California Assembly Constitutional Amendment No. 5

Ward Connerly was one of the leading African American voices and architect of the successful implementation of Proposition 209 in 1996. At that time, he was a member of the University of California's Board of Regents. Connerly was born in the deep south, saw racial discrimination first hand, and found it to be wrong. As he became older and UC Regent with a fiduciary duty to the university, he felt that affirmative action was an equally wrong form of discrimination that must be addressed. This would ultimately lead him to be the driving force in support of Prop 209.[19]

Now, in 2020, he is 81 years old and is again a leading voice in defense of Proposition 209 and in opposition to ACA 5.  He has reportedly moved to Sacramento from Idaho to continue his work in defense of Proposition 209 against ACA 5, defending his legacy and efforts of a quarter century ago.[20]

Some critics argue that the plain language of the amendment would, for example, legalize preferential treatment to white candidates over their race without legal consequences, thereby undermining the stated intent of ACA 5 supporters.[3] If passed, for example, an individual hiring for the DMV, which employs over-represented black workers,[21] would be able to prefer a white candidate over a black candidate because of their race without being punishable by law.

Gail Heriot, a University of San Diego law professor who co-chaired the 1996 Yes on Proposition 209 campaign, is a leading opponent of ACA 5. Heriot contends that race-based preferences that favor some groups necessarily results in discrimination against others.[14] To support this position, Heriot quotes Thurgood Marshall, the first black US Supreme Court Justice, in opposition to Jim Crow laws, when he argued “classifications and distinctions based on race or color have no moral or legal validity in our society.” Heriot implies that ACA 5, by extension, has no morally or legally validity in American society.[14]

Another ACA 5 critic, UCLA Professor and senior fellow at the Hoover Institution, Lee Ohanian, points to what he sees as an intellectual inconsistency among those favoring ACA 5. Regarding ACA 5 supporters' assertion that rampant gender biases persist in modern California, for example, he notes women represent nearly 59 percent of the University of California student body. This, he argues, suggests that ACA 5 is not really about fighting bias and bigotry, but is about justifying preferential treatment for certain government-favored groups.[22]

Steven Choi, a Korean American California state Assemblyman, said, "The act of giving special or preferential treatment to someone based on their race is racism itself, or on sex is sexism. Just ask yourself, is it right to give someone a job just because they are white or black or green or yellow? Or just because they are male?"[2]

Numerous peer-reviewed studies show empirical evidence of positive outcomes of Proposition 209 that directly counters its opponents' attack on its effect on diversity and minority students. In higher education, public employment and contracting, ethnic minorities and women have continued to make steady progress in education and employment since the adoption of proposition 209.[23] Simply put, these studies show that when students attend the colleges that better match their objective credentials, such as GPA and SAT scores, they realize greater successes.[24]

Proposition 209 has led to a more efficient sorting and matching of minority students, resulting in a significant increase in minority students' graduation rate.[25] The total number of black and Hispanic students receiving bachelor's degrees was the same for the five classes after Prop 209 compared to the five classes before.[26]

Gail Heriot argues that while Proposition 209 critics cite a decrease in minority student admissions at UC Berkeley since its passage, minority students’ enrollment and, "more importantly," academic performance increased at other campuses within the UC system. Her 2001 study showed decreases in minority students in academic jeopardy; increases in minority student graduation rates; increases in minority student grade point averages; and an increase in the number of science or engineering majors. In contrast, at institutions where race was a factor that competed with preparedness, Heriot shows that URM students cluster near the bottom of the class, "a demoralizing position.”[14]

Heriot further wrote in the San Diego Union-Tribune about how in 1998, “the first year of colorblind admissions” at UC San Diego, the number of freshman year, black honor students (a GPA of 3.5 or better) increased from a single student out of a body of 3,268 in the year before Proposition 209, to a full 20% of the black freshman in 1998.[27] UC San Diego also reported that in 1998, underrepresented students substantially outperformed their 1997 counterparts.[27]

Wenyan Wu, director of administration for the Asian American Coalition for Education, rebuts the dismal picture of URM higher education prospects laid out in the preamble of ACA 5, which she characterizes as “fabricated,” “misleading,” and “cherry-picked,”[28] by providing additional data showing improved academic outcomes for underrepresented racial minorities in the UC system since the passage of Proposition 209 between 1995 and 2014.

