In 1996, California became the first of 10 states to pass a ban on affirmative action at its public institutions, outlawing them from considering race or gender when offering people employment, education or contracting opportunities. Twenty-four years later, that legislation is under the spotlight again, forcing Californians to grapple with just how progressive they really want to be.
Proposition 16 ― a measure that made its way on to the California ballot amid a pandemic that largely affects Black and Latinx people and a reckoning against racist police violence ― could reverse that 1996 law, known as Prop 209.
“I started working on this repeal the night Proposition 209 passed,” the campaign’s co-chair, litigator and civil rights activist Eva Paterson, told HuffPost.
The motivation behind Prop 16 is that as soon as California banned its public institutions from using affirmative action ― a policy of including groups of people in spaces that have historically discriminated against them ― women and people of color were immediately pushed out, its proponents say.
“People could no longer say, ‘I don’t see color. We’re post-racial.' People went, ‘No, systemic racism is here.’”
Paterson, president and co-founder of the Equal Justice Society, has helped to do polling on affirmative action in the years since Prop 209 passed. For years, the group didn’t see the numbers it needed to overturn it. But the pandemic’s outsized effect on people of color and the police killing of George Floyd, Paterson believes, helped tip the scales for the first time.
“People could no longer say, ‘I don’t see color. We’re post-racial,’” she said. “People went, ‘No, systemic racism is here.’”
But it’s been a tough fight for the Yes on Prop 16 campaign. Polls earlier this month showed it trailing badly, fighting an uphill battle with conservative white and Asian Americans who believed it would hurt them in university admissions, even though its proponents say no quotas will be established.
The No On Prop 16 campaign is led by Ward Connerly, a former member of the University of California Board of Regents who led the Prop 209 campaign in 1996. He recently praised President Donald Trump as the nation’s first truly “color-blind” president. The campaign’s biggest donation came from an Austin, Texas, group, called Students for Fair Admissions, which gave $50,000.
Justin Phillips, a staff writer at the San Francisco Chronicle, reflected on how disheartening it is to see Prop 16 struggle in a state that prides itself on its liberal values.
“One thing Prop. 16 has done, even before people vote yes or no on it, is reveal California’s true face. It’s not one we should be proud of,” wrote Phillips, who believes himself to be the only Black man working as a full-time food writer at a major daily news publication in the U.S. “California is a place for a dialogue. But in 2020, it doesn’t appear to be a place for action.”
Paterson isn’t too fazed by those polls. She said the campaign always knew it wouldn’t get a majority of support on the measure without helping people see through the confusing ballot language. They’re making big strides doing that in the final weeks of the election, she said, by conducting heavy outreach with Latinx voters in Southern California and highlighting their big endorsements: Sens. Kamala Harris (D-Calif.) and Bernie Sanders (I-Vt.), the Golden State Warriors and other cultural icons in the Black community, from Tracee Ellis Ross to Dwayne Wade. It’s also racked up endorsements from nearly every major newspaper in the state and The New York Times.
With just a few days to go, the tides may be turning enough for Prop 16 to eke out a win. A new poll by David Binder Research found that it’s currently tied at 45% yes and 45% no, with 10% undecided. The campaign also pointed to a new Capitol Weekly poll showing it ahead 53-47.
“[W]e are confident that as voters continue to learn more about how Prop 16 levels the playing field for women and people of color they will continue to come over to our side,” Prop 16 campaign manager Andy Wong said in a statement when the new polling came out.
One of the biggest misconceptions with affirmative action, Paterson said, is that it gives employment or educational opportunities to people who are under-qualified. In reality, she argued, there are discriminatory factors at play that make some candidates simply appear more qualified than others.
White students at well-funded high schools, for example, have more access to Advanced Placement courses than Black students at schools with less funding. Students from both schools could get an A grade in every class, but the students with access to AP courses will have an inflated grade point average because of the way those grades are weighted.
“[W]e are confident that as voters continue to learn more about how Prop 16 levels the playing field for women and people of color they will continue to come over to our side.”
“I was a part of 30 Black students admitted in my class in 1972 at Berkeley Law,” Paterson recalled. “The year after affirmative action was eliminated, there was not one Black student admitted to Berkeley Law. Not one.”
Studies show that the affirmative action ban had little impact on white and Asian American university applicants, who go on to attend selective universities and graduate with good career prospects at the same rates regardless of diversity policies.
While the ban on affirmative action is often discussed in the context of school admissions, it has left its mark elsewhere, too.
Before 1996, the California government used to award nearly a quarter of its public contracts to minority- and women-owned businesses. When Prop 209 disbanded that program, those businesses lost out on around $825 million a year, according to a study from the Equal Justice Society.
People awarding those contracts tend to work with the same people they always work with, who often happen to be white men, Paterson said.
“If you’re not forced to look beyond your comfort zone,” she said, “then people of color and women don’t get in the door.”