The Question

Should California and local government entities be allowed to consider diversity as a factor in public employment, education, and contracting decisions?

The Situation

The California and federal constitutions provide equal protection for all people, meaning that people in similar situations must be treated similarly.

Before 1996, California and local entities had policies and programs intended to increase opportunities and representation for people who faced inequalities as a result of their race, sex, color, ethnicity, or national origin, often called “affirmative action” programs. For example, some California public universities considered race and ethnicity as factors when making admissions decisions and offered programs to support the academic achievement of those students. There were also employment and recruitment policies intended to increase the hiring of people of color and women.

In 1996 California voters approved Prop 209, which generally banned the consideration of race, sex, color, ethnicity, or national origin in California public employment, public education, and public contracting. After voters approved Prop 209, the policies and programs described above were discontinued or modified unless they qualified for one of the exceptions. However, California and local entities can still consider race or sex when it is necessary as part of normal operations. For example, California and local entities may consider specified characteristics when it is required to receive federal funding, such as businesses owned by women and people of color.

After 1996 some public entities in California created or modified policies and programs to instead consider characteristics not banned by Prop 209. For example, many of California’s universities provide outreach and support programs for students who are the first in their families to attend college. Also, when making admissions decisions, consideration may be given to where students attended high school and where they live when making admissions decisions. These policies and programs are ways to increase diversity without violating Prop 209.

The Proposal

If approved, Prop 16 would repeal the section of the California Constitution introduced by Prop 209, thus eliminating the ban on the consideration of race, sex, color, ethnicity, or national origin in public education, public employment and public contracting. As a result, state and local entities could establish a wider range of policies and programs so long as they are consistent with federal and state law related to equal protection.

Fiscal Effect

Prop 16 would have no direct fiscal effect on state and local entities because the measure would not require any change to current policies or programs. State and local entities could make any number of decisions about policies and programs that consider race, sex, color, ethnicity, or national origin. Because the specific choices state and local entities would make if voters approved this measure are unknown, the potential fiscal effects are highly uncertain.

Supporters Say

• Yes on Prop 16 means equal opportunities for all Californians.
• Despite living in the most diverse state in the nation, women and people of color currently are still discriminated against.
• We are at a historic moment and need to strengthen California by overturning discrimination in all areas.

Opponents Say

• Approval of Prop 16 would be a step backward, introducing a new form of discrimination to favor politicians’ favorites.
• Let’s not perpetuate the stereotype that minorities and women can’t make it unless they get special preferences.
• Prop 16 will require costly bureaucracies to enforce its provisions, burdening taxpayers.