SCA-5: Reflects Racial Discrimination
The amendment of the Californian law, proposition 209 of 1996, which was proposed by Senator Hernandez in December 2012, was one of the most debated arising issues until its withdrawal. The proposition dubbed SCA-5 (Senate Constitutional Amendment 5), has been the subject of heated discussions, with the proponents arguing that proposition 209 was not effective in accomplishing its intended purpose while the opponents claimed that passing the bill into law would give a chance for racial discrimination (Committee of 100 1). The proponents also argued that including the aspect of race among the considerations for admission into public institutions would enable the institutions to diversify their student base.
The Asian American community in California was most vocal on the issue due to the assumption that the amendment proposal targeted them. The main issue of contention was the proposal’s assertion that race should be considered prior to admission into any public higher education institution such as University of California and the Community College.
This paper seeks to address the arising issues such as the proposal mode, and the claim of racial discrimination associated with the SCA 5 with regards to the ethical aspects of the law.
On December 3rd 2012, Senator Edward Hernandez introduced an amendment proposal for the proposition 209 i.e. the SCA-5.The amendment was coauthored by Assembly members Bradford and Garcia amongst other people. The purpose of the amendment was to allow the California public institutions to admit students based on their races, ethnicity, and sex amongst other factors.
Proposition 209 states among other things that the state shall not discriminate anyone based on sex, ethnicity or race in employment, public contracts or even public education. This proposition was passed into law in 1996 and has been the subject of several court cases since then, with confirmation being made every time that it is constitutional. The main purpose of the proposition was to ensure inclusion of all individuals in various functions of the state without consideration of the discriminatory factors. Consequently, it has been reported that the admission of varying races of students into institutions of higher learning has increased significantly post proposition 209. For instance, the Asian American students portrayed the greatest increase in enrollment in comparison to other races. It is because of this that Senator Edward Hernandez proposed an amendment to the proposition 209.
In the amendment, the clauses prohibiting the consideration of the various discriminatory factors were edited to allow for such discrimination. In addition, the authors also proposed that the public educational institutions should not be included in the definition of ‘the state’ (Hernandez et al 99). This proposed amendment met so much opposition, particularly from some of the minority groups who claimed that they were the targets of the proposed change in law. Several human rights activist groups also rose against SCA-5 from the time of its inception.
Following the proposal of the bill, it was accepted by both the Senate and the Assembly house with over two thirds majority vote for it. It was passed by the senate on the 30th of May 2013. However; the bill faced immense opposition from several quarters resulting in its withdrawal by the main author after March 17th 2014.
According to various opponents, the passing of the SCA-5 proposal would culminate into a violation of the 14th Amendment which proposes equal protection for all regardless of the background or any other status. From the description of the 14th Amendment facts, this can be concluded to be true due to the discriminatory status of the proposal. In addition to this, the 14th Amendment further asserts that any racially discriminatory act can only be allowed when such an act is unavoidable and for only a limited period of time to achieve the common good. Since laws are permanent, if the SCA 5 Amendment would have been enacted, it could only be revoked through another amendment hence it can be said to be permanent.
The SCA-5 bill gives rise to various legal and ethical issues that should be considered in its wake. For instance, although there may be a genuine basis for concern regarding the diversity of the student body in most of the institutions of higher learning, it is debatable whether it is ethically acceptable to correct the error through exclusion of some other potential students who are genuinely qualified due to their racial dispositions. It may be legally acceptable but not morally acceptable. By proposing a bill that may result in foreseeable harm the Senator Edward Hernandez commits a tort of negligence and may be liable to any outcomes that may result. His actions, although based on genuine concern could result in emotional and mental harm to the excluded students, who are predicted to be mainly of Asian American ethnicity. It is ethically required that no one should cause harm and that anyone who is in a position to prevent harm should do so. This is a moral obligation that requires no legal enforcement.
