ACR Project Expresses Concerns with California’s Newest Batch of Discriminatory Legislative Proposals

If the California Legislature is in session, some member is proposing the unconstitutional favoring of individuals based on ancestry.  This session, that’s again a winning bet (however the people of California must feel about that fact).  Once more, Assemblymembers and Senators have proposed a whole slate of discriminatory bills (and one discriminatory state constitutional amendment).

We’ve submitted letters to both chambers expressing concerns with the legality and constitutionality of a host of those proposals.  You can read those letters, below.

SB 437

SB 437 would task Cal. State with crafting a system to identify and document individuals descended from American slavery (“DOAS“).

SB 518

SB 518 would create a Bureau for Descendants of American Slavery in the state’s Department of Justice.  It would remove that Bureau from political oversight.  It would authorize the Bureau to define its own “mission.” And it would assign the Bureau a whole series of specific tasks.  Those tasks would include: (a) administering a class-specific structure for revisiting under-compensated, racially motivated exercises of eminent domain; (b) administering a state-run “Genealogy Division” to record the DOAS-status of all Californians; (c) establishing “alternate criteria” for individuals to qualify for benefits afforded to DOAS, who do not document their DOAS status; (d) administering a “public education campaign regarding the cycle of gentrification, displacement, and exclusion, the connection between redlining and gentrification, and the history of discriminatory urban planning in California); and (e) reviewing any and all past, current, or future proposed laws for “whether those measures have caused, are causing, or may continue to cause harm” of any kind and giving “recommendations to mitigate or eliminate any harm identified.”

AB 7

AB 7 would authorize state colleges and universities to systematically prefer DOAS in admissions.

AB 57

AB 57 would establish a state program to grant home-buying assistance solely to DOAS.

AB 742

AB 742 would prioritize licensure applications submitted by DOAS.

Another Cycle’s ACA 7

Once more, the legislature would seek to shred the protections of Prop. 209.  In 1996, Prop. 209 forbid discrimination in public education, public contracting, and public employment.  In 2020, the legislature asked voters to outright repeal that protection in its entirety.  They refused.  Last cycle (coincidentally, also through an ACA 7), it sought to do the same clandestinely, by adding an “exception” for discrimination approved by the Governor.  Even the California Senate refused.  This time, the tact is slightly different: this ACA 7 would attack only the prohibition on discrimination in public education.  It would rewrite Prop. 209 to allow discrimination everywhere in K-12 and higher education except in college admissions.  Out of feigned modest fidelity to the Supreme Court’s Harvard opinion, it would leave that prohibition (alone in the world of public education) standing.

Deficiencies of the Proposals

As you can read in the letters’ detailed analysis, all  these proposals reject individualized assessments to allocate benefits and burdens based on ancestry.

While there are additional issues with specific items, we warn that this should leave almost all the proposals illegal for three shared reasons.  They should violate the 14th Amendment’s Equal Protection Clause as intentional discrimination.  To the extent they didn’t, they should violate the 14th Amendment’s Equal Protection Clause as intentional racial discrimination by proxy.  And even if neither of these arguments prevailed, the proposals would seemingly still violate the Civil Rights Act of 1964 as national-origin discrimination.

The sole proposal we addressed with entirely different legal flaws (this cycle’s ACA 7) stands on no stronger ground.  It misreads Harvard as establishing a new one-off rule, rather than admitting it to have closed a narrow exception to our broad Constitutional prohibition against race-based discrimination.  Accordingly, this cycle’s ACA 7 seeks to authorize discrimination already clearly unconstitutional before the Supreme Court ended that exception in Harvard.  All the discrimination this ACA 7 would authorize would remain clearly banned by the U.S. Constitution after its enactment.  The state cannot re-authorize the discrimination at issue, whatever the legislature would prefer.  All it could possibly do through passage would be to plant the state’s flag on the wrong side of history and morality.

The California Assembly and Senate should deeply consider these points, before committing the state to pursuing any of the proposed matters.