California’s legislature seemingly just can’t help itself.

The state bans racial discrimination (most clearly, because a citizen led referendum succeeded in amending the state constitution in 1996). The legislature hates that.  They tried to amend the constitution to cut the bar in 2020.  They lost.  They thought about trying again this year.  We confronted them with the illegality of that effort.  They backed down.  But despite the federal constitution and the the fact that this history leaves the state constitution still unalterably opposed, they are on the cusp of passing a set of bills that threaten to impose a state-sponsored racial classification regime and launch a set of programs disqualifying Californians based on their racial classification.

One Big Step Forward

Earlier this year, California Assemblymembers proposed ACA-7.  ACA-7 would’ve amended the state’s constitution to gut Art. I, Sec. 31 of that document.  That’s the section passed into law as Prop. 209 in 1996, which serves as California’s best-known bar on identitarian discrimination.  Along with the Californians for Equal Rights Foundation, we filed the first opposition to ACA-7.

When the Assembly passed it, sending ACA-7 to the California Senate, we reiterated our opposition to the relevant Senate committees.  We stressed the parallels to the proposed outright repeal of Prop. 209 Californians overwhelmingly rejected (as Prop. 16) in 2020.  We warned that Californians would not be fooled by the minor differences between ACA-7 and Prop. 16, that they had already answered this question (repeatedly), and that the legislature should stop harassing voters with the same discriminatory option they had rejected (twice). We asked the legislature to stop trying to make fetch happen.

For ACA-7 to make the state’s November ballot, all necessary Senate committees had to pass it by July 3, 2024.  But July 3 came and went, without any Senate committees even holding a related hearing.

At least briefly– for a moment–there was much rejoicing.  Maybe California legislators had learned something: the public hates race-based discrimination and doesn’t want it back in the state’s law.

Four Small Steps Back

Or maybe not.

In 2020, as they worked to pass Prop. 16 and repeal Prop. 209, the state legislature created a Task Force to Study and Develop Reparation Proposals for African Americans, with a Special Consideration for African Americans Who are Descendants of Persons Enslaved in the United States.  In 2023– the task force produced a gargantuan report exceeding 1,000 pages, proposing various forms of racial reparations.

Those proposals included repealing Prop. 209.  They included far more.

While the Assembly crafted and passed ACA-7, the Senate drafted and passed legislation to accomplish other task force proposals.  These included:

• SB 1403 (to create a “California American Freedmen Affairs Agency” and instruct it, among other things, to create a genealogy office to document and classify the ancestry of Californians in service of identifying “descendants”*),
• SB 1050 (empowering the Agency to investigate historical examples of racially motivated eminent domain abuse to be rectified through transfers of additional compensation to those descended from the effected owners who are descendants**),
• SB1331 (creating a state “Fund for Reparations and Reparative Justice” and authorizing it to take funds from state, local, federal, or private sources to fund task-force-recommended reparations measures), and
• SB 1349 (creating a “Black Serving Institution” designation for state colleges and universities that hit either raw number or percentage quotas for their enrollment of Black students).

Last week, the Assembly committees to which these four bills had been assigned passed each.  As a result, they are now headed to the Assembly floor for consideration.  Apparently, whoever learned enough about Californians’ preferences to quite-kill ACA-7 either didn’t realize how the same preferences applied to the bills or did, but couldn’t stop the Assembly from acting.

Our Letter

In response, we wrote to the California Governor, the Speaker of the California Assembly, the California Office of Legislative Counsel, and the California Office of Legislative Analyst.  You can see our letter, below.

We warn these officials that the bills are either terribly drafted or intentionally wrought to place all state offices under the control of the Agency.  We warn that the bills create an alternative funding mechanism that will gut future legislatures’ appropriations-based oversight of the Agency.  We warn that the bills would openly defy the U.S. Constitution and the (still unamended) California Constitution, through their embrace of racial classifications in the service of racially exclusive programs for a single class of beneficiaries.

We warn this cannot be the right answer.  Not for the state.  Not for its people.  Not for its officials, who hope to seek reelection or to pursue higher office.

We counsel that California should not press forward with its anti-Constitutional identitarian crusade in this sure-to-lose fashion.  We warn that, if it does, groups like ours will assuredly see to it, soon, that the Courts have the chance to block these anti-Constitutional measures from taking effect.

* – SB 1403 defines the term.  It would mean those descended from either people enslaved in America or from other Black people who entered America by 1900.

** – SB 1050 appears to exclude any other Californians from receiving parallel supplemental compensation.  This would mean that, even when their predecessors were racially targeted for an abusive taking, Asian Californians, Native Californians, Hispanic Californians, or Black Californians whose family arrived in America after 1900 would be systematically excluded and, so, out of luck.