California Banned Affirmative Action in 1996. Inside the UC Struggle for Diversity

For nearly half a century, the University of California has been at the center of national debates over affirmative action and who is entitled to coveted seats in the premier public higher education system.

In 1974, after Allan Bakke, a white applicant, was rejected from the UC Davis medical school, he alleged reverse discrimination and sued, becoming the namesake of a landmark U.S. Supreme Court case curbing racial quotas. In 1995, UC regents voted to eliminate affirmative action and one of them, Ward Connerly, championed a successful campaign a year later to pass Proposition 209, the nation’s first ballot initiative to ban consideration of race and gender in public education, hiring and contracting. Over the last decade, California legislators have launched at least three attempts to restore affirmative action in college admissions — all have failed.

As the U.S. Supreme Court opens oral arguments Monday on whether to strike down affirmative action in cases involving Harvard and the University of North Carolina, UC’s long struggle to bring diversity to its 10 campuses offers lessons on the promise and limitations of race-neutral admission practices.

The Californiatakeaway: Nothing can fully substitute for affirmative action practices that allow universities to admit a diverse student body, including using income and parent educational levels as proxies for race. But after passage of Proposition 209 touched off UC’s 25-year slog of trial and error — plus a massive investment of more than a half-billion dollars on diversity measures — a meaningful difference can be made.

“While California has not identified a really effective policy to promote diversity other than affirmative action, it has shown experimentation is beneficial for targeted students,” said Zachary Bleemer, a Yale University assistant professor of economics and research associate at the Center for Studies in Higher Education at UC Berkeley. “And so it’s worth it.”

UC President Michael V. Drake and all 10 chancellors have submitted an amicus brief in support of Harvard and UNC’s affirmative action policies. Calling UC a “laboratory for experimentation” on using race-neutral measures to promote diversity, the university leaders said that decades of outreach programs to low-income students and re-crafted admissions policies have fallen short.

“Those programs have enabled UC to make significant gains in its system-wide diversity,” the brief said. “Yet despite its extensive efforts, UC struggles to enroll a student body that is sufficiently racially diverse to attain the educational benefits of diversity.”

For some private universities, which are allowed to use affirmative action, the looming high court decision is causing consternation. Many experts predict the court’s conservative majority will strike down race-based preferences in a case that could affect not only higher education, but potentially the workplace as well.

“You are talking about the devastation of the American admissions process for students of color, full stop,” said Pomona College President G. Gabrielle Starr. “Affirmation action is hands down the best tool we have for maintaining racial and ethnic diversity in colleges in the United States.”

Initially, Proposition 209 drastically reduced diversity at UC’s most competitive campuses. In 1998, the first admissions year affected by the ban, the number of California Black and Latino first-year students plunged by nearly half at UCLA and UC Berkeley. William Kidder, a UC Riverside civil rights investigator, recalled his shock when he entered UC Berkeley law school in 1998 and found that his first-year class of 270 included only six or seven Black students, compared with four times that many in the class two years ahead of him enrolled before Proposition 209.

“The lack of diversity in the classroom had a negative impact on my learning as a student,” said Kidder, who is white. “The range of viewpoints and quality of discussion about ideas were inhibited.”

California State University’s 23 campuses did not lose nearly as many Black and Latino students as UC did, and the system’s enrollment today nearly fully reflects the state’s diversity. Among its 422,391 undergraduates in fall 2021, 47% are Latino, 21% white, 16% Asian and 4% Black.

That closely mirrors the demographics of the state’s 217,910 California high school students who met UC and CSU eligibility standards in 2020-21: 45% are Latino, 26% white, 16% Asian and 4% Black. CSU’s wider access, more affordable price tag and greater ease of commuting from home may be some reasons behind the greater diversity.

But diversity varies, with proportions of Latino and Black students lower at several of the more selective CSU campuses. At Cal Poly San Luis Obispo — with a 31% admission rate in fall 2021 — 53% of undergraduates are white, 19% Latino, 14% Asian and 1% Black. At Cal State Los Angeles — with an 80% admission rate — 72% of students are Latino, 11% Asian, 4% Black and 4% white.

