The ballot box or rule by fiat

Brown weighs bill challenging ban on affirmative action

The measure could put race and gender back into the admissions process at California's public universities 15 years after the state's voters banned affirmative action.

Reporting from Sacramento and Los Angeles -- In the next 10 days, Gov. Jerry Brown must decide whether to sign a bill that could put race and gender back into the admissions process at California's public universities 15 years after the state's voters banned affirmative action.

The proposed law would allow the University of California and California State University systems to "consider" applicants' race, gender and household income to diversify student bodies. The author says he crafted it to avoid conflict with Proposition 209, the ballot measure voters passed in 1996 that prohibited preferential treatment of minority groups by the state.

But Proposition 209's backers contend that the measure now before Brown is a clear attempt to undermine the law and say they will sue to overturn it if the governor signs it.

Brown has argued in court that Proposition 209, which is enshrined in California's Constitution, violates the U.S. Constitution. But the new legislation, which triggered a controversial satirical bake sale by conservative students at UC Berkeley this week, presents the governor with a quandary because he has also long argued that the people's decisions at the ballot box are sacrosanct.

"I believe he disagrees with 209," said Sharon Browne, a principal attorney at the Pacific Legal Center, which has defended the law over the years. "But I would hope that he understands that it's really up to the people to amend 209, not the Legislature."

The bill is not the only hot-button proposal involving higher education that Brown must sign or veto by Oct. 9. He also must decide whether to allow illegal immigrants to qualify for publicly funded scholarships at state universities.

The governor's office declined to comment on the bills but said Brown's views of Proposition 209 are outlined in a legal brief he filed in July, urging a federal court to overturn the measure.

State Sen. Ed Hernandez (D-West Covina), author of the race and gender bill, is a critic of Proposition 209. State data show the number of black and Latino students admitted to the UC system dipped immediately after the initiative's passage, and though such admissions have since risen, Hernandez says they remain too low.

"Minority students are not getting an equal shake in our state, and as an elected official I'm going to do everything in my power to change that," Hernandez said, "even if it means having this uncomfortable discussion."

Former Gov. Arnold Schwarzenegger vetoed a previous version of Hernandez's bill, saying it flouted Proposition 209.

The lawmaker's current measure would permit consideration of factors such as race and gender by public universities to create a "multifactored, diverse student body." It would urge the schools to weigh those factors to the maximum extent permitted by a 2003 U.S. Supreme Court ruling that allowed narrowly tailored affirmative action at the University of Michigan Law School. That decision allowed consideration of race on a case-by-case basis and without quotas.

Hernandez's bill would ban preference for any candidate based on those factors (it is silent on other areas, such as state contracting, that Proposition 209 affected). But the delicate legal dance in the bill, SB 185, has confused some educators, and the universities are reacting cautiously.

"Our current admissions practices are compliant with the Constitution and will continue to comply with the Constitution, whether or not SB 185 is signed into law," said David M. Birnbaum, chief deputy general counsel for the UC system.

Ward Connerly, the former UC regent who was a key architect of Proposition 209, said the Hernandez proposal is a clear attempt to undermine the law's blanket ban on affirmative action. The bill, he contended, attempts "to create an illusion that there is some distinction between considering race and giving a preference."

As governor and in his last job, as attorney general, Brown has cited the U.S. Supreme Court ruling in contending that Proposition 209 should be overturned by the federal courts.

The initiative survived legal challenges after it passed, but Brown has filed papers supporting a 2009 lawsuit by a civil rights group that argues that California should be able to practice the narrow affirmative action that the U.S. Supreme Court upheld in the Michigan case, Grutter vs. Bollinger.

The Supreme Court "found that states have a compelling interest in achieving the benefits that flow from a diverse student body in public universities, in addition to the interest

of remedying the effects of past discrimination," the state's Department of Justice said in the July brief filed in Brown's name with the U.S. 9th Circuit Court of Appeals.

Yvette Felarca, an organizer for the civil rights group whose challenge to Proposition 209 Brown supported, said it was critical that the governor sign SB 185. "If he vetoes it," she said, "it will be a real betrayal."

Hernandez's bill passed the Legislature with little public notice in late August. It won the endorsement of groups including the American Civil Liberties Union, the Mexican American Legal Defense and Education Fund and the University of California Student Assn.

On Tuesday, the latter group, made up of student governments, used phone banks at campuses across California to urge Brown to sign the bill. In protest, conservative students at UC Berkeley held a mock bake sale with items labeled and priced by race and gender.

The event, and the ensuing counter-protests by supporters of affirmative action, drew international news coverage and thrust SB 185 into the spotlight.

Connerly predicted that Brown would sign the bill because of its support among politicians who represent the growing Latino electorate. "You can't look at this bill without seriously looking at the politics," he said.

Shawn Lewis, president of the Berkeley College Republicans, said he was pleasantly surprised at all the attention the issue has received since his group's bake sale.

"I don't know if Gov. Brown wants this sort of a headache," he said.

Joey Freeman, a UC Berkeley junior from Sherman Oaks and a spokesman for the university's student government, said he hopes the governor signs the bill because it could help diversify his campus.

He acknowledged that the governor is under pressure from both sides.

"It's got to be harder," he said in an interview the day after the protests, "now that this has happened."

One unspoken aim of these actions is to dispirit the voters into saying it doesn't matter if I vote so the technocrat/elites get to rule unopposed.

By considering race and ethnicity do that mean that they will be able to discriminate against Asians?