03-17-14 Searchable packetTable of Contents
Agenda 2
Senate Constitutional Amendment 5 (SCA-5)
Staff Report 4
A - SCA 5 Text 7
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AGENDA
CUPERTINO CITY COUNCIL ~ SPECIAL MEETING
10350 Torre Avenue, Community Hall Council Chamber
Monday, March 17, 2014
3:00 PM
CITY COUNCIL MEETING
PLEDGE OF ALLEGIANCE
ROLL CALL
ORAL COMMUNICATIONS
This portion of the meeting is reserved for persons wishing to address the council on
any matter not on the agenda. Speakers are limited to three (3) minutes. In most cases,
State law will prohibit the council from making any decisions with respect to a matter
not listed on the agenda.
ORDINANCES AND ACTION ITEMS
1. Subject: Senate Constitutional Amendment 5 (SCA‐5)
Recommended Action: Staff recommends that City Council provide direction on the
City’s position on proposed legislation
Staff Report
A ‐ SCA 5 Text
Page: 4
ADJOURNMENT
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Monday, March 17, 2014 Cupertino City Council
The City of Cupertino has adopted the provisions of Code of Civil Procedure §1094.6; litigation
challenging a final decision of the City Council must be brought within 90 days after a decision is
announced unless a shorter time is required by State or Federal law.
Prior to seeking judicial review of any adjudicatory (quasi‐judicial) decision, interested persons must
file a petition for reconsideration within ten calendar days of the date the City Clerk mails notice of the
City’s decision. Reconsideration petitions must comply with the requirements of Cupertino Municipal
Code §2.08.096. Contact the City Clerk’s office for more information or go to
http://www.cupertino.org/index.aspx?page=125 for a reconsideration petition form.
In compliance with the Americans with Disabilities Act (ADA), the City of Cupertino will make
reasonable efforts to accommodate persons with qualified disabilities. If you require special assistance,
please contact the city clerk’s office at 408‐777‐3223 at least 48 hours in advance of the meeting.
Any writings or documents provided to a majority of the Cupertino City Council after publication of
the packet will be made available for public inspection in the City Clerk’s Office located at City Hall,
10300 Torre Avenue, during normal business hours and in Council packet archives linked from the
agenda/minutes page on the Cupertino web site.
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OFFICE OF THE CITY MANAGER
CITY HALL
10300 TORRE AVENUE • CUPERTINO, CA 95014‐3255
TELEPHONE: (408) 777‐3212 www.cupertino.org
CITY COUNCIL STAFF REPORT
Meeting: March 17, 2014
Subject
Senate Constitutional Amendment 5 (SCA‐5)
Recommended Action
Staff recommends that City Council provide direction on the City’s position on
proposed legislation.
Discussion
SCA‐5 is a measure in the California Legislature, which would pose to the voters, if
passed by both houses, the question of whether to remove “public education” from the
prohibition of the “State” from discriminating, or granting preferential treatment to, any
individual or group on the basis of race, sex, color, ethnicity, or national origin. In the
section’s definition of “State,” the following would be removed from the Constitution:
“public university system, including the University of California, community college
district, school district.” Further, the proposal would add, “‘State’ does not include the
University of California or the Public School System.”
As provided in Article 18 of California Constitution, the Legislature may submit a
measure to the voters in a general election after the measure passes a two‐thirds vote in
each house. The measure has passed in the Senate, and currently is in the Assembly. On
January 30th, SCA‐5 was read for the first time and held at the desk. The remaining steps
in the Assembly are: the Rules Committee will assign the measure to committee (likely
Higher Education), committee hearing, committee action, second hearing, and third
hearing. As this measure is a constitutional amendment, if passed by two‐thirds of each
house, it will go to a vote of the electorate. The last day for the Secretary of State to
determine whether the measure qualifies for the November 2014 ballot is June 26.
The purpose of the legislation is to submit a constitutional amendment to the voters,
which, if approved, would allow for consideration of racial or other protected
categories in the admissions process of public schools, specifically the U.C. System. The
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California Constitution confers broad powers upon the U.C. Regents, including the “full
powers of organization and government” subject to legislative control in certain areas.
