Editor’s Note: Minding the Campus does not typically publish essays of this length. We have made an exception in this case because Gail Heriot’s analysis addresses a consequential and ongoing effort to overturn California’s Proposition 209, an issue on which she has played a central role for decades. With new legislative action underway, her detailed examination of ACA 7 offers timely insight into a policy debate that continues to shape higher education in California.

---

There are a few indications—albeit very tentative ones—that suggest the California Legislature may be getting over its obsession with overturning Proposition 209, the voter initiative that banned state-sponsored preferential policies based on race, sex, or ethnicity. Of course, only time will tell. But even if the Legislature’s Democratic supermajority is getting over that obsession, that doesn’t mean they are abandoning identity politics more generally.

This year is Proposition 209’s 30^th anniversary. It was on Election Day, November 5, 1996, that California voters approved it, thus amending the state constitution to read: 

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.

Voters of that era were unhappy with the number of public contracts directed to minority- and women-owned businesses rather than to the lowest qualified bidder. And they didn’t like the way in which race, sex, and ethnicity were determining who gets government jobs and who doesn’t. Perhaps most of all, they were appalled at the sheer magnitude of preferential treatment given to students from “underrepresented minorities” at state colleges and universities and the effect it was having on higher education. With Proposition 209, they made sure all these practices would be illegal in the Golden State.

Democratic legislators in California have been gunning for Proposition 209 almost from the beginning. Perhaps that’s par for the course in politics, as government officials usually resent limits on their power, including limits on their ability to discriminate by race, sex, or ethnicity. Over the years, they have tried several ways to rid themselves of Proposition 209—from repealing it, in whole or in part, to attempting to “interpret” it into oblivion. So far, none has worked.

Don’t get me wrong. They haven’t stopped yet. Right now, there is a very dangerous attempt that has already passed the State Assembly and is now pending in the Senate—Assembly Constitutional Amendment 7 (ACA 7).

But somehow the thrill seems to be gone. Unlike similar efforts of the last few years, this one got only the bare two-thirds majority it needed in the Assembly—just enough to allow it to limp its way into the Senate. Since then, it has been languishing in the Senate Rules Committee. It’s still alive, so it is too early to celebrate. But for those who oppose preferential treatment based on race, sex, or ethnicity, cautious optimism prevails.

There are reasons for that optimism. The Senate is frequently the place that ill-considered Assembly bills go to die. Indeed, the most recent previous effort to gut Proposition 209 (also called ACA 7, but a very different bill) died there just two years ago. And the current version of ACA 7 is even more deserving of death than the first. No matter what one’s view on preferential treatment for women and minorities, the bill has deep and unfixable problems. 

To begin with, it will require voter approval, and it’s very unlikely to get it. An earlier referendum intended to gut Proposition 209—known as Proposition 16—was easily defeated in 2020. Instead, ACA 7, if placed on the ballot, will simply alienate voters, especially Asian Americans, many of whom worked hard to defeat Proposition 16 and are unhappy to have to keep returning to the issue again and again. (Read Wenyuan Wu’s “California’s ACA 7 Is Affirmative Action With a New Name”). With every election cycle, more Asian Americans have been drifting away from the Democratic Party largely because of its identity politics obsessions.

Moreover, in the unlikely event that the voters do approve ACA 7, any action taken under it will only draw costly federal lawsuits against the state, its public universities, and its school districts—lawsuits they will almost certainly lose. Since the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (2023) (SFFA), the handwriting has been on the wall for the kinds of discriminatory programs ACA 7 purports to authorize. They are now unconstitutional under both the state and federal constitutions. Altering the state constitution to allow such discrimination would be an expensive exercise in futility.

Most striking of all is ACA 7’s atrocious timing.

If the voters do approve it, the Trump Administration, which tends to play hardball on these issues, will have plenty of time left on the clock to initiate a federal funding cutoff pursuant to Title VI of the Civil Rights Act of 1964. Such a financial blow could be catastrophic for California, as it has been for Harvard and Columbia University. And here’s the extra kick: Congresswoman Young Kim has recently introduced legislation designed to ensure that a funding cutoff is exactly what California would get if ACA 7’s passage leads to Title VI violations, as it almost certainly would. 

At least for the time being, it would be downright foolish for even the most left-leaning of California’s legislators to support ACA 7.

If ACA 7 Does Pass, What Would It Do?

But suppose I’m wrong. Suppose the Senate goes full speed ahead, and suppose the voters do approve. What would ACA 7 do?

ACA 7 would essentially delete “public education” from Proposition 209’s coverage. Its key clause in the state constitution would be altered in the following way:

The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, color, sex, ethnicity, or national origin in the operation of public employment, higher education admissions and enrollment, public education, or public contracting.

