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ACA-5 Fact Checker

Lies from ACA-5 Supporters on Higher Education

  1. Diversity within public educational institutions has been stymied… The University of California has never recovered the same level of diversity that it had before the loss of affirmative action.
  2. Prop. 209: underrepresented group enrollment at the Berkeley and Los Angeles campuses immediately falling by more than 60 percent.
  3. Prop. 209: system wide underrepresented group enrollment falling by at least 12 percent.
  4. Prop. 209: a decreased likelihood of earning a college degree within six years, a decreased likelihood of ever earning a graduate degree.
  5. The Supreme Court of the United States outlined the benefits that arise from diversity.
  6. Federal courts continue to reaffirm the value of diversity in favor of race conscious admissions, as exemplified by United States District Judge Allison D. Burroughs in Harvard v. SFFA.

Facts to Debunk ACA-5 Lies

  1. (Measurable) diversity has improved over the last two decades:
    • UC (9 campuses): 6 Hispanic Serving Institutions (HSI); 4 awarded “Higher Education Excellence in Diversity”; strategic partnerships w. HBCUs.
    • CSU (23 campuses): 40% Hispanic; 21 meet HSI criteria.
  2. URM enrollment at Berkeley and UCLA didn’t suffer btw. 96’ and 19’:
    • Berkeley: white enrollees 29.5%–>21%
    • UCLA: white enrollees 31.2%–>24.8%
  3. URM enrollment at UC increased after 1996: 15% in 1996 à26% in 2019
    • Hispanic admits: 13.6% (5,886) à24% (26,247).
    • Black admits: 3.9% (1,687) à 4.1% (4,406).
    • Asian admits: 31.72% (13,736) à 30.49% (32,826).
  4. URM graduation rates at UC increased:
    • 4-year rate: 31.3% (96’) to 55.1% (14’).
    • 6-year rate: 66.5% (98’) to 75.1% (13’).
  5. Previous Supreme Court rulings dictate that race-conscious college admissions must be narrowly tailored and undergo strict scrutiny to suffice compelling government interests:
    • 1978 UC Regents v. Bakke: ban quotas;
    • 2003 Grutter v. Bollinger: ban racial stereotypes & higher standards.
    • 2006 Fisher II: race as a factor in admissions as a factor of factor of factor.
  6. Burroughs’s ruling on Harvard, only an initial decision in the ongoing case, is biased and self-contradictory: see a detailed critique of the ruling.

Lies from ACA-5 Supporters on Prop-209

  1. It upended California’s equal opportunity programs.
  2. It amended the state constitution to prohibit race- and gender-conscious remedies in public employment, contracting and education. It has impeded California’s continuing interest in supporting the equal participation of women in the workforce and in public works projects, in addressing the historical and present manifestations of gender bias.
  3. It has invalidated a series of Californian laws to eliminate segregation and discrimination.
  4. It has overshadowed landmark civil rights and antidiscrimination laws.

Facts to Debunk ACA-5 Lies

  1. California, the bluest American state, has never stopped its public efforts for equal opportunityà a well-organized equal opportunity bureaucracy:
    • To name a few pertinent state agencies: the Equal Employment Rights and Resolution (EER&R) Office under DOJ; Department of Fair Employment & Housing..
    • On the local level, i.e.: the Orange County Equal Employment Opportunity Access Program and many more.
    • Almost every public institution in California claims to be an equal opportunity employer.
  2. Prop-209 didn’t seek an categorical end to the state’s affirmative action programs. According to Section 31 c& d: bona fide qualifications based on sex which are reasonably necessary are allowed; it is not to violate legal precedents. Instead, this legislation pursues narrow tailoring of such affirmative measures to remedy sufficiently documented discrimination on the basis of race or gender while not creating preferential treatment.
  3. Prop-209 is in line with California laws:
    • State Constitution Article I Sec. 7 (b)
    • State Constitution Article I Sec. 8.
    • California State Education Code (EDC), Article 3 Section 220.
    • Donahoe Higher Education Act, Article 2 Section 66010.2 (C).
    • Coalition to Defend Affirmative Action v. Brown  (2012).
    • Pacific Legal Foundation v. City of San Francisco (2010).
  4. Prop-209 aligns neatly with federal laws/policies and the U.S. Constitution:
    • The 14th Amendment to the U.S. Constitution granting the equal protection of the laws.
    • Title VI of the Civil Rights Act of 1964.

