In 1996, the state of California made a massive stride towards equality before the law. It amended its constitution to include Article I, Section 31 (better known as Proposition 209), which provides that the State and local governments “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Prop. 209 is a classic expression of the view of abolitionist Frederick Douglass that all individuals, regardless of race, have “a right to liberty, to education, and to an equal chance with all other men in the common race of life and in the pursuit of happiness.” Unfortunately, the ideal of a California unburdened by racial discrimination has been under assault since Prop. 209’s adoption. Those who support the use of race in hiring and education have attempted to repeal Prop. 209 several times, most recently in 2020. They failed every time.
These failures haven’t deterred the opponents of equality under the law. 2023 saw a new attempt to inject the use of racial preferences into California government decisions. Assembly Constitutional Amendment No. 7— introduced by Assemblymember Corey Jackson—is a not-so-subtle attempt to restore racial discrimination back into California government. Instead of simply repealing Prop. 209, ACA 7 allows the state to create programs for “specific groups based on race, color, ethnicity, national origin, or marginalized genders, sexes, or sexual orientations” so long as the programs were “research-based, or research-informed” and the governor approves.
ACA 7 is no mere “exception” to Prop. 209. It drives a freight train through its heart, rendering equality for all Californians a nullity.
First, the allowance of an exception for programs that are “research-based, or research-informed” could enable racial discrimination based on junk science. Data fraud and research dishonesty occur in academia and could just as easily occur in studies commissioned by a government agency. ACA 7 incentivizes discrimination based on slapdash, ideologically motivated research. It wouldn’t be the first time a government agency attempted to use a shoddy study to justify discrimination. Regardless, statistics are no justification for the California government to racially discriminate against its citizens.
The Supreme Court recently explained that race can only be used to remedy a violation of the Constitution. For example, after decades of state-sponsored segregation, it was constitutional for federal courts to order schools integrated. But Proposition 209 already allows for such race-based actions that are necessary to comply with the Constitution. To allow a “statistics-based” discrimination rationale is not only morally bankrupt, but it would violate the US Constitution’s guarantee that every citizen is entitled to “equal protection of the laws.”
Second, ACA 7 effectively enables the governor of California to create exceptions to Prop. 209 on a whim. Prop. 209 exists to protect the people of California from their government—it prohibits “all government instrumentalities” from discriminating.
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ACA 7 would wipe out this protection by enabling future governors, Republican or Democrat, to provide benefits to a preferred racial group—white, black, Asian, or Hispanic—“for purposes of increasing the life expectancy of, improving educational outcomes for, or lifting out of poverty” members of that group. Californians cannot be said to enjoy equal protection of the laws if the governor can unilaterally waive that right with the stroke of a pen.
The California Assembly’s dangerous decision to pass ACA 7 means that it now goes to the Senate. It should die there. No one in California should face racial discrimination simply because the governor decides to favor a particular racial group based on trumped up statistics.
As Frederick Douglass recognized, the principles of equality espoused by the Declaration of Independence are “saving principles.” All Americans should “[s]tand by those principles, be true to them on all occasions, in all places, against all foes and at whatever cost.” California’s leaders should heed those words and reject ACA 7’s assault on the bedrock American principle of equality for all.
Jack Brown is an attorney at Pacific Legal Foundation, a public interest law firm that defends Americans’ liberty against government overreach.