Proposition 209 would thus no longer apply to K-12 at all, and it would apply at the higher education level only to admissions and enrollment. 

Retaining coverage over “higher education admissions and enrollment” is apparently ACA 7’s way of appearing to submit to the Supreme Court’s decision in SFFA. But it gives that decision a very cramped and disingenuous reading. If SFFA applies to higher education admissions and enrollment, it is overwhelmingly likely to apply to essentially everything that ACA 7 is aimed at authorizing. Before the SFFA decision, many preference supporters used to argue that higher education admissions and enrollment were the only areas in which racial discrimination should be tolerated. They knew that if they asked for more, they would likely get nothing. To turn around now and claim the opposite—that admissions and enrollment are the only areas in which race discrimination is not to be tolerated—makes no sense. The Court’s reasoning in SFFA is clear and broad: Educational institutions must not engage in race discrimination. As Chief Justice Roberts put it in the Court’s opinion, “eliminating racial discrimination means eliminating all of it.”

So exactly what kinds of race discrimination are ACA 7’s supporters trying—probably futilely—to authorize?

At the higher education level, the most obvious thing ACA 7 is aimed at is tuition and financial aid. For decades now, colleges and universities outside California have been using race in determining financial aid packages. Yet it’s hard to come up with a context in which racial preferences are any more indefensible. Students applying for financial aid fill out a Free Application for Federal Student Aid (FAFSA), which tells colleges and universities about the financial standing of each student’s household. There is no need for those schools to guess, based on the student’s race, the extent to which that student has financial needs. 

To be fair, colleges and universities tend not to ignore the FAFSA data completely. But what often happens is that African American students are offered grants in the amount the college or university believes the student needs, while white or Asian students in the same financial position are offered only loans. Obviously, there is a huge difference between grants and loans. 

The University of Oklahoma is currently being sued for exactly this practice, and I am told that more such lawsuits are being contemplated. In the complaint filed in court, Oklahoma’s version of Proposition 209, adopted in 2012, is being cited as one of the reasons the university’s actions are illegal. Here in California, Proposition 209 has been the primary obstacle to the practice.

ACA 7 is intended to remove that obstacle. Indeed, the supporters of ACA 7 would like to take it further. California’s “Task Force to Study and Develop Reparation Proposals for African Americans,” established by the California Legislature in 2020—just after the death of George Floyd—issued its report in 2023. One of its many controversial recommendations was that the University of California and California State University should be tuition-free for descendants of American slaves, regardless of their families’ financial circumstances. An African American son of a real estate developer whose distant ancestor was a slave in Virginia would get free tuition, while the Asian American daughter of a waitress would not. ACA 7’s main sponsor is an enthusiastic supporter of this and many other reparations proposals and sees ACA 7 as helping to pave the way for them. It’s unlikely to be popular with voters generally.

At the K-12 level, ACA 7 would remove Proposition 209 as an obstacle to discrimination by race in admissions to gifted and talented schools. It would also remove Proposition 209’s prohibition on race discrimination in the funding of individual schools by school districts. On the latter issue, the Los Angeles Unified School District is currently in violation of Proposition 209—as well as other laws—for funding schools in part based on the racial composition of their student bodies rather than based on median income, a much more accurate indication of disadvantage. And it’s being sued for that. If ACA 7 passes the Senate and is approved by voters, Proposition 209 would no longer prohibit such funding schemes, though other laws still would.

Likelihood of Passage By the Voters

How likely are the voters to go for ACA 7 if it is placed on the ballot? The answer is that if what’s past is prologue, it’s not likely at all. In 2020, a similar effort failed miserably.

In heady days just after the death of George Floyd, legislators hurriedly put a referendum on the ballot—known as Proposition 16—that would have repealed Proposition 209 outright. 

Initially, many California legislators thought the repeal effort’s success was inevitable. In the years since Proposition 209, California has become a “Majority Minority” state. That alone caused them to believe Proposition 209 was doomed. But there was more. In those tumultuous days, they had bought entirely into the belief that public opinion had undergone a radical shift and that the country was entering a new era of “racial reckoning.” 

To nearly all these legislators, Proposition 16 looked like a train coming downhill. Getting in its way might jeopardize their career ambitions. Even a few Republican legislators—a small minority in the Legislature—were intimidated into voting in favor of holding the referendum. 

Of course, these legislators were violating one of the iron rules of politics—never assume public opinion has changed radically over a short period of time. It usually hasn’t. Decades of polling show that large majorities of Americans oppose race preferences, no matter which race benefits. Pollsters have also found that views on race preferences are unusually firm and resistant to change. For many voters of all races and ethnicities, the issue is a matter of principle. Racial discrimination is wrong.

