Sneaking Past SCOTUS: California Dems Attempt Affirmative Action Workaround

(Associated Press)
August 31, 2023

California Democrats are trying to carve out an exception to the state’s voter-approved constitutional ban on affirmative action. Lawyers say it could make California the target of endless litigation.

The proposal, which is poised for a final legislative hearing on Friday, would create a ballot initiative for 2024, asking voters to approve a measure to allow certain public programs to target people based on their race, color, ethnicity, "marginalized genders," sex, or sexual orientation. It would hit the ballot just four years after Californians soundly rejected a 2020 initiative to revive affirmative action in the state, despite liberal groups investing almost $20 million to sway voters in its favor.

Even if the proposal could weather the costly ballot initiative process, lawyers say it likely wouldn’t stand up in court in light of the Supreme Court’s June ruling that banned colleges and universities from discriminating against students based on race for admissions—a decision that also curtailed race-based policymaking. It could likewise violate the U.S. and California constitutions’ guarantee of equal protection for all people under the law.

"The state would in effect be putting a target on its back for litigation," said Alison Somin, a legal fellow for the Pacific Legal Foundation.

The measure, authored by Assemblyman Corey Jackson (D.) and co-authored by the California attorney general’s wife, Mia Bonta (D.), tries to find a workaround to California’s affirmative action ban, which voters first approved in 1996. According to the bill’s analysis, its purpose is to "mitigate the impacts" of that ban by allowing some carve-outs for programs aimed at raising life expectancy, improving academic results, or eliminating poverty in certain demographics. These programs would have to be "research-based," "research-informed," or "culturally specific," and their funding would be up to the governor.

Jackson did not respond to a request for comment.

Devon Westhill, president and general counsel for the Center for Equal Opportunity, sees these qualifiers as an attempt to meet the Supreme Court’s mandate that institutions must have very specific justifications to make race-based decisions. But he doesn’t think the bill passes muster.

"California would have to hurdle what is almost a death sentence" of court scrutiny, Westhill said. "They would have to meet a very strict test."

The latest legislative analysis of the bill backs his argument. Since the June Supreme Court ruling, the measure "is more likely to have a difficult time withstanding scrutiny if challenged in federal court," a consultant for the state appropriations committee wrote this week.