Proposition 16 was a failed California ballot proposition that appeared on the November 3, 2020, general election ballot, asking California voters to amend the Constitution of California to repeal Proposition 209 (1996). Proposition 209 amended the state constitution to prohibit government institutions from discriminating or offering prefferential treatment on the basis of race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Therefore, Proposition 209 banned the use of race- and gender-based affirmative action in California's public sector and public university admissions.
The legislatively referred state constitutional amendment was originally introduced as California Assembly Constitutional Amendment No. 5 (ACA 5) by Democratic Assembly Members Weber, Gipson, and Santiago on January 18, 2019. In June 2020, the California State Legislature passed ACA 5 on a mostly party-line vote, voting 60–14 on June 10 in the Assembly and 30–10 on June 24 in the Senate. The measure was defeated 57% to 43%.
Background
Proposition 16 would have repealed 1996 California Proposition 209 which amended the California constitution and prohibits government institutions from considering race, sex, or ethnicity, specifically in the areas of public employment, public contracting, and public education. Before Proposition 209, state and local entities had policies and programs—collectively called "affirmative action"—intended to increase opportunities and representation for people who faced inequalities as a result of their race, sex, color, ethnicity, or national origin. For example, the state had established programs to increase the participation of women-owned and minority-owned businesses in public contracts and set goals for the portion of state contracts that were awarded to those types of businesses.
In 1996, California voters approved Proposition 209, adding a new section to the State Constitution as Section 31 of Article I. The new section generally banned the consideration of race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting in California with limited exceptions. After voters approved Proposition 209, some public entities in California created or modified policies and programs to instead consider characteristics not banned by Proposition 209. For example, many California public universities provide outreach and support programs for students who are first in their family to attend college. Many university campuses also consider where students attended high school and where they live when making admissions decisions. The universities view these policies and programs as ways to increase diversity without violating Proposition 209.
The California and federal constitutions provide all people equal protection, which generally means that people in similar situations are treated similarly under the law. Federal law establishes a right to equal protection and as a result limits how "protected classes" such as race and gender may be used in decision-making. For example, under federal law as of 2020, universities might consider these characteristics as one of several factors when making admission decisions in an effort to make their campuses more diverse. (This was overruled by the Supreme Court of the United States in 2023, guaranteeing the right to all college applicants to not be discriminated against in admissions on account of their race.) To ensure compliance with federal law, these policies and programs must meet certain conditions that limit the consideration of these characteristics. These conditions are intended to prevent discrimination that violates equal protection. State law also has a number of anti-discrimination provisions that are similar to those in federal law. Before Proposition 209, state and local policies and programs that considered race, sex, color, ethnicity, or national origin still had to comply with federal law. Since such discrimination was already illegal based on state law, federal law, and the Equal Protection Clause of the 14th Amendment, Proposition 209 effectively banned affirmative action within these public bodies.
Affirmative action has its origins in Executive Order 10925, which was issued by President John F. Kennedy and required government contractors to "take affirmative action to ensure that applicants are employed, and employees are treated during employment, without regard to their race, creed, color, or national origin." Kennedy's Executive Order was superseded by Executive Order 11246, which was issued by President Lyndon B. Johnson on September 24, 1965, and prohibits federal contractors and federally assisted construction contractors and subcontractors, who do business with the federal government, from discriminating in employment decisions on the basis of race, color, religion, sex, or national origin. In 1967, President Johnson amended the order to include gender on the list of attributes. Executive Order 11246 also requires federal contractors to take affirmative action to promote the full realization of equal opportunity for women and minorities. Since that time, various affirmative action programs have been created in California as well as the broader United States, to both redress disadvantages associated with past and present discrimination as well as ensure public institutions, such as universities, hospitals, and police forces, are more representative (e.g. by race or gender) of the populations they serve. On January 21, 2025, several years after Proposition 16 was voted down, President Donald J. Trump issued an executive order entitled "Ending Illegal Discrimination and Restoring Merit-Based Opportunity" which in part revoked Executive Order 11246.