Wu contends that ACA 5's claim that “since the passage of Proposition 209, diversity within public educational institutions has been stymied” is demonstrably false.[28] Wu condemns ACA 5 as merely a superficial, “myopic scheme” that avoids addressing real, fundamental issues behind achievement gaps and racial discrepancies.[29] Wu concludes that deeper, systemic socio-economic issues rooted in national and global history must be addressed in order for truer equal outcomes to take place for underrepresented minorities.[29]

ACA 5 opponents and defenders of Prop 209 also point to record URM enrollment within the UC system reported in July 2019. According to the Los Angeles Times the UC system increased the proportion of URM freshmen to 40% from 38% over the previous year.[30]

Other measurable diversity has improved, according to ACA 5 opponents. Of the 9 UC campuses, 6 have been designated as Hispanic Serving Institutions and 4 have been awarded Higher Education Excellence in Diversity. Within the California State University system's 23 campuses, 40% of enrollees are Hispanic and 21 campuses meet Hispanic Serving Institution status. White enrollment at UC Berkeley and UCLA also decreased from 29.5% to 21%, and 31.2% to 24.8%, respectively, between 1996 and 2019. Overall URM enrollment at UC increased from 15% to 26% between 1996 and 2019, with Hispanic admissions rising from 13.6% (5,886) to 24% (26,247), and black admissions increasing from 3.9% (1,687) to 4.1% (4,406). 4-year minority graduation rates have also increased from 31.3% to 55.1% between 1996 and 2014; and 6-year graduation rates have increased from 66.5% in 1998 to 75.1% in 2013.[31]

ACA 5 opponents also rebut several factual claims asserted in the preamble of ACA 5 regarding policy outcomes in the wake of Prop 209. Among these facts are women & all people of color seeing increased and even over-representation in public employment and civil service.[32][31]

African American researcher Thomas Sowell found in Affirmative Action Around the World that race preference programs worldwide have not met expectations and have often produced the opposite of what was originally intended. An excerpt of this book is published by Hoover Institution, an American public policy think tank and research institution located at Stanford University in California.[33]

UCLA Law School professor Richard H. Sander found that law school admissions preferences impose enormous costs on blacks and create relatively minor benefits.[34] The study acknowledges the benefit of affirmative actions to black students in term of total number of those admitted to law schools, as well as the portion admitted to the more elite schools. On the other hand, Sander found that race-based policy imposes six major costs to black students that greatly outweigh its benefits.

Peter Kirsanow of the National Review points out that underrepresented minorities who are granted admission to colleges due to racial preferences are more likely to rank near the bottom of their class or to leave due to attrition, particularly in STEM fields and law.[35] This phenomenon is due in large part to what Richard Sander and Stuart Taylor call the “mismatch effect.” GPAs and SAT scores of those admitted due to affirmative action are dramatically lower than their white and Asian counterparts, leading to preparedness and performance disparities between the former and latter groups. These disparities result in “mismatched” affirmative action students being significantly more likely to cluster in the bottom quartile of their respective classes or drop out entirely.[35]  

The concept of this academic “mismatch effect” and how it disadvantages the very students proponents of ACA 5 claim to intend to help, is detailed in the book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It, by Richard Sander and Stuart Taylor, Jr.[36]

Kirsanow laments that while the discussion of the mismatch effect illustrates how underrepresented minorities are not benefited by racial preferences, and may in fact be harmed by them, it does not address the unfairness that the policies yield for Asian and white students who are denied admission to their preferred university despite stronger academic credentials.[37]

American Council of Trustees and Alumni President Michael Poliakoff, citing the work of Heriot and the Manhattan Institute's Heather Mac Donald, also argues when university admissions practices are not in line with the institution's academic standards, they are unlikely to help the intended beneficiaries. Students drawn into an academic environment for which they are not qualified are likely to avoid rigorous or difficult academic disciplines that are the most direct path to upward economic mobility. He concludes, “overmatched students are likely to feel they are used as mere tools to satisfy metrics and are left academically adrift on campus where they will feel frustrated and alienated.”[38]

Compounding the mismatch effect, outlined above, The Federalist reports that college takes a disproportionately high economic toll on students who lack sufficient preparation. Overall, between 40 and 60 percent of high school graduates are placed into remedial courses in their first year of college. Many of these students drop out and never earn bachelor's degrees. Those who leave college before graduation due to grade attrition earn far less than graduates on average, and are nearly four times more likely to default on student loans than those who graduate. Defaulting on student loans destroys the borrowers’ credit scores, damaging the ability to borrow for a house or a car, especially at reasonable, non-predatory interest rates, further perpetuating or even deepening cycles of poverty.[39]

