About SCA 5SCA 5 (Senate Constitutional Amendment No. 5) is a proposed California Constitutional Amendment that would remove all constitutional anti-discrimination protection on public education in California, as provided by Proposition 209. SCA 5 recently passed the Senate and is now pending in the Assembly.
What Is Proposition 209?Prop. 209 (also known as the California Civil Rights Initiative) was modeled after the Civil Rights Act of 1964, a landmark civil rights legislation outlawing discrimination against racial, ethnic, national, and religious minorities, as well as women. One of the key contributors of the 1964 Act was Dr. Martin Luther King, Jr. In that same year, Dr. King received the Nobel Peace Prize.
In 1996, Prop. 209 amended the California Constitution to prohibit the State from considering race, sex, color, ethnicity, or national origin in the areas of public employment, contracting, or education. Prop. 209 (now Section 31 of Article I of the California Constitution) reads:
“(a) The state 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 . . .”Not everyone in California, however, enjoys or even wants an anti-discriminatory society. Prop. 209 has been challenged in courts many times, but was victorious each time. Both the California Supreme Court and the 9th Circuit Court of Appeals have upheld—each twice, over a span of many years—the constitutionality of Prop. 209.1234
- Hi-Voltage Wire Works, Inc. v. City of San Jose, 24 Cal. 4th 537 (Cal. 2000)
- Coral Construction, Inc. v. City and County of San Francisco, 50 Cal. 4th 315 (Cal. 2010)
- Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. Cal. 1997)
- Coalition to Defend Affirmative Action v. Brown, 674 F.3d 1128 (9th Cir. Cal. 2012)
How Will SCA 5 Change Prop. 209?To fully understand SCA 5, some brief history is due. In 2011, the sponsor of SCA 5 introduced an education bill, SB 185. SB 185 would authorize the University of California and the California State University to adopt discriminatory admission standards—based on race, gender, ethnicity, or national origin. That would be outright unconstitutional under Prop. 209. Realizing the potential problem, the sponsor added some safe-harbor language into SB 185:
“… this provision be implemented ... in conformity with Section 31 of Article I of the California Constitution.”This ostensible language did not solve the bill’s unconstitutionality problem, and Governor Jerry Brown vetoed SB 185.
Defeated but not deterred, the same sponsor is now introducing SCA 5, attempting to remove the anti-discrimination safeguard in Prop. 209 and to ultimately reinstate SB 185 or introduce similar bills. The proposed amendments to Prop. 209 are shown below:
As can be seen, the SCA 5 sponsor tries to do it once and for all—completely removing all anti-discrimination protection on any public education system or institute, not just UC or CSU. The bill even provides a “state” definition that does not include UC or the Public School System.
Why Say NO to SCA 5?California is the second most diversified state in the nation, only next to Hawaii.1 This is because California is a popular destination for immigrants from everywhere: Central and South Americas, Asia, Africa, Europe, and nearly every corner of the world (including, of course, the other 49 states). Those energetic, ambitious, and hard-working people come to the Golden State to pursue their American Dream. From Silicon Valley to Hollywood, and from Route 101 to Route 395, they are part of the foundation beneath the largest economy in America.
Hawaii may have better beaches and more expensive gasoline, but new immigrants know their American Dream will be closer to reality in California. When Prop. 209 was passed, California became the first state to realize Dr. King’s famous “dream” of August 28, 1963. Indeed, without the anti-discrimination protection from Prop. 209, new immigrants, with their diverse races and colors, would be at a serious disadvantage when seeking jobs and education, even on this promising land.
Prop. 209 does not merely protect new immigrants—races and colors will not automatically change for the second or third generation of immigrants. The anti-discrimination protection is not limited to immigrant families, either. The law is race-blind and color-blind; it protects everyone.
In 1997, Barbara Grutter, a white resident of Michigan, applied for admission to the University of Michigan Law School. Grutter applied with a 3.8 undergraduate GPA and an LSAT score of 161. She was denied admission. The Law School admitted that it used race as a factor in making admission decisions. Feeling racially discriminated against and out of choice, Grutter sued. Her case found its way into the U.S. Supreme Court. Unfortunately for Grutter, the Court narrowly, by 5-4, sided with the Law School.2 On the very same day, however, the Court ruled in another case, this time by 6-3, that the University of Michigan violated the U.S. Constitution because it automatically granted 20 points, or one-fifth of the points needed, to some undergraduate applicants solely because of their races.3
The U.S. Supreme Court is an interesting court because it has ruled a lot of important cases by 5-4. When a case’s margin is this thin, a single Justice can flip the result. If Grutter were in the Supreme Court today, her case would almost surely have a different ruling and she would probably be able to attend Michigan Law. This is because today’s “swing vote” of the Supreme Court, Justice Anthony Kennedy, actually sided with Grutter in 2003.4
But Grutter does not have to rest her case—or much needed anti-discrimination protection—on who sit on the Supreme Court. If Grutter had been in California in 1997, and in exactly the same situation, she probably would have been admitted into Boalt Hall, the Law School of UC Berkeley—whether she was white or black, the color-blind constitutional protection from Prop. 209 would guarantee that.