(Cal. Const. Art IX, Sect. 9). As with any other public entity, the U.C. Regents are bound
by the California Constitution, and any amendment. The current U.C. Regents policy
regarding admission provides, in relevant part:
Mindful of its mission as a public institution, the University of California has a
historic commitment to provide places within the University for all eligible
applicants who are residents of California. The University seeks to enroll, on
each of its campuses, a student body that, beyond meeting the Universityʹs
eligibility requirements, demonstrates high academic achievement or exceptional
personal talent, and that encompasses the broad diversity of cultural, racial,
geographic, and socioeconomic backgrounds characteristic of California.ʺ
Regents Policy 2102, ʺPolicy on Undergraduate Admissionsʺ.
The State and the U.C. Regents are bound by the U.S. Constitution and Supreme Court
precedent. In particular, state university “decisions based on race or ethnic origin… are
reviewable under the Fourteenth Amendment,” Univ. of Cal. V. Bakke, 438 U.S. 265, 287
(1978), using a strict scrutiny standard. Under strict scrutiny, a university must clearly
demonstrate that its “purpose or interest is both constitutionally permissible and
substantial, and that its use of the classification is necessary… to the accomplishment of
its purpose.” 438 U.S. at 305. In Bakke, Justice Powell identified the interest in the
educational benefits that flow from a diverse student body as a compelling interest that
could justify the consideration of race. The Supreme Court in Grutter v. Bollinger added,
“To be narrowly tailored, a race‐conscious admissions program cannot use a quota
system” 539 U.S. 306, 334 (2003), but it must “remain flexible enough to ensure that each
applicant is evaluated as an individual and not in a way that makes an applicant’s race
or ethnicity the defining feature of his or her application,” 539 U.S. at 337.
As of January 24, 2014, American Civil Rights Coalition is the only organization
opposing the bill that is acknowledged in California Senate documents. The following
organizations support SCA-5:
‐ AFSCME;
‐ American Association of University Women;
‐ Association of California Healthcare Districts;
‐ Bassett Teachers Association;
‐ California Academy of Physician Assistants;
‐ California Association for Nurse Practitioners;
‐ California Black Chamber of Commerce;
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‐ California Black Health Network;
‐ California Communities United Institute;
‐ California Hospital Association;
‐ California Medical Association;
‐ California Nurses Association;
‐ California Pan-Ethnic Health Network;
‐ California Pharmacists Association;
‐ California Primary Care Association;
‐ California State Student Association;
‐ California Teachers Association;
‐ Equal Justice Society;
‐ Equality California;
‐ Health Access California;
‐ Hispanic Association of Colleges and Universities;
‐ Lawyers’ Committee for Civil Rights of the San Francisco Bay Area;
‐ Medical Oncology Association of Southern California, Inc.;
‐ People Improving Communities through Organizing;
‐ Public Advocates;
‐ The Greenlining Institute;
‐ University of California Student Association; and
‐ Western Center on Law and Poverty
The ad hoc Legislative Action Committee, consisting of Mayor Wong and Vice Mayor
Sinks, met and recommended that Council oppose SCA‐5 in its current form.
_____________________________________
Prepared by: Louis Sarmiento, Assistant to the City Manager and Council
Reviewed by: Rick Kitson, Public Affairs Director
Approved for Submission by: David Brandt, City Manager
Attachments:
A – Text of SCA‐5
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AMENDED IN SENATE MAY 30, 2013
Senate Constitutional Amendment No. 5
Introduced by Senator Hernandez
(Principal coauthor: Assembly Member Bradford)
(Coauthors: Senators Block, De León, Lara, Leno, and Steinberg)
(Coauthor: Assembly Member Garcia)
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
public postsecondary education.
legislative counsel’s digest
SCA 5, as amended, Hernandez. Public postsecondary 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 would 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 Constitution eliminate this prohibition on state discrimination
or preference in the operation of public education.
