Decades ago, many of our members came to the United States attracted by the belief that this is the land where “all men are created equal” and her citizens and residents are endowed with certain unalienable rights including the rights to “Life, Liberty, and the pursuit of Happiness.” At that time, we were fortunately given the equal opportunity for education and career advancement, not because of our skin color or race, but because of our merit and character. We are now contributing members in the society, many in the State of California, as hard-working, tax-paying, and law-abiding citizens. We share these values with our children while creating new opportunities and jobs to others.
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Today, our faith is shattered by the passing of Senate Constitution Amendment No. 5 (SCA-5) through the majority voting in the Senate of California. SCA-5 was introduced by Senators Hernandez, Block, De Leon Lara, and Steinberg to amend Section 31 of Article 1 of the California Constitution, which, prior to the SCA-5, recites: The California Constitution prohibit the state from discriminating against, or granting 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.
SCA-5 expressly states that the amendment “would eliminate this prohibition on state discrimination or preference in the operation of public education.” In plain English, if SCA-5 becomes the law, the state government can wield the power to discriminate or grant preference based on factors including race and color in public education. SCA-5 virtually undoes the journey the United States has taken for the past two hundred years in civil rights and throws California back to the age of discrimination. We will be forced to tell our next generation that “sorry kids, although your parents are beneficiaries of equal education due to merits, you will be discriminated in public education, NOT because of the lack of your merit, but because you are born in a WRONG RACE and a WRONG COLOR.” What a shame!
At the onset, SCA-5 is patently repugnant to the Equal Protection Clause of the 14th Amendment of the US constitution and Title VI of the Civil Rights Act of 1964.
The 14th Amendment states: No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The Title VI of the Civil Rights Act states: No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
In expounding the Equal Protection Claus and Title VI, the Supreme Court of the United State held unconstitutional racial quota and racial balancing systems (Reagents of UC v. Bakke (1978), Grutter v. Bollinger (2003), Fisher v. UT Austin (2013)). “Any official action that treats a person differently on account of his race or ethnic origin is inherently suspect,” held the Supreme Court, “classifications are constitutional only if they are narrowly tailored to further compelling governmental interests.” Narrowly tailoring requires that university admission processes ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application. Accordingly, a blank check to the State to authorize governmental discrimination on the basis of race and color in public education without any narrowly tailoring, as expressed in SCA-5, is nothing more than an explicit violation of the Constitution of the United States.
In proposing SCA-5, Senate Hernandez was under the assumption that California has “nearly 20 years of history showing our campuses have become less diverse, and qualified high school graduates are being overlooked and ignored as a result of the failed experiment”, and therefore hoped that “SCA-5 will give voters the opportunity to have a new discussion about how we best ensure our colleges and universities reflecting the diversity of our state.”
For the benefit of doubt, presuming that Hernandez’s “diversity of our state” means the educational benefit of diversity.
The statistics, however, speaks otherwise. The numbers and percentages of underrepresented students that attend the University of California campuses have significantly increased since 1996, the time when the current Section 31 of the state constitution was enacted. The data show that, from 1996 to 2013, in endorsing holistic, race-neutral approaches, African American students’ population increased from 4% to 4.3% out of 6.6% CA population (an increase of 7.5%), Chicanos and Latinos increased from 14.3% to 27.8% out of 38.2% population (an increase of 94.4%), Asian increased from 32% to 35.9% out of 13.9% population (an increase of 12.1%). The only race group with student population decrease is whites (decreased from 41% to 27.9%, out of 39.4% population, a decrease of 32%). Statistics also reveals that 41 percent (74,933) of the enrolled students at post-graduate public schools (180,000 plus) in the 2011-2012 were Pell Grant recipient students (i.e. most often undergraduates with family incomes under $20,000). These data show that the current California Constitution along with racial-neutral approaches endorsed by universities has helped the state to accomplish great student diversity in public higher education, if not the best in the United States.
In light of the above statistics, it is appalling that Senator Hernandez now proposes race and color based SCA-5 to “reflect the diversity of our state”, the objective having been already attained through racial neutral means. The Supreme Court in Fisher v. UT Austin ruled that the use of race is necessary to achieve the educational benefit of diversity only when no workable race-neutral alternatives could produce such diversity, and that, if a nonracial approach could promote the substantial interest, then race may not be considered. Here in California, nonracial holistic approaches have promoted and succeeded in a remarkable diversity in public education. However benign the intent of educational diversity it may sound to be, the means to achieve the intent using racial discrimination under SCA-5 is unconstitutional, as the Court states that “attaining diversity for its own sake is a nonstarter” and “is nothing more than impermissible racial balance.”
The passing of SCA-5 by majority voting to the deprivation of the rights of impacted groups contradicts the fundamental principles of constitutional democracy, upon which the United States is established. SCA-5 should not only express the will of the majority of the Senate but should provide equal protection to the rights of all citizens and residents of CA. The Founding Fathers of this nation long concerned the majority ruling as a troublesome issue: “the great danger in republics is that the majority will not respect the rights of minority” and thus “it is of great importance in a republic, not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part,” said James Madison.
“All…will bear in mind this sacred principle, that though the will of majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression,” proclaimed Thomas Jefferson. That is precisely why the Constitution embodies the Bills of Rights and 14th Amendment to curb the intrusion of majority into the rights of minorities. Ignoring such safeguards, the majority rights lose its meaning as democracy alone does not ensure the equal rights of individuals or minorities.
The majority voting of SCA-5 shall ring a disturbing and warning bell to all people in California, whether as Californians today as members of the minority or tomorrow as members of the majority. The acceptance of SCA-5 in the name of diversity deprives impacted groups of equal rights and shakes the very foundation of this nation.
In vehemently opposing SCA-5, we urge all Californians and especially the legislators who voted for SCA-5 to listen again to the words from this nation’s visionary civil rights leader, Dr. Martin Luther King Jr., in his delivery of the timeless speech on August 28, 1963:
“I have a dream that one day this nation will rise up and live out the true meaning of its creed “We hold these truths to be self-evident: that all men are created equal.
I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
BayHelix Anti-SCA-5 Committee
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