirmative action ban that has been in place for 24 years

Justin Sullivan/Getty Images

California voters will be given the opportunity to repeal the California Civil Rights Initiative, also known as Proposition 209, that amended the state Constitution to prohibit discrimination or preferential treatment of people based on race or sex.

Proposition 209 states: "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."

On Wednesday, the California Senate voted 30-10 in favor of putting the constitutional amendment that reinstates affirmative action up for a vote on the November ballot. The California Senate surpassed the required two-thirds majority. The California State Assembly voted 60-14 to pass Assembly Constitutional Amendment No. 5 on June 10, 2020.

Prominent California Democrats supported repealing the California Civil Rights Initiative, including Sen. Dianne Feinstein, Sen. Kamala Harris, Rep. Ted Lieu, Rep. Eric Swalwell, and Assemblywoman Lorena Gonzalez, who said she cried tears of joy with the possibility to "restore affirmative action in public contracting and education."

"I know about discrimination. I live it every day," Democratic state Sen. Steven Bradford said. "We live it in this building. Quit lying to yourselves and saying race is not a factor. ... The bedrock of who we are in this country is based on race."

ACA 5 was co-authored by Assemblywoman Shirley Weber (D). ACA 5 is attempting to reverse Proposition 209 that was passed in 1996 by 55% of California voters.

Affirmative action detractors brought up the iconic Martin Luther King Jr. quote: "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."

Weber responded to that point by saying, "When he talked about 'I don't want to be judged by the color of my skin but by the content of my character,' that was contained in the 'I Have a Dream Speech.'" That was a dream. That was not reality. That was aspirational."

"The collective actions against inequality and injustice that we've seen around the world represent an urgent call for systemic change," state Sen. Holly Mitchell (D) said. "We must be affirmative in our actions we take to bend the arc towards justice. It's time for a new generation of California's voters to stand up and advance equity."

Los Angeles Mayor Eric Garcetti (D) said earlier this month that the city would embrace affirmative action.

"Our city is hungry for change, and we must knit racial justice and affirmative action into the fabric of our policies, our institutions, and our society," Garcetti said. "With the possible repeal of Proposition 209, we will begin preparing now for affirmative action in City government to open the doors of opportunity to African Americans and anyone too often left out and left behind in our economy. But no matter what happens at the ballot box, my executive directive ensures our City leadership looks at every issue through a lens of racial justice, acts to end structural racism, and brings more Black Angelenos and people of color into the halls of government."

Republican state Sen. Ling Ling Chang, who was born in Taiwan, said, "The problem with ACA 5 is that it takes the position that we must fight discrimination with more discrimination. Preferences for any purpose are anathema to the very process of democracy."

Irvine Republican Assemblyman Steven Choi pointed out that "giving special or preferential treatment to someone based on their race is racism itself, or on their sex is sexism."

"I'm Peter Kuo, an immigrant, a father of three bright students, a proud Californian and a proud Republican, Vice-Chair of the @CAGOP and I am strongly opposed to #ACA5," tweeted Peter Kuo, who is the vice chairman of the California Republican Party. "Admission to all public colleges and universities should be based solely on MERIT."

Prop. 209 was challenged in 2014 by the Senate Constitutional Amendment 5, but was dropped because of lack of support. The Sacramento Bee said SCA 5 fizzled out "after weeks of intense advocacy from Asian Americans who argued that a repeal would hurt their children's prospects for getting into the most competitive public campuses."

Seven other states have banned affirmative action, including Arizona, Florida, Michigan, Nebraska, New Hampshire, Oklahoma, and Washington.

California requires a two-thirds vote in both chambers of the California State Legislature in order to get a constitutional amendment on the state's ballot for a vote by the public. The measure does not require Gov. Gavin Newsom's signature for approval, only a simple majority from voters.

ACA 5 will be on the ballot in the general election on Nov. 3.

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