The killing of George Floyd by Minneapolis police this past spring sparked protests across the country, including throughout the Bay Area. Amidst the marches and emotion of an ongoing national reckoning over systemic racial injustice in the United States, California lawmakers saw an opportunity to harness public opinion in hopes of overturning the state's ban on affirmative action in public education, hiring and contracting.

Assemblywoman Shirley Weber, D-San Diego, who chairs the Legislative Black Caucus, jumped at the chance. This past legislative session she introduced Proposition 16, a constitutional amendment to overturn Proposition 209, the 1996 ballot measure that banned affirmative action in the state.

“California's regressive ban on equal opportunity programs, such as affirmative action, denies women and people of color a level playing field in the workplace and in education," she said.

Affirmative action programs are designed to promote opportunities for certain under-represented groups which may have faced discrimination in the past. The ban passed by California voters prohibited the state from considering race, sex and ethnicity in public college admissions, hiring and contracting.

[pullquote size="medium" align="right" citation="Janelle Scott, UC Berkeley Graduate School of Education"]'It's a hard campaign to convince people that maybe some of our systems ... are actually leaving people out through no fault of their own.'[/pullquote]

Proposition 209 was one of several conservative measures backed by then-Gov. Pete Wilson in the 1990s. Those included Proposition 187, which sought to ban undocumented immigrants from accessing state services. That measure passed, but was later found to be unconstitutional. A third measure, Proposition 227, effectively banned bilingual education in the state. Voters overturned that ban in 2016.

The state Legislature easily approved placing Weber’s amendment ending the affirmative action ban on the November ballot. And what’s now known as Proposition 16 has drawn high-profile supporters, including Sen. Kamala Harris and Gov. Gavin Newsom. It also has a substantial war chest. Advocates have raised more than $16 million while opponents have raised about $1 million.

And yet, recent polls show it struggling, with just about one-third of voters saying they support the measure. The rest are either opposed or undecided.

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Janelle Scott, a professor in UC Berkeley’s Graduate School of Education, said one of the reasons Proposition 16 is struggling is because Californians have gotten used to living with an affirmative action ban for so long.

“I think it's a hard campaign to convince people that maybe some of our systems or processes are actually leaving people out through no fault of their own," Scott said.

On the other hand, the recent college admission scandals demonstrate that some wealthy students get their own kind of preferential treatment.

As Scott notes, a recent state audit of the UC system singled out Berkeley for improperly admitting 55 students who were connected to the UC Regents, major donors or staff.

“There's been a different kind of affirmative action in place for wealthy people," she said, "and, really, maybe some internal reckoning about people who have had access to preferential admissions through their wealth or political or social connection.”

There are conflicting studies, but a recent study commissioned by the University of California Office of the President found long-lasting effects from the affirmative action ban, including "[causing] UC’s 10,000 annual underrepresented minority (URM) freshman applicants to cascade into lower-quality public and private universities" from 1994-2002.

But Gail Heriot, a law professor at the private University of San Diego who works with the No on 16 campaign, dismisses that study. She points out much of the data used is not publicly available. She said race should not be a factor in college admissions.

“Standards can vary from school to school," she said. "Some schools may look for pure academic talent. Other schools may take into consideration athletic talent, entrepreneurial talent, leadership talent. All of these things. Just not race.”

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Backers of Proposition 16 know they have a tough road ahead.

Yes on 16 Campaign Consultant Nicole Derse said the measure can be confusing since it’s asking voters to overturn the 24-year-old proposition that initially enacted the ban (a "yes" vote on Proposition 16 is a rejection of the state's ban on affirmative action).

“But our own internal polling shows that once voters learn what Prop. 16 is, once they understand that it's a step to take action around systemic racism and gender discrimination, and to take action in state education, contracting and jobs and promotions, they come our way," she said.

With the presidential election, a pandemic and 11 other statewide measures on the ballot, getting voters' attention will be difficult.

Still, supporters of affirmative action are hoping they can capitalize on the moment and break through with voters.

proposition 209proposition 209

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