Part of the problem was that, in June 2020, legislators were cut off from the average voter by COVID-19 lockdowns and caught up in a kind of fever. Proposition 16 got all the glamorous endorsements—Senator and Vice Presidential candidate Kamala Harris, Senator Dianne Feinstein, Governor Gavin Newsom, Attorney General Alex Padilla, Speaker of the U.S. House of Representatives Nancy Pelosi, more than two dozen other members of the U.S. House of Representatives, and the mayors of Los Angeles, Oakland, San Francisco, San Jose, Long Beach, and Stockton. And it wasn’t just politicians. The AFL-CIO, Airbnb, the Anti-Defamation League, Blue Shield of California, the California Democratic Party, Facebook, the Golden State Warriors, Instacart, Kaiser Permanente, Lyft, the Natural Resources Defense Council, the Oakland Athletics, the Sierra Club of California, the San Francisco 49ers, the San Francisco Giants, Uber, United Airlines, Wells Fargo, and Yelp all endorsed Proposition 16. 

California’s major newspapers, as usual, followed the Democratic Party’s lead and also endorsed the repeal. So did the New York Times. Among major California newspapers, only the Orange County Register recommended a “no” vote. The Sacramento Bee even declined to hold a routine editorial board meeting with the NO campaign, so convinced were the editors that the NO side had nothing worthwhile to say to them.

Yet the whole thing went down in flames. Proposition 16 was decisively defeated with 57.23 percent of voters saying NO. 

The remarkable part of it was that the YES campaign outspent the NO campaign by more than 14 to 1. Donations came from Pacific Gas & Electric ($250,000), Kaiser Foundation Health Plan, Inc. ($1,500,000), United Domestic Workers of America Issues PAC ($100,000), Salesforce.com, Inc. ($375,000), SEIU Local 2015 Issues PAC ($50,000), Genentech USA ($100,000), the California Teachers Association Issues PAC ($3,500,000), the American Civil Liberties Union ($1,000,000), Patty Quillin (wife of Nexflix CEO Reed Hastings)($1,500,000), the Open Society Policy Center ($1,000,000) and many more. And they still lost. It turned out money couldn’t buy a vote in favor of discrimination.

It was a David and Goliath moment. The YES side had the money and the endorsements. But the NO side had the volunteers—many of them Asian Americans—who would walk through fire to ensure that voters understood the principle that was at stake. They got the word out. As a result, Proposition 209’s promise of equal treatment under the law was preserved. 

It is hard to imagine that a partial repeal, especially one that deals exclusively with public education, the issue that “No on Proposition 16” voters tended to care most about, will come out differently. Among other reasons, the No side is much better organized today than it was in 2020, and given its success in 2020, it is likely to be much better financed.

Try, Try Again 

Proposition 16’s defeat should have ended the matter, but of course it didn’t. In 2023, Democrats in the California Assembly made a second try in just three years. The bill—called ACA 7, but again, not the same as the current ACA 7—was a trickier version of Proposition 16. 

Instead of authorizing a referendum to repeal Proposition 209 outright, it would have asked the voters to approve a procedure under which the Governor could make an unlimited number of “exceptions” to Proposition 209. Although there was language in the bill that seemed on the surface to limit the kinds of exceptions the Governor could make, in fact, it would have enabled the Governor to make any exception preference supporters could want. 

The bill sailed through the Assembly almost as easily as Proposition 16 had—though this time no Republicans joined in. Democratic Assembly Members were in denial: The voters must have misunderstood our 2020 repeal effort. This time, the response will be different. There will be no substantial opposition.

They were wrong. Once it became obvious that the Assembly was serious about this new repeal effort, the opposition quickly organized. Op-eds were published, letters, emails, and postcard campaigns were undertaken, meetings with senators were conducted, and “No on ACA 7” rallies were held. Social media—Facebook, X (then Twitter), Instagram, and WeChat—were alive with protests against ACA 7. Preparations for a full-scale campaign if the Senate passed the bill were undertaken.

The evidence that Proposition 16 was no fluke had to be carefully presented to senators, and there was plenty of such evidence. It wasn’t just that the defeat of Proposition 16 was consistent with decades of polling evidence showing that Americans oppose preferential treatment based on race, sex, or ethnicity. Shortly after the 2020 election, a poll by Strategies 360 specifically showed that voters understood Proposition 16 perfectly well. 