Vote: 2⁄3. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
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line 1 Resolved by the Senate, the Assembly concurring, That the
line 2 Legislature of the State of California at its 2013–14 Regular
line 3 Session commencing on the third day of December 2012,
line 4 two-thirds of the membership of each house concurring, hereby
line 5 proposes to the people of the State of California, that the
line 6 Constitution of the State be amended as follows:
line 7 That Section 31 of Article I thereof is amended to read:
line 8 SEC. 31. (a) The State shall not discriminate against, or grant
line 9 preferential treatment to, any individual or group on the basis of
line 10 race, sex, color, ethnicity, or national origin in the operation of
line 11 public employment, public education, or public contracting.
line 12 (b) This section shall apply only to action taken after the
line 13 section’s effective date.
line 14 (c) Nothing in this This section shall not be interpreted as
line 15 prohibiting bona fide qualifications based on sex which that are
line 16 reasonably necessary to the normal operation of public
line 17 employment, public education, or public contracting.
line 18 (d) Nothing in this This section shall not be interpreted as
line 19 invalidating any court order or consent decree which that is in
line 20 force as of the effective date of this section.
line 21 (e) Nothing in this This section shall not be interpreted as
line 22 prohibiting action which that must be taken to establish or maintain
line 23 eligibility for any federal program, where ineligibility would result
line 24 in a loss of federal funds to the State.
line 25 (f) For the purposes of this section, “State” shall include, but
line 26 not necessarily be limited to, the State itself, any city, county, city
line 27 and county, public university system, including the University of
line 28 California, community college district, school district, special
line 29 district, or any other political subdivision or governmental
line 30 instrumentality of or within the State. “State” does not include
line 31 the University of California or the Public School System.
line 32 (g) The remedies available for violations of this section shall
line 33 be the same, regardless of the injured party’s race, sex, color,
line 34 ethnicity, or national origin, as are otherwise available for
line 35 violations of then-existing California antidiscrimination law.
line 36 (h) This section shall be self-executing. If any part or parts of
line 37 this section are found to be in conflict with federal law or the
line 38 United States Constitution, the section shall be implemented to
line 39 the maximum extent that federal law and the United States
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— 2 —SCA 5
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line 1 Constitution permit. Any provision held invalid shall be severable
line 2 from the remaining portions of this section.
line 3 That Section 31 of Article I thereof is amended to read:
line 4 SEC. 31. (a) The State shall not discriminate against, or grant
line 5 preferential treatment to, any individual or group on the basis of
line 6 race, sex, color, ethnicity, or national origin in the operation of
line 7 public employment, public education, or public contracting.
line 8 (b) Notwithstanding subdivision (a), this section does not
line 9 prevent state institutions of higher education from implementing
line 10 student recruitment and selection programs that are permissible
line 11 under the equal protection clause of the Fourteenth Amendment
line 12 to the United States Constitution.
line 13 (c) This section shall apply only to action taken after the
line 14 section’s effective date.
line 15 (d) This section shall not be interpreted as prohibiting bona fide
line 16 qualifications based on sex which are reasonably necessary to the
line 17 normal operation of public employment, public education, or public
line 18 contracting.
line 19 (e) This section shall not be interpreted as invalidating any court
line 20 order or consent decree that is in force as of the effective date of
line 21 this section.
line 22 (f) This section shall not be interpreted as prohibiting action
line 23 which must be taken to establish or maintain eligibility for any
line 24 federal program, if ineligibility would result in a loss of federal
line 25 funds to the State.
line 26 (g) (1) For the purposes of this section, “State” shall include,
line 27 but not necessarily be limited to, the State itself, any city, county,
line 28 city and county, public university system, including the University
line 29 of California, community college district, school district, special
line 30 district, or any other political subdivision or governmental
line 31 instrumentality of or within the State.
line 32 (2) For the purposes of this section, “state institutions of higher
line 33 education” shall mean: (A) the California Community Colleges;
line 34 (B) the California State University, and each campus, branch, and
line 35 function thereof; and (C) each campus, branch, and function of
line 36 the University of California.
line 37 (h) The remedies available for violations of this section shall
line 38 be the same, regardless of the injured party’s race, sex, color,
line 39 ethnicity, or national origin, as are otherwise available for
line 40 violations of then-existing California antidiscrimination law.
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SCA 5— 3 — 9
line 1 (i) This section shall be self-executing. If any part or parts of
line 2 this section are found to be in conflict with federal law or the
line 3 United States Constitution, the section shall be implemented to
line 4 the maximum extent that federal law and the United States
line 5 Constitution permit. Any provision held invalid shall be severable
line 6 from the remaining portions of this section.
O
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— 4 —SCA 5
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