Examining 'Voter Intent' Behind Proposition 209: Why Recruitment, Retention, and Scholarship Privileges Should Be Permissible Under Article I, Section 31

Abstract

In 1996 California voters passed Proposition 209, now Article I, section 21 of the California Constitution, which forbids the state, in the operation of public employment, education, or contracting, from discriminating against or granting preferential treatment to people based on race, sex, color, ethnicity, or national origin. However, this prohibition does not apply to all "entry" or "access" preferences. The author argues that one of the preferences not covered by this prohibition is the use of financial aid and scholarship programs designed to retain a diversity student body. Accordingly, California public colleges and universities can reinstate some use of diversity scholarships as a narrowly-tailored means of furthering the compelling interest in realizing the benefits of student-body diversity. The article first summarizes the text of Proposition 209 and analyzes the principal cases that have defined its meaning, and then explores various mechanisms for ascertaining voter intent. It then explains how and why retention privileges fall outside the scope of Proposition 209's prohibitions, and proposes a diversity scholarship program that satisfies the California Constitution and the United States Constitution.

Keywords: California, constitution, discrimination, preferential treatment, race, sex, color, ethnicity, national origin, financial aid, scholarship, college, university, diversity, student body, Proposition 209, narrowly tailored, compelling interest, election, voter intent