An empirical analysis by Jason Marion of the University of California Santa Cruz Department of Economics showed that cost of state-funded contracts fell by 5.6% after the implementation of Proposition 209 compared to federal contracts, which continued to apply preferences in contractor procurement.[40]

The preamble of ACA 5 claims that due to Prop 209, California ended its Minority and Women Business Enterprise (MWBE) contracting program, and MWBEs have lost public contracts worth over $1 billion per year. ACA 5 opponents, however, argue that these are not actually billions lost, but billions of tax dollars saved. They also note two court cases that have upheld Prop 209 as not having categorically banned race-based affirmative action measures, and outreach programs that encourage competitive bidding, reduce public costs, and the avoidance of discrimination.[41]

Given the abundance of objective, empirical evidence that Prop 209 helps URM students, and that race-based preferences are detrimental to them, Kirsanow argues “the only group it benefits are the charlatans of identity politics.” [35]

Jason L. Riley of the Wall Street Journal also criticizes political progressives who support ACA 5 for seeking to repeal Prop 209 despite the evidence of its yielding positive results for all students, and URM students in particular. Further, Riley observes, “[progressives do not] seem to care that race-conscious policies punish Asian-American students for academic overachievement.”[42]

Mike Gonzales of The Federalist criticizes the proponents of ACA 5 as engaged in identity politics in order to maintain the division of American society into antagonistic groups with the insidious goal of upending America's institutions, culture, and economic system.[43]

ACA 5 opponents observe that identity politics attacks are nothing new in the debate on affirmative action. During the 1996 debate on Prop 209, its opponents were known for vicious personal attacks against Prop 209 and its supporters. A Los Angeles city councilor, for example, compared Prop 209 to Adolf Hitler’s autobiographical manifesto, Mein Kampf, while a state senator attacked Prop 209’s chief sponsor, African-American businessman and University of California regent Ward Connerly, in arguably racist terms, stating, “He's married a white woman. He wants to be white . . . .  He has no ethnic pride.”[44][45]

In a March 2020 statement in opposition to ACA 5, the Asian American Coalition for Education claimed that ACA 5 “pits racial groups against each other.”[46]

Opponents also point to failures in California's public education system as one of the true, root causes of outcome disparities with underrepresented minority groups – namely the significantly lower rate of fulfilling A-G subject requirements, which are foundational requirements for admission to the UC system.[16] According to an analysis by WalletHub, published in July 2019, California ranked 40th in public school educational quality among the 50 states.[22]

According to ACA 5 opponent, UCLA Professor, and senior fellow at the Hoover Institution, Lee Ohanian, compared to educational outcomes around the world, US outcomes are in the middle of the global pack in academic achievement and sometimes trailing poorer countries. In math achievement, in particular, even the highest-performing US states significantly trail the countries with the leading education systems. Ohanian also notes that students from low-income families tend to attend the worst-performing schools, while whites and those of Asian descent are more likely to attend a higher-performing school.[22]

He argues that higher performing school systems are an integral part of building a society where “all have the knowledge base and skills to succeed.” He also criticizes California public school performance as inadequate, despite substantial budget increases. Ohanian points to policy failures, rather than budget shortfalls as the root of the problem. Ohanian goes on to lay blame at the feet of California lawmakers and their close political ties with teacher unions on issues such as tenure and promotion, pay criteria, and the high cost of firing a poorly performing teacher.[22]

Wenyuan Wu contends that California's issues with public education cannot be addressed by reinstituting race-based preferential treatment in public institutions. Government preferences, she argues, will only accelerate California's deteriorating public education system, foster a cultural de-emphasis on education and excellence, contribute to a shrinking middle class, and hurt American competitiveness in the global economy.[47]

Other opponents argue against ACA 5, stating that California legislators are proposing to entirely repeal Proposition 209 and unfairly roll the clock back to legalize discriminating a person based on race, sex, color, ethnicity, or national origin. The 14th Amendment of the US Constitution states that no state shall deny to any person within its jurisdiction the equal protection of its laws. ACA-5 re-introduces racial preferences, still a form of racial discrimination, into the state law. Therefore, opponents argue, it violates the U.S. Constitution. It will divide California and pit one group of citizens against another simply based on their race, sex, color, ethnicity, or national origin. It will minimize the accomplishments of minority groups to a simple result of preferential treatment, a blow to their extraordinary hard work and sacrifice.[48]