“While Proposition 209 promoted race neutrality in university student recruitment, admissions, financial aid, student academic support and employee hiring, the policy has made it more challenging to erase equity and opportunity gaps that exist in the CSU,” the university said in a statement. “Despite the challenges that have resulted, the CSU has continued to serve significant numbers of students from underrepresented communities over the years and we continue outreach efforts to provide access to students who are Black, indigenous or people of color and provide support once they are enrolled in the university.”

UC enrollment still does not fully reflect the state’s racial and ethnic makeup — falling particularly short with Latinos, who made up just 30% of the system’s 189,173 California undergraduates in fall 2021. Students of Mexican heritage are by far the largest undergraduate ethnic group, however.

But campuses are making notable strides. Black and Latino students increased to 43% of the admitted first-year class of Californians for fall 2022 compared with about 20% before Proposition 209. For the third straight year, Latinos were the largest ethnic group of admitted students at 37%, followed by Asian Americans at 35%, white students at 19% and Black students at 6%.

Click here to read the full article in the LA Times

Barbara Boxer: Time to ‘Introduce Articles of Impeachment’ Against Clarence Thomas

Former Sen. Barbara Boxer (D-CA) said Friday on MSNBC’s “The Beat” that it is time to “introduce articles of impeachment” against Supreme Court Justice Clarence Thomas.

Boxer was discussing Thomas’ ruling against releasing documents to the House Select Committee investigating the January 6, 2021, riot at the U.S. Capitol in light of reports his far-right activist wife texted then-chief of staff Mark Meadows about overturning the 2020 presidential election.

Boxer said, “I looked at it from the lens of someone who served on the Bipartisan Ethics Committee in the Senate for many years. I was chair and co-chair for all those years. I would say this, I thought if Clarence Thomas had been a Senator and his wife was texting the president’s chief of staff about overturning democracy, Clarence Thomas, if he were a senator, would have been thrown out of the Senate if he knew about it and did not recuse himself from the case.”

She continued, “Even though in our history only one Supreme Court justice has been impeached, that was in 1804, I still think it would be good for someone to introduce articles of impeachment, to lay out this abuse of power for everyone to see.”

Host Ari Melber said, “You’re saying, though, that your read here is, this is a potentially impeachable issue for Justice Thomas?”

Click here to read the full article at BreitbartCA

Why I think Jackson’s Nomination Should Be Rejected

I went into the confirmation hearings for Supreme Court nominee Ketanji Brown Jackson thinking that she should be confirmed — and would be, by a wider margin than most people expected. I finished the week believing that Jackson’s nomination should be rejected and that Democratic senators and President Biden had made a serious error by not taking seriously enough Jackson’s record of imposing light sentences in child pornography cases.

When I asked Sen. Lindsey O. Graham (R-S.C.) what he had taken away from the hearings, he replied that Jackson is “a nice person, has an accomplished background, but when it comes to judging, I’ve learned several things that are incredibly unnerving.”

Chief among these — for Graham and for me — was the three-month sentence for possession of child porn that Jackson gave to Wesley Hawkins. (Jackson’s sentence also included three months of home detention and six years of supervision.) But there were other controversial sentences rendered by the judge — and all of them are facts, not made-up allegations.

“It’s not the sentence she gives in child pornography cases,” Graham told me. “They’re always on the low end, and that is disturbing. But what I learned is that this judge will not consider as a sentence enhancement the fact that the perpetrator … went on the Internet to pull down the images, and the more images the person pulls down doesn’t count in her world.”

Graham also brought to my attention this newspaper’s editorial, which compared Jackson’s hearings unfavorably to the slanderous assault in 2018 on then-nominee Brett M. Kavanaugh. That comparison is ludicrous in part because, as conservative pundit Guy Benson pointed out on Twitter, every Democratic member of the Senate Judiciary Committee demanded Kavanaugh’s nomination be withdrawn, in part because of the outrageous allegations of drugging women at parties that were allowed to be made against Kavanaugh by Julie Swetnick and her lawyer Michael Avenatti, who is now in jail from an unrelated extortion case.

Whether or not one believes Christine Blasey Ford’s allegations of assault on her by Kavanaugh while in high school — and I do not — the attacks on Kavanaugh came after Sen. Dianne Feinstein (D-Calif.), who was the top Democrat on the committee, sat on the allegations for weeks and failed toimmediately share them with the committee, the Senate or the nominee.

No, the two sets of hearings aren’t even in the same universe.