In that poll, respondents were read Proposition 16 ballot language that said the initiative was “the proposal to permit government decision-making policies to consider race, sex, color, ethnicity, or national origin in order to address diversity by repealing constitutional provision prohibiting such policies.” They were then asked what they thought of the idea, and the response was almost precisely proportional to the November election results. Just 33 percent said it was a good idea. A much larger group—44 percent—called it a bad idea, and 22 percent were not sure. That way, the pollsters knew they had a representative sample of voters. Then came the follow-up. To determine whether voters might well have been confused, the pollsters provided further explanation. If anything, that further explanation was biased in favor of the repeal:

Sometimes the language on the ballot can be confusing, so here is a little more information about Proposition 16.

California law currently bans the use of policies and practices within government that seek to include particular groups based on their race, gender, ethnicity, and national origin in areas in which they were underrepresented in the past such as education and employment. In order to address issues of diversity and representation, Prop 16 would have removed this ban and allowed state and local governments to optionally consider factors like race, gender, ethnicity, and national origin in college admissions, public employment, and public contracting. These programs would still be subject to federal laws, meaning that any quota systems would have remained illegal.

Now that you have a little more information, do you think Proposition 16 was a good idea or a bad idea?

With this extra information—or persuasion—the results were essentially the same: The proposition would still have been overwhelmingly defeated. 

In the face of all of this, the Senate stood down and allowed the first ACA 7 to die. If the senators are wise, they will do the same thing with the current ACA 7.

Beyond the Most Recent ACA 7

It’s always difficult to speculate about the future. But a few thoughts might be useful here.

Even assuming the Senate follows the obvious course of action and decides the risks involved in putting ACA 7 on the ballot are too great, that doesn’t necessarily mean it won’t move at some time in the future to overturn Proposition 209 when, correctly or incorrectly, it decides the risks are no longer as great. 

Another possibility that should be mentioned is that senators will follow up on the strategy they adopted—mostly unsuccessfully—in 2025. That was to pass slavery reparations statutes rather than constitutional amendments that repeal or otherwise neuter Proposition 209. (Read, “San Francisco Approves Reparations Ordinance for Black Residents, Providing Race-Based Education Benefits.”) Unlike the Proposition 209-related constitutional amendments, which require a two-thirds supermajority and the assent of the voters, statutes require only a majority vote and the Governor’s assent. In 2025, therefore, the Legislature was easily able to muster the votes to pass quite a few such bills—despite California never having been a slave state. Here’s a sampling of the bills that were approved by both legislative chambers:

• AB7—Allowing the University of California, California State University, as well as post-secondary schools in general, to grant admissions preferences to descendants of American slaves.
• AB57—Requiring that at least 10 percent of California’s housing assistance fund for first-time buyers be reserved for the descendants of American slaves.
• AB742—Requiring the Department of Consumer Affairs to expedite applications for professional licenses for the descendants of American slaves.

The idea behind this strategy was that these bills were not based explicitly on race; rather, they were based on slave ancestry. Hence, in addition to not needing voter assent, they are not in conflict with either Proposition 209 or the U.S. Constitution—or so their supporters hoped the courts would hold.

This was largely wishful thinking. Can you imagine what would have happened if, after Brown v. the Board of Education (1954), the Topeka board members had turned around and ordered that students be separated not by race, but rather by descent—or lack of descent—from American slaves? The board members would have been held in contempt of court. Not surprisingly, the Supreme Court has already addressed such sleights of hand. In Guinn v. United States (1915), more than a century ago, the Court held that the State of Oklahoma could not circumvent the Constitution’s prohibition on race discrimination in voting by claiming—with “grandfather clauses”—that it is basing its actions on ancestry rather than race.

Governor Gavin Newsom vetoed all three—AB7, AB57, and AB742—as well as a few others. Newsom appears to have understood the legal problems with the Legislature’s reparations strategy. In part, he may have been relying on the analysis by the Assembly Judiciary Committee staff—presumably a staff hired by Democratic members—which had warned that AB7 “walks close to, and arguably may cross, a line drawn in Article I, Section 31 of the California Constitution [Proposition 209].” 

More importantly, as a politician with Presidential ambitions, he understood that signing those bills would have cost him votes. His decision to veto them was part of Newsom’s recent effort to be perceived as a moderate on hot-button issues concerning race, sex, and transgenderism, despite a record that is anything but moderate.

But here’s the problem. Newsom also signed into law an “institution-building” bill, SB 518, which established a Bureau for Descendants of American Slavery. One must assume he intended the legislature to continue pursuing reparations, at least once he is safely out of office and on the campaign trail for the presidency. Otherwise, he has violated another iron rule of politics: never create a government office or agency unless you’re prepared for it to accumulate more power and influence. It’s rare for them not to.

Will we be hearing more from the Legislature about reparations? The answer is probably yes.

Follow Gail Heriot on X.