Opponents also argue that ACA 5's affirmative action goals conflate the concepts of equal opportunity and equal outcome.[49] The Equal Protection Clause commands the elimination of racial barriers, they argue, not their creation in order to satisfy our theory as to how society ought to be organized. As U.S. Supreme Court Chief Justice John Roberts put it, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” opponents say.[49]

The Asian American Coalition for Education issued a March 16, 2020 statement arguing that ACA 5 violates Title VI of the Civil Rights Act of 1964 which “prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance.” The statement goes on to condemn ACA 5 proponents’ promotion of “a political agenda of discrimination, unjust preferences, and double standards.”[46]

The National Association of Scholars issued a statement in opposition to ACA 5, applauding Proposition 209 not for preventing California from discriminating in public university admissions and employment, but also for the positive effects of increased graduation rates among underrepresented ethnic minorities.The statement also heralds Proposition 209 as giving constitutional protection to America's “highest civic ideals” and advancing the interests of all Californians.[50]

Former law professor Dr. Lawrence Stephens, another staunch ACA 5 opponent, suggested that "We saw all the way back to the Bakke ruling where affirmative action leads," and "Out of all the states that do not have affirmative action, California has somehow remained one since 1996. And people there voted to give people jobs and college positions based on merit and experience and not because of factors like race or gender. The best person gets it."[10] Many opponents believe that governments, institutions, and colleges who have adopted affirmative action policies essentially use "reverse racism," which they argue keeps away more qualified people as a result. "It's not dog whistling to call it ‘reverse racism’, because that's exactly what it is. Under the old system, you got ‘points’ for being a different race. How is that equal? I always heard back from colleagues that it was because they have been historically subjected and that education in minority areas is generally lower, so they don't get the same opportunities. But when you use government laws to change it, so that people with lower grades or less experience get in, it's just another form of discrimination. It's not fair at all. And many Californians realize this."[10]

Finally, Wenyuan Wu contends that meritocracy, the belief and system that rewards hard work and high achievement, is a fundamental aspect of American democracy. She argues ACA 5 would weaken the meritocratic spirit by unceasingly focusing on group victimhood and downplaying individual responsibility.[17]

John Fund, national-affairs reporter for the National Review, notes, among Asian-Americans, who constitute nearly 15 percent of California’s electorate, 2 out of 3 oppose the consideration of race in university admissions according to a 2019 Pew Research survey.[51][52] Fund relays Asian-American voters’ frustration in their children facing a “rigged system” at universities that do not have Prop 209 protections.

Asian Americans might not be faulted for feeling this way, as President Bill Clinton is quoted as once having said that because of Proposition 209's prohibition against race-preferences, some California universities might have as students, “nothing but Asian Americans.”[14]

ACA 5 opponents note that Asian Americans have had their own history of legal and systemic discrimination, as well as xenophobic prejudice against them, including the Chinese Exclusion Act of 1882, the Immigration Act of 1917, which excluded immigrants from many parts of Asia, and the internment of Japanese Americans during World War II.[53]

Despite their own historical marginalization in the United States, Asian Americans have consistently outperformed other racial groups in academics and standardized testing, according to Mike Gonzales, writing for The Federalist. Gonzales attributes these successes to lower rates of divorce and out-of-wedlock births, prioritization of academics, and doing more hours of homework per week than Americans of other origins.[43]

At universities without Prop 209 protections, well-qualified Asian American applicants are fighting for what they see as their rightful places at elite universities. Pending appeal in the First Circuit Court of Appeals, is the lawsuit, Students for Fair Admissions v. Harvard, which alleges systematic and blatant discrimination against Asian-American applicants at top universities like Harvard. Students for Fair Admissions (SFFA) allege that universities like Harvard have discriminated against Asian-American applicants by scoring them lower on personality traits, such as kindness and leadership, perpetuating stereotypes that Asians are passive, compliant or unimaginative.”[54][55] SFFA points to the highly subjective nature of such characterizations as compared to more objective measures like grade point average, engagement in extracurricular activities, and athletic achievements, as a way of intentionally and artificially suppressing the number of Asian-American students admitted to the university. The case remains pending in the First Court of Appeals and may reach the U.S. Supreme Court.