But it’s hardly a revelation that the Kavanaugh outrage remains a scarlet wound on the reputation of the Senate Judiciary Committee. Republicans want nothing to do with attacks on nominees based on alleged acts from long ago, or from high school yearbooks and the like. The battle to redefine what happened in the Kavanaugh hearings will go on, just as it still rages on about the Clarence Thomas hearings in 1991.

The GOP did use the Jackson hearings to again revisit the wrongs done to Janice Rogers Brown, a Black California Supreme Court justice who was confirmed to the U.S. Court of Appeals for the District of Columbia Circuit only after a two-year filibuster by Senate Democrats. Judicial politics are now all about memories.

That’s partly because the Judiciary Committee is the front line of the culture war. And it is partly because the left is losing ground in America. And so, it must hold on to whatever turf it has, particularly in the judiciary.

Click here to read the full article at the Washington Post

California Lawmakers, Abortion Proponents Unveil Plan To Create Abortion Sanctuary State

Recommendations include funding abortion groups, funding support infrastructure at abortion clinics, improving Medi-Cal abortion policies

Dozens of California abortion clinics, pro-abortion groups, and lawmakers in favor of abortion presented a plan Wednesday to make California a sanctuary state for those wanting abortions in case the landmark Roe v. Wade is overturned by the U.S. Supreme Court next year.

Abortion has been legal in the United States since 1973 when the U.S. Supreme Court ruled in Roe v. Wade that women have the right to an abortion without state interference within the first trimester of a pregnancy. Despite a few challenges and alteration challenges in the last 48 years, the wording was only changed once. 1992’s Planned Parenthood v. Casey changed the first trimester wording to fetal viability. Since then, it has been worded as “A person may choose to have an abortion until a fetus becomes viable, based on the right to privacy contained in the Due Process Clause of the Fourteenth Amendment. Viability means the ability to live outside the womb, which usually happens between 24 and 28 weeks after conception.”

However, in recent years, a number of states have passed restrictive abortion laws, such as the Texas Heartbeart Act, which virtually ends nearly all abortions in the state after six weeks due to a detected heartbeat. Another case, Dobbs v. Jackson Women’s Health Organization, challenges a 2018 Mississippi law that banned abortions after 15 weeks.

The Supreme Court also reached a definitive conservative majority last year following Amy Coney Barrett being confirmed as the next Justice in place of Ruth Bader Ginsburg, who had died in October 2020.

Now, with the Supreme Court giving indications that they would rule in favor of the state and ban abortions once again to some degree in the Dobbs case, with the most likely outcome kicking abortion laws back to the states, Californian abortion supporters are now putting a plan in place to welcome the influx of women seeking a legal abortion.

According to a report by the California Future of Abortion Council, 26 states would likely see abortion bans if Roe v. Wade is overturned, including Texas, Utah, Ohio, Michigan, Arizona, Idaho, Montana, and Florida. As California has a large number of reproductive clinics and a mostly non-harassment environment from protestors, the number of women estimated to come to California for abortions will go from the current 46,000 a year to 1.4 million a year, with the largest number likely to come from Arizona.

However, California abortion and reproductive care currently has many barriers for women seeking treatment coming from outside the state, including the long drive times to the state, high costs for things such as co-pays and deductibles, and difficulty in finding more specialized providers. An influx of Texas patients this year in California due to the new Texas law highlighted highlighted the potential issues of a sudden influx, and showed the areas where California needs improvement. With demand likely to go up by astronomical numbers should Roe v. Wade falls, California abortion groups and lawmakers started coming up with a plan on Wednesday to address this issue.

California’s sanctuary state plans

The California Future of Abortion Council’s report specifically has 45 recommendations for the state in a sanctuary capacity, including funding many abortion groups to provide care, funding support infrastructure at abortion clinics, improving Medi-Cal abortion policies, give more protections to those seeking abortions, and even help fund travel, lodging, and procedure costs for those otherwise unable to afford the procedure. The recommendations, written largely by abortion provider experts and lawmakers, such as Senator Toni Atkins (D-San Diego),

“We’re looking at how to build capacity and build workforce,” noted Planned Parenthood Affiliates of California CEO Jodi Hicks on Wednesday. “It will take a partnership and investment with the state.”

However, those opposing abortion in California plan to push back against those recommendations should they be enacted.