Lies from ACA-5 supporters on Outreach & Women

  1. Prop-209 prohibits California universities from engaging in targeted outreach and extra efforts to matriculate minority students.
  2. Prop-209 bars affirmative action programs to help women.
  3. Prop-209 impeded equal participation of women in workforce and public work projects.

Facts to Debunk ACA-5 Lies

  1. “Prop-209 does not prohibit ‘diversity,’ faculty internship programs, focused outreach, or other EEO efforts:
    • Source: “Legal Opinion 16-04: 16th Advisory on Proposition 209”.
    • Diversity and outreach programs may still operate w/i the legal parameters of Prop 209 if the programs are inclusive of all ethnicities, races and gender.
  2. Prop-209 by no means sought an end to the state’s affirmative action programs:
    • It doesn’t prohibit bona fide qualifications based on sex which are reasonably necessary.
    • It doesn’t invalidate any preexisting court order or consent decree.
  3. Gains for women in workforce diversity:
    • Source: 2008 Berkeley Law Study.
    • Women saw a large increase in public employment in the late 1990s, with a slight dip in the mid 2000s.
    • Women of color (& men of color) saw largest gains in employment rates.

ACA-5 Supporter Lies on Public Employment

  1. Prop-209 led to stark workforce diversity reductions for people of color.
  2. Prop-209 led to increasing disparity in employment opportunities for people of color.

Facts to Debunk ACA-5 Lies

  1. Workforce diversity for people of color in public employment has increased significantly and reflected changes in the working age population:
  • Source: 2008 Berkeley Law Study.
  • Minority civil servants: 38% (70,000) in 90’ to 50% (110,000) in 07’.
  • 2007: first year POC became the majority of CA’s civil service employees.

2. Important within group divergences exist for civil servants’ representation relative to working age population by race:

  • Black civil workers are overrepresented
  • Asian and Native American public workers are sufficiently represented.
  • Latino civil workers have seen declines in representation since 1990.

ACA5 Lies on Public Contracting

  1. California ended its MWBE program due to Prop 209 and only a few MWBEs regained public contracts. Many MWBEs closed and most procurement and subcontracting processes remain effectively closed to them due to Prop 209.
  2. MWBEs have lost $1 billion annually in public contract awards.

Facts to Debunk ACA-5 Lies

  1. The state is allowed to engage in good-faith affirmative action programs to promote MWBEs:
    • Ho-Voltage v. San Jose (2000): while outreach that amount to preferences is banned, outreach programs that promote competitive bidding, bring down public costs, and help avoid discrimination are permissible under Prop 209.
    • Coral Construction v. San Francisco (2010): Prop 209 doesn’t categorically ban race-based affirmative action measures to help MWBE in contracting and subcontracting as required by the federal equal protection clause.
    • Prop 209 permits: race-neutral contracting preferences (support small and micro businesses, local businesses/hiring); inclusive outreach to MWBEs and OBESs; public credit for contracting officers and prime contractors who voluntarily increase MWBE utilization.
  2. The state has saved extra costs associated w. preferential contracting:
    • A peer-reviewed study on CA Dept. of Transportation: saved $64 million ($1+ billion in 2020) from 98’ to 99’ due to Prop 209.
    • “After Proposition 209, the prices on state funded contracts fell by 5.6% relative to federally funded projects, for which preferences still applied.
    • The “$1 billion” losses/yr are not losses, but taxpayer $ saved from preferences.
    • It is nearly impossible to quantify and verify losses to MWBEs with crude numbers with no benchmark or context: MWBEs compared w. themselves from previous years or with other businesses?
    • The certification process for MWBEs raises questions on transparency.