In an opinion-editorial for the Orange County Register, Shawn Steel, California’s committeeman on the Republican National Committee characterizes Asian American opposition to ACA 5 in California as “strident,” “organized and fierce,” predicting Republicans in 2020 congressional and legislative elections could benefit from Democrats' insistence on passing ACA 5.[54]

To illustrate Asian-American opposition to ACA 5, Steel spotlights George Shen, a first generation Chinese-American who came to the United States in 1993. When Shen came to the U.S. he “was dirt poor and had to work all sorts of odd jobs – cleaning restrooms and toilets, working 12 hours a day in restaurants as dishwasher and waiter, mopping floors, bartending at nightclubs, mowing lawns and landscaping during summer – while putting [himself] through graduate school.” Now that Shen is a successful tech executive and AI solutions consultant, he believes while the American dream is “alive and well,” he fears his hard-earned success will unjustly come at the cost of educational opportunities for his children, due to their being penalized in the admissions process for being perceived as having been provided a “privileged” upbringing.[54]

Ward Connerly, the pioneering civil rights leader behind the 1996 implementation of Proposition 209, said that the Asian-American community knows that with ACA 5's attack on colorblind admissions, “it’s their children’s future at stake.”[20]

California Congressman Ro Khanna has drawn sharp criticism and backlash from his Asian American constituents and supporters for having reneged on his 2014 pledge to oppose race-based preferences by state institutions of higher education. Since signing this pledge in opposition to race-based preferences, Khanna has reversed his position and “wholeheartedly” endorsed ACA 5.[56]

The Asian American Coalition for Education issued a statement in May 2020, vehemently opposing ACA 5 as a “divisive” amendment and called upon “all Asian-American" organizations to join their national alliance to stop ACA 5's renewed attempt to reinstitute racial preferences in public higher education.[57]

Further at issue is the jeopardy ACA 5 would pose to a lawsuit filed against the University of California by UCLA law professor, Richard Sander, who alleges that the University of California is both illegally using race in admissions in violation of Prop 209 and withholding evidence that they are doing so.[38] Sander has requested and been denied by the university, decades’ worth of admissions data. As the California legislature races to rewrite the law, reinstituting race preferences in government selection practices, Sander's lawsuit is getting closer to its day in court, which he anticipates being summer of 2020.

According to Sander, “If my suit is successful, and the data is disclosed, then a demonstration that UC is widely using preferences would generate a strong reaction,” he wrote in an email to TheCollegeFix.com.[38] If the Prop 209 were repealed first, Sander contends that “the reaction would no doubt be less intense.”  

UCLA and Berkeley officials have long denied that they have sought to artificially cap the number of Asian admissions to achieve more racial balance on campus, but after schools could no longer take an applicant's race into account due to Prop 209, Asian enrollment at both campuses spiked.[42]

One opponent of ACA 5 wrote in the San Diego Tribune, that ethnic-based preferences hurt U.S. competitiveness in the age of global economy, pointing to President Barack Obama's commencement speech to the historically black Morehouse College students on May 19, 2013.[49] Obama is quoted as telling the graduating class:

In today’s hyper connected, hypercompetitive world, with a billion young people from China and India and Brazil entering the global workforce alongside you, nobody is going to give you anything you haven’t earned. And whatever hardships you may experience because of your race, they pale in comparison to the hardships previous generations endured and overcame.

According to UCLA Professor and senior fellow at the Hoover Institution, Lee Ohanian, U.S. educational outcomes rank in the middle compared to peer countries around the world. He also notes that in some years, U.S. educational outcomes rank below average and trailing those of much poorer countries. In math achievement, he observes, even the highest-performing US states significantly trail the countries with the leading education systems.[22]

ACA 5 critics argue that racial preferences foster a sense of victimization in their intended beneficiaries, and erode their incentive to excel. They also contend that racial preferences stigmatize their minority beneficiaries, degrading the perceived worth of their qualifications in the eyes of themselves and others.[49] Other critics contend that racial preferences give intended beneficiaries the impression that they are not capable of success without government intervention. As a result, any successes that may be the result of racial preferences are undermined and cast into doubt.[58]

UCLA Professor and senior fellow at the Hoover Institution, Lee Ohanian wrote of personally observing the harm that can be done to a struggling minority student who was not at the right university.[22] In his early years of teaching, he reported being apologetically approached by an African American student who was struggling with her schoolwork and failing in his class.