Even today, in 2014, when Grutter has likely become a minority student in California,5 the result above will remain unchanged. The anti-discrimination protection provided by Prop. 209 is still race-blind and color-blind today, just as it was in 1997.
But SCA 5 is schemed to change all these and take away the constitutional safeguard on public education in California against all kinds of discrimination. Even worse, SCA 5 is merely the first step towards really bad laws such as SB 185, which will authorize UC and CSU, or any public education institute, to adopt discriminatory admission standards—based on race, gender, color, ethnicity, or national origin.
This will literally clash with the Equal Protection Clause, which reads:
“No State shall … deny to any person within its jurisdiction the equal protection of the laws.”
But as just explained, relying on who are sitting on the U.S. Supreme Court to provide this constitutionally guaranteed equal protection is, at best, opportunistic.
California is home to people of extraordinarily diversified demographic backgrounds.6 Equal access to public education without encountering any discrimination, whether it is based on race or color or anything else, is vitally important. Although this is especially true for immigrant families, to whom good-quality education is arguably the only means for enabling their children to succeed, a constitutional safeguard against any discrimination in public education, as currently provided by Prop. 209, is crucial for the future of all Americans in California, whether they have a European, Latino, African, or Asian background. California cannot afford SCA 5.
- Grutter v. Bollinger, 539 U.S. 306 (2003)
- Gratz v. Bollinger, 539 U.S. 244 (2003)
- The Supreme Court has been sharply divided by ideologies for many years. In many cases, there were four “more conservative” Justices and four “more liberal” Justices. The remaining one Justice often cast a “swing vote,” which would decide the result of a case. When Grutter’s case was heard by the Supreme Court in 2003, Justice Sandra O’Connor was the “swing vote,” while Kennedy was in the “more conservative” group, a 4-member minority. In today’s Supreme Court, however, four Justices—John Roberts, Antonin Scalia, Clarence Thomas, and Samuel Alito—are widely considered to be “more conservative” than Kennedy, who has thus become the new “swing vote.” See http://www.washingtonpost.com/wp-dyn/content/article/2007/05/12/AR2007051201586.html; see also http://www.usatoday.com/story/news/politics/2013/06/27/supreme-court-anthony-kennedy-race-voting-abortion-gay-marriage/2161701.
Why A Snail Mail to Your Assembly Representative?Now you know California cannot afford SCA 5. While its own constitutionality is questionable, if passed, SCA 5 will surely encourage discriminative, unconstitutional laws to be enacted in California.
SCA 5 was passed in the Senate on January 30, 2014, so you must act now and write a postal mail to your Assembly Representative to stop it. Not much time left, so we have prepared a great letter template for you—all you need to do is adding your name and address.
Why a Snail Mail in This Facebook Age?Because you will get what you pay for. A postal mail has these advantages over an email:
- An envelope shows that you are a constituent of the receiving Assembly Member.
- As it takes more resources (time, stamp & effort) to generate a postal mail, the mail should earn more respect from your Assembly Representative.
- It is harder and riskier for a politician to ignore a physical mail from a constituent.
- The visual and psychological impacts of piles of postal mails from your fellow constituents as well as yourself—all arriving within a short period—can be really persuasive.
How to Do It?
Click on the above button, type in information about your Assembly Representative, and find two (2) letter templates in PDF. (Alternatively, browse all templates directly, and select any file to download.)
Download two (2) letter templates in PDF for your Assembly Representative, one to Sacramento and the other to a local district office of the Assembly Representative. Insert your name, your address, and a mailing date into six (6) fillable text boxes of the PDF letter templates like this:
Box 1: Your Name
Boxes 2-4: Your Address (you may only need two boxes)
Box 5: Mailing Date
Box 6: Your Name (this is at the end of the letter, below the letter's signature area)
Print, sign, seal, and mail them (write your name & address clearly on the envelopes).