Persistent achievement gaps in K-12 are the root cause of underrepresentation and disparities in higher education

Summary by Wenyuan Wu

In California’s public K-12 school system, achievement gaps has persisted even with sweeping reforms and reallocated resources to help high-needs students (the new school funding formula channels extra state money to needy students). In 2019, according to the California Department of Education, math proficiency levels of black, Latino, American Indian, white and Asian students stand at 20.55%, 28.05%, 26.58%, 54.23%, and 74.37%, respectively. Reading proficiency levels for these groups are at 33.02%, 40.56%, 28.16%, 65.42%, and 76.86%.

Contradicting the resource-based argument on achievement gaps, a Stanford study finds that: among all 8th graders who are economically disadvantaged, 57% of Asian Americans, 31% of whites, 21% of Latinos, 17% of American Indians, and 12% of blacks were able to acquire math proficiency. Among all economically disadvantaged 3rd graders, 55.53% of Asian Americans, 44.74% of whites, 34.3% of Latinos, 28.71% of Latinos, and 26.3% of blacks could achieve reading proficiency. These earlier indicators of disparities then translate into divergent high-school graduation rates: 94% for Asian Americans, 88.4% for whites, 82.1% for Latino, 76.8% for blacks, and 74.8% for American Indians. On the other hand, K-12 educational failures are reflected in varying levels of postsecondary preparedness: in 2019, 74% of Asian Americans, 53.8% of whites, 36.1% of Latinos, 25.9% of American Indians, and 23.7% of blacks are prepared for colleges or professional careers.

Racial Effects of Prop-209: ACA-5’s Lies and Half Truths

In public higher education, underrepresented student groups have seen rising trends in graduation and enrollment following the passage of Proposition 209. In the University of California system, 4-year graduation rates of underrepresented racial minorities (URMs) rose from 31.3% during the 1995-97 period (preceding Prop-209) to 36.6% during 1998-2000, then to 43.3% during 2001-03. In 2014, URMs’ 4-year graduation rate rose to a record high of 55.1%. The 6-year graduation rate has fared even better: 66.5% in 1998 and 75.1% in 2013. Minority admissions at UC exceeded those of 1996 both in absolute numbers and as a percentage of all admits. Latino admissions went from 15.4% (5,744 students) in 1996 to 24% (26,247) in 2019, while black admissions from 3.9% (1,687) to 4.1% (4,406). In 1999, URMs’ enrollment at the UC system stood at a meager 15%, while in 2019 this figure increased to 26%.

At UC, 6 of 9 its campuses are “Hispanic Serving Institutions” (HSI), while 11 of 23 CSU campuses meet HSI criteria. 4 UC campuses were 2015 recipients of Insight into Diversity Magazine’s “Higher Education Excellence in Diversity” awards. In 2012, UC established the UC-HBCU Initiative to boost connections with historically black colleges and universities and funding internships for black graduate students. In addition, UC also boasts its Mathematics, Engineering, Science Achievement (MESA) program to help disadvantaged students develop STEM skills and the Puente Project to improve college-preparatory English skills for Latino students.

The allegation in ACA-5’s text that “since the passage of Proposition 209, diversity within public educational institutions has been stymied” is simply untrue.

Prop 209 and Affirmative Action

Prop. 209 doesn’t categorically ban affirmative action. bona fide qualifications based on sex which are reasonably necessary are allowed; it is not to violate legal precedents. Instead, this legislation pursues narrow tailoring of such affirmative measures to remedy sufficiently documented discrimination on the basis of race or gender while not creating preferential treatment.

ACA5 is about restoring government preferences based on race and sex, thereby legalizing discrimination. Proponents are falsely branding it as an “affirmative action” measure. But in reality it violates the original definition of affirmative action. When President Kennedy and President Johnson signed their executive orders to establish affirmative action policies, the exact words are: “Take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin.”