Secondly, one of the sources of law is the legislature. Before passing a bill into law, the legislative process of scrutiny provides the opportunity for a decision to be made based on high quality information, which is true and acceptable. However, in the case of CSA -5, the main proponent based the argument for the amendment on information regarded as false as it differs significantly from the actual information at hand. The legislators have a right to information, while the senator has the right of speech. However, in exercising his right of speech, he should not infringe on other peoples’ rights through provision of wrong information with the intent to gain support. Besides being constitutionally unacceptable, this also borders on the unethical. It is morally wrong to obtain the desired end through manipulation such as that involved in lying since the act itself is wrong.
The main reason that has been quoted by groups opposed to the SCA -5 Amendment as the basis for their opposition is that it is contrary to the 14th Amendment which provides for equal protection of all people within the jurisdiction of the state. This same amendment forbids any form of discrimination against any individual whether by another individual or by the state (Anonymous 1). SCA 5 goes against this amendment by suggesting that admissions into institutions of higher learning be based on race, sex and ethnicity amongst other discriminatory factors.
From the constitutional point of view, the first amendment gives the bill of rights. One of the fundamental rights included in the bill is the right of speech. It is clearly stated that everyone has the freedom to say whatever he or she wants. However, this freedom is also associated with personal responsibility for the impacts of the words said. For instance, although Senator Hernandez had the right to speak, which can also be translated to the right to write his opinion, he is responsible for any harm that his words could have caused. Deontological perspectives to ethics assert that any action is morally wrong if the action itself is wrong regardless of the outcome or the intended gain. Consequently, Senator Hernandez providing wrongful information knowingly translates to a moral wrong regardless of the intended benefits.
Ethically, the amendment of the proposition 209 to allow educational institutions to consider race in their admissions may be morally acceptable based on the desired outcome or intent. In the case of SCA – 5, the intention of the proponent was to ensure diversity in the educational institutions. It remains a question of ethical acceptability. As in which is more right between denying someone a chance to access higher education due to his/ her race; and allowing so many people of the same race chances in a national institution that should be representative of the national demographics? The opponents of the bill refer to the former as injustice and abusive of the individual rights of those denied the chance. It is suggested that besides race, there are other factors that should be considered to achieve the desired diversity without discrimination.
According to Consequentialism theory, an action is morally right if it produces a good outcome. In this case, the description of the outcome depends on who is asked. For instance, passing the bill would result in a diversification of the student body. However, the desired end is achieved at the expense of other potential students of different races hence the good aspect of the bill is not felt by many. This makes the bill wrong ethically. On the other hand, since the action of passing the bill itself is not wrong, deontological theorists would consider it ethically upright.
SCA -5, had it been enacted, would have resulted in observable harm to the victims of discrimination. In this case the Asian Americans. By denying deserving students the chance to acquire the desired education, emotional and mental harm could have resulted. This outcome is neither desirable, nor good. Thus the theory of Consequentialism would confirm that the bill is unethical.
Finally, the 14th Amendment also gives directions on when it is acceptable to use discriminatory procedures. It is clearly stated that discrimination is only allowed when the intent is beneficial to all, and it is to be carried out only over specified time duration. An extension of the discriminatory tendencies into a law makes them permanent hence in contradiction to the 14th amendment.
The SCA-5 Amendment was intended to address genuine concerns regarding the education institutions’ admission procedures. However, it focused not on the primary problem which needed to be solved, but rather on the impacts of the key issues (Huang 3). Consequently, passing the bill into law could have been ethically unacceptable as it would deny qualified students the chance of joining higher education institutions without actually addressing the issues of institutional diversity. The proposition by the bill opponents to handle the underlying issues without racial discrimination was therefore well founded.
Anonymous. Why we Must stop the Hernandez proposition. 2014. http://www.zhenzhubay.com/../da297a1.pdf
Committee of 100. The Committee of 100 Opposes SCA-5, Calls for Constructive Dialogue. New York: Committee 100, 2014. http://www.committee100.org.
Hernandez Edward et al. Senate Constitutional Ammendment No. 5. December 2012 http://www.leginfo.ca.gov/pub/13-14/bill/sen/sb_0001-0050/sca_5_cfa_20130816_110047_sen_comm.html
Huang, Haibo. “No to Racism! No to SCA5!” Message to AsAm Legislators in the California Assembly. E-mail. http://www.ewa.org/sites/main/files