After a lengthy conversation with the student, Ohanian observed that although the student was bright and creative, she had gone to a poorly performing high school where she'd learned far less than her peers at the university. The student's academic struggle contributed to her becoming extremely depressed, according to Ohanian.

Ohanian helped connect his pupil to student counseling. While the student ultimately left the university, she kept in touch with Ohanian. She had gone on to enroll in a junior college to learn what she needed, ultimately graduating from the University of Maryland. While Ohanian delighted in her eventual success, he expressed sadness that not all in her position go on to do the same.[22]

ACA 5 received much public attention after it was introduced to the California Assembly. It was initially scheduled for its first committee hearing in mid-March, but was postponed due to the Coronavirus pandemic. The hearing's eventual May 5 rescheduling would take place with twenty-four hours’ notice on the second day the state legislature reconvened, and while most of the state and the country were still under strict stay-at-home and social distancing orders.

ACA 5 would easily pass its first committee hearing in the Public Employment and Retirement Committee on May 5, 2020, but the timing of the hearing was strongly criticized as giving the public “deliberately short” notice, as the hearing was set merely twenty-four hours in advance, leaving opponents little time to prepare or organize their efforts.[59] One commentator accused state legislators of "using the [COVID-19] crisis as cover for a stealth effort to overturn Proposition 209.[16]

Wenyuan Wu wrote on May 5th, the day after the hearing, a harsh critique of the California Assembly for prioritizing the amendment that had “little relevance” to more urgent and pressing matters the Assembly should have been deliberating related to the COVID-19 pandemic. According to Wu, this further illustrated ACA 5 proponents’ questionable motives in setting a rushed hearing in the midst of the pandemic.[28]

Kenny Xu, of the Young America's Foundation, also criticized the bill being brought to a committee hearing and stamped for recommendation to the State Assembly and Senate floor, all on the second day the legislature had reconvened. According to Xu, the rushed and hasty nature of the committee hearing made it “instantly clear” that the bill author had been plotting to push the bill through as quickly as possible during the pandemic. Xu further noted the hearing was accompanied by nearly 100 “on-script leftist organizations” calling in to say how strongly they supported ACA-5, despite a complete lack of public debate in the legislature.[60]  

The Asian American Coalition for Education (AACE) also took issue with the hurried committee hearing during the COVID-19 pandemic, issuing a press release criticizing the legislature for taking advantage of the COVID-19 pandemic and passing the bill through committee without what they saw as a lack of adequate consideration of opposing views.[57]

ACA 5 critic, John S. Rosenberg, notes that Washington State voters rejected a measure similar to ACA 5 in 2019, and its lessons should serve as a cautionary tale to California voters.[61] Washington State's Referendum 88 was a veto referendum aimed at letting voters decide whether to approve or reject an affirmative action measure passed by the legislature, known as Washington Initiative 1000.[62] Rosenberg cautions California voters that the Ballot Summary, all that many voters typically know about a ballot measure, stated that a Yes vote would allow for affirmative action “if the action does not use quotas or preferential treatment.” However, voters would have had to “delve deeply” into explications and definitions in the full text of the measure to find that “preferential treatment” was defined as “using race, sex, color, ethnicity, national origin, age, sexual orientation, [etc.] as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate for public education, public employment, or public contracting opportunity.” (Emphasis added).

Thus, according to Rosenberg, Californians who seek to defend Prop 209 should pay close attention to how ACA 5 is described on the ballot ”unless they believe its [] sponsors are more honest than their counterparts in Washington state.”[61]

ACA 5 opponent Kenny Xu notes in The Federalist, that ACA 5 is the third attempt in 25 years for the California Democratic Legislature to try to abolish California's Proposition 209. Both previous times, the measures have failed, in spite of California being a Democratic-voting state with one of the largest percentages (63 percent) of racial minorities in the country. Xu suggests that the timing of continued efforts during a global pandemic illustrate that the state legislators behind ACA 5 know that their efforts would face much stronger opposition if Californians were allowed to organize and petition under normal conditions.[60]

The California Supreme Court has also twice upheld Prop 209 when local racially-preferenced contracting practices were legally challenged in court and found to be in conflict with Prop 209.

A Change.org petition has been launched to press the California Assembly to vote "No" on ACA 5. The petition gained over 117,000 supporters since May 9.[48]