Amended in Senate May 30, 2013

Senate Constitutional AmendmentNo. 5


Introduced by Senator Hernandez

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(Principal coauthor: Assembly Member Bradford)

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(Coauthors: Senators Block, De León, Lara, Leno, and Steinberg)

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(Coauthor: Assembly Member Garcia)

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December 3, 2012


Senate Constitutional Amendment No. 5—A resolution to propose to the people of the State of California an amendment to the Constitution of the State, by amending Section 31 of Article I thereof, relating to publicbegin delete postsecondaryend delete education.

LEGISLATIVE COUNSEL’S DIGEST

SCA 5, as amended, Hernandez. Publicbegin delete postsecondaryend delete education: student recruitment and selection.

The California Constitution prohibits 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.

This measure wouldbegin delete provide that the above prohibition does not prevent state institutions of higher education, as defined, from implementing student recruitment and selection programs permissible under the equal protection clause of the 14th Amendment to the United States Constitutionend deletebegin insert eliminate this prohibition on state discrimination or preference in the operation of public educationend insert.

Vote: 23. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

P2    1Resolved by the Senate, the Assembly concurring, That the
2Legislature of the State of California at its 2013-14 Regular
3Session commencing on the third day of December 2012,
4two-thirds of the membership of each house concurring, hereby
5proposes to the people of the State of California, that the
6Constitution of the State be amended as follows:

7begin insert

  

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That Section 31 of Article I thereof is amended to read:

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8

SEC. 31.  

(a) The State shall not discriminate against, or grant
9preferential treatment to, any individual or group on the basis of
10race, sex, color, ethnicity, or national origin in the operation of
11public employmentbegin delete, public education,end delete or public contracting.

12(b) This section shall apply only to action taken after the
13section’s effective date.

14(c) begin deleteNothing in this end deletebegin insertThis end insertsection shallbegin insert notend insert be interpreted as
15prohibiting bona fide qualifications based on sexbegin delete whichend deletebegin insert thatend insert are
16reasonably necessary to the normal operation of public
17employmentbegin delete, public education,end delete or public contracting.

18(d) begin deleteNothing in this end deletebegin insertThis end insertsection shallbegin insert notend insert be interpreted as
19invalidating any court order or consent decreebegin delete whichend deletebegin insert thatend insert is in
20force as of the effective date of this section.

21(e) begin deleteNothing in this end deletebegin insertThis end insertsection shallbegin insert notend insert be interpreted as
22prohibiting actionbegin delete whichend deletebegin insert thatend insert must be taken to establish or maintain
23eligibility for any federal program, where ineligibility would result
24in a loss of federal funds to the State.

25(f) For the purposes of this section, “State” shall include, but
26not necessarily be limited to, the State itself, any city, county, city
27and county,begin delete public university system, including the University of
28California, community college district, school district,end delete
special
29district, or any other political subdivision or governmental
30 instrumentality of or within the State.begin insert “State” does not include
31the University of California or the Public School System.end insert

32(g) The remedies available for violations of this section shall
33be the same, regardless of the injured party’s race, sex, color,
34ethnicity, or national origin, as are otherwise available for
35violations of then-existing California antidiscrimination law.

36(h) This section shall be self-executing. If any part or parts of
37this section are found to be in conflict with federal law or the
38United States Constitution, the section shall be implemented to
39the maximum extent that federal law and the United States
P3    1Constitution permit. Any provision held invalid shall be severable
2from the remaining portions of this section.

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3

  

That Section 31 of Article I thereof is amended to read:

4

SEC. 31.  

(a) The State shall not discriminate against, or grant
5preferential treatment to, any individual or group on the basis of
6race, sex, color, ethnicity, or national origin in the operation of
7public employment, public education, or public contracting.

8(b) Notwithstanding subdivision (a), this section does not
9prevent state institutions of higher education from implementing
10student recruitment and selection programs that are permissible
11under the equal protection clause of the Fourteenth Amendment
12to the United States Constitution.

13(c) This section shall apply only to action taken after the
14section’s effective date.

15(d) This section shall not be interpreted as prohibiting bona fide
16qualifications based on sex which are reasonably necessary to the
17normal operation of public employment, public education, or public
18contracting.

19(e) This section shall not be interpreted as invalidating any court
20order or consent decree that is in force as of the effective date of
21this section.

22(f) This section shall not be interpreted as prohibiting action
23which must be taken to establish or maintain eligibility for any
24federal program, if ineligibility would result in a loss of federal
25funds to the State.

26(g) (1) For the purposes of this section, “State” shall include,
27but not necessarily be limited to, the State itself, any city, county,
28city and county, public university system, including the University
29of California, community college district, school district, special
30district, or any other political subdivision or governmental
31instrumentality of or within the State.

32(2) For the purposes of this section, “state institutions of higher
33education” shall mean: (A) the California Community Colleges;
34(B) the California State University, and each campus, branch, and
35function thereof; and (C) each campus, branch, and function of
36the University of California.

37(h) The remedies available for violations of this section shall
38be the same, regardless of the injured party’s race, sex, color,
39ethnicity, or national origin, as are otherwise available for
40violations of then-existing California antidiscrimination law.

P4    1(i) This section shall be self-executing. If any part or parts of
2this section are found to be in conflict with federal law or the
3United States Constitution, the section shall be implemented to
4the maximum extent that federal law and the United States
5Constitution permit. Any provision held invalid shall be severable
6from the remaining portions of this section.

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