Led by University of California Regent Ward Connerly and endorsed by Governor Pete Wilson, Proposition 209 appeared on the ballot in California as a constitutional amendment on November 5, 1996, and was approved by voters. Proposition 209 amended the Constitution of California to prohibit government institutions 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." For these purposes, California's Constitution defines "the state" to include the state, any city, county, public university system, community college district, school district, special district, or any other political subdivision or governmental instrumentality of, or within, the state.
Since the passage of Proposition 209, there have been several legislative attempts to repeal sections of Proposition 209. In 2011, SB 185 would have permitted affirmative action in public higher education, but was ultimately vetoed by Governor Brown citing possible conflicts with Proposition 209. In 2014, California Senate Constitutional Amendment No. 5 would have done the similar if passed by voters, but was shelved due to strong opposition. Proposition 16 represents the first time a repeal of Proposition 209 has appeared on the ballot.
College admissions In Fisher v. University of Texas (2016) the Supreme Court held that public colleges and universities may consider race as one of many factors as part of their admissions decisions when race-neutral alternatives are insufficient to build a racially diverse student body. They may not use quotas or race-based point systems for this purpose, as the Supreme Court already ruled in Regents of the Univ. of Cal. v. Bakke (1978) and Gratz v. Bollinger (2003) that those affirmative actions schemes are federally unconstitutional. Prior to Proposition 209, some of California's public universities considered race and ethnicity as factors when making admissions decisions and offered programs to support the academic achievement of those students. After Proposition 209, these considerations were banned.
Some public universities in California created or modified policies and programs to instead consider characteristics not banned by Proposition 209, such as socioeconomic status and geography. For example, UC Berkeley considers "contextual factors that bear directly upon the applicant’s achievement, including linguistic background, parental education level, and other indicators of support available in the home." Moreover, all UC schools utilize a review that takes into account 14 factors including academic performance, special talents, and special circumstances. According to the California legislative analyst, many of the state's universities provide outreach and support programs for students who are first in their family to attend college. Many university campuses also consider where students attended high school and where they live when making admissions decisions. The universities view these policies and programs as ways to increase diversity without violating Proposition 209.
A longitudinal study by UC Berkeley Center for Studies in Higher Education researcher and then-economics PhD candidate Zachary Bleemer on the impact of Proposition 209 on student outcomes using a difference-in-difference research design and a newly constructed database linking all 1994-2002 University of California applicants to their college enrollment, course performance, major choice, degree attainment, and wages into their mid-30s found “the first causal evidence that banning affirmative action exacerbates socioeconomic inequities.” The study found “Proposition 209 instigated a dramatic change in UC admissions policy, with underrepresented group (URG) enrollment at the Berkeley and UCLA campuses immediately falling by more than 60 percent and systemwide URG enrollment falling by at least 12 percent.” Also according to the window studied (after race- and gender-based affirmative action was banned but before socioeconomic preferences were introduced), the immediate ban on affirmative action reduced Black and Latino students' likelihood of graduating and attending graduate school, and resulted in a decline in wages. At the same time, the report found that the policy did not significantly impact wages of white and Asian American students. This study has since been published in the Quarterly Journal of Economics.
A rebuttal to Bleemer's study by UCLA Professor of Law Richard Sander argued that Bleemer's claims are incorrect and that URM enrollment reached pre-Prop 209 levels by 2000. Sander also argued that Proposition 209 reduced negative mismatch effects, leading to an increase in the number of URM STEM graduates while the national trend was flat. Sander finally noted that due to the university withholding admissions data from outside researchers that Bleemer's research is not reproducible by outside researchers.
William Kidder, a research associate at the UCLA Civil Rights Project rebuts Sander's rebuttal stating "Professor Sander’s claims about Prop 209 in his rebuttal to the Bleemer paper are not consistent with the overall body of relevant peer-reviewed scholarship. Rather, Mr. Bleemer’s findings about URM enrollment, graduation rates and earnings under Prop 209 are broadly consistent with the preponderance of peer-reviewed research studies."
Public contracting and employment