Proposition 16 would bring affirmative action back to California. Here’s how it works

California voters next month will decide whether to bring back affirmative policies in hiring and university admissions through a proposition that would repeal the state’s ban on race and gender preferences.

Proposition 16, placed on the ballot by the Legislature after a wave of protests against police brutality last summer, seeks to provide opportunities for minorities and women.

It would repeal the 1996 ballot initiative that bars the state from discriminating against or granting preferential treatment to any person or group based on race, sex, ethnicity or nationality.

The measure is trailing badly in public polls, but advocates are mounting a late campaign for the initiative and are outspending opponents.

“I think people don’t understand,” said Assemblywoman Lorena Gonzalez, D-San Diego, who supports the ballot initiative. “People of color are afraid of this because they’re not sure if it’s government doing something to keep them down.”

Here are five things to know about affirmative action if you’re deciding how to vote.

What is affirmative action?

Affirmative action is a practice that gives preferential treatment to someone based on their race or gender in hiring or college admissions decisions, particularly for groups who historically have faced discrimination.

Affirmative action does not lead to hiring or admission quotas. A 1978 Supreme Court decision in a case filed against the University of California bars explicit hiring and admissions quotas.

California allowed affirmative considerations until 1996, when voters passed Proposition 209 to prohibit the practice.

If Proposition 209 is repealed, advocates say state government agencies and schools will be able to create recruiting and programs to target women and people of color and help boost their numbers in the workforce.

Why now?

Assemblywoman Shirley Weber, D-San Diego, introduced the constitutional amendment to reinstate affirmative action in 2019, but it did not gain much traction until the summer of 2020.

In May, George Floyd, a 46-year-old Black man, died after a white Minneapolis police officer knelt on his neck for more than eight minutes. Video footage of Floyd’s death ignited months of protests across the nation.

The protests also led to a larger interest among lawmakers to address racism, according to Sen. Maria Elena Durazo, D-Los Angeles.

“It has raised the stature and the importance and the urgency to a much higher level,” Durazo said. “It’s so wrong and in your face. You can’t avoid it. You have to pay attention to it.”

Less than a month later, the proposed amendment passed the state Legislature, securing enough votes to be placed on the November ballot.

Who wants affirmative action, and who’s fighting it?

Supporters of the initiative argue the ballot initiative would create equal footing among people of color and increase racial and gender representation in higher education and in the workforce. The California Latino Legislative Caucus, the California Legislative Black Caucus and the California Asian & Pacific Islander Legislative Caucus have expressed support for repealing Proposition 209.

The Yes on 16 campaign has raised about $12 million, between January and September, according to campaign finance records.

A group of organizations that opposes the ballot initiative includes the California Republican Party, Asian American Coalition for Education and the Students for Fair Admissions, which sued Harvard University after claiming it discriminated against Asian American students to accept Latino and Black students.

Those groups argue affirmative action would increase discrimination and that diverse communities in California have already made strides in representation since its ban. In July, for instance, the University of California system announced a record number of incoming Latino freshmen admitted to the fall 2020 semester, surpassing Asian American students for the first time.

One organization known as Californians for Equal Rights, led by former University of California Regent Ward Connerly, calls affirmative action “divisive and discriminatory.”

“Its actual implementation will put a political band-aid over deeper socioeconomic challenges at best, and violate a series of federal and state laws,” according to Californians for Equal Rights’ website.

The No on 16 campaign raised about $1 million as of September, according to campaign finance records.

How did Prop. 209 affect Black and Latino students?

Banning affirmative action had a negative impact on Latino and Black students by lowering their enrollment numbers in California’s public universities, according to an August study from UC Berkeley’s Center for the Study of Higher Education.

The total of Latino and Black students enrolled at the University of California declined by about 800 students a year after the ban took effect in 1998, the study shows.

“Banning affirmative action leads to large relative educational and labor market declines for (under-represented minority) university applicants,” according to the study.

What does the Supreme Court say?

The Supreme Court last addressed affirmative action in 2016 when it heard a case filed by a white woman who was denied admission to the University of Texas.

As part of its admissions process, the university automatically accepts the top 10% of students of their high school class in Texas. For other students, the university considers other factors, including an applicant’s race.

In a 4-3 decision, the Supreme Court upheld the university’s policy allowing race to be considered in admissions.

“Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission,” Justice Anthony M. Kennedy wrote in the opinion of the court. “But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

Justice Samuel A. Alito, Jr. argued the university’s admissions program cannot satisfy strict scrutiny.

The university “says that the program furthers its interest in the educational benefits of diversity, but it has failed to define that interest with any clarity or to demonstrate that its program is narrowly tailored to achieve that or any other particular interest,” Alito wrote in his dissent.

This story was changed Oct. 17 to correct the name of former U.S. Supreme Court Justice Anthony M. Kennedy.

This story was originally published October 17, 2020 at 5:00 AM.