“We know that we aren’t going to get California to ban abortion should Roe be overturned,” explained Kathy Weber, a San Bernardino County anti-abortion group leader who assists women who choose to give birth after previously wanting an abortion. “Not the way the state is now. But we can try and stop the state from outright paying people to come here or to loosen laws here even more.”

“But it has been hard recently, especially with the Texas surge of people coming into California for abortions. When neighboring states get bans and California getting this huge influx as sort as an abortion-vacation destination like how many Americans go to Mexico to get dental work, this will be a big problem.”

“We don’t want California’s new growth industry to be abortion clinics.”

Proponents of the recommendations are currently eyeing multiple funding sources, including the state’s projected $31 billion surplus, for next year.

This article was originally published by the California Globe

Defending Direct Democracy and Defending Taxpayers


vote ballotsThe powers of direct democracy — initiative, referendum and recall — are powerful tools to control slow-moving or corrupt politicians. These powers are enshrined in the California Constitution for reasons that are just as compelling in 2019 as they were in 1911 when Gov. Hiram Johnson, seeking to suppress the absolute control the railroads had over the state Capitol, pushed to give ordinary citizens a “legislative battering ram” — using the language of the Supreme Court — to address issues that for whatever reason the Legislature refuses to address.

Political elites hate the initiative process. From their perspective it allows the great unwashed and unsophisticated to deal with matters such as taxation, victims’ rights, insurance and most importantly political reform. These are issues over which politicians strongly desire to exercise a legislative monopoly.

Like any political process, however, direct democracy can be abused. Some matters are indeed complicated and not well suited to a sound-bite campaign. Also, special interests with a lot of money can overwhelm the airwaves with TV and radio ads to convince a majority of voters (especially in a low-turnout election) to pass something they might later regret. Nonetheless, for taxpayers, direct democracy remains one of the few tools we have to protect ourselves.

Landmark initiative measures such as Propositions 13 and 218 have given taxpayers the kind of protection against greedy government entities that we would never have obtained but for rights granted through direct democracy. But taxpayers must do more than propose initiatives and convince voters to enact them. We must also defend them in court against never-ending assaults. For years, the Howard Jarvis Taxpayers Association has maintained a potent litigation capacity with three full-time lawyers and access to dozens more willing to defend not just taxpayer-sponsored initiatives but the very power of direct democracy itself.

And so it is that HJTA finds itself back before the California Supreme Court on an important direct democracy case.

To read the entire column, please click here.

Eight big problems for Christine Blasey Ford’s story


Supreme CourtChristine Blasey Ford’s allegations against Brett Kavanaugh are serious. She is accusing him of violent attempted rape. “I thought he might inadvertently kill me. He was trying to attack me and remove my clothing,” she told The Washington Post, recounting the alleged incident at a high school party “one summer in the early 1980s.”

But her story is also growing less believable by the day. Here are eight reasons why it’s hardly “anti-woman” for senators to question her account at Thursday’s hearing:

1) For starters, Ford still can’t recall basic details of what she says was the most traumatic event in her life. Not where the “assault” took place — she’s not sure whose house it was, or even what street it was on. Nor when — she’s not even sure of the year, let alone the day and month.

Ford’s not certain how old she was or what grade she was in when she says an older student violently molested her. (But she doesn’t plead inebriation: She described having just “one beer” at the party.)

2) Ford concedes she told no one what happened to her at the time, not even her best friend or mother. That means she can rely on no contemporaneous witness to corroborate her story. …

Click here to read the full article from the New York Post

The Unions Keep Rigging the Rules as Workers Sue Them

Unions2The public employee unions have not been at all contrite since their 41 year run of legalized theft came to an abrupt halt. On June 27th, the Supreme Court overturned 1977’s abysmal Abood v. Detroit Board of Education decision and ruled for Mark Janus, thus freeing government workers from all forced union payments. But, ahead of the SCOTUS decision – pretty much a forgone conclusion – the union wheels were already grinding away, notably in California where a bevy of bills that attempt to re-rig the rules in favor of organized labor are currently going through the legislative process.

California’s creepy AB 119, already law, gives government unions access to all workers’ personal contact information and requires new hires to attend a mandatory union “orientation” meeting, during which a captive audience is harangued about the joys of union membership. A companion bill, AB 2970, would prohibit government agencies from publicly disclosing information about the new employee orientations. Some organizations like the Freedom Foundation and the Mackinac Center, you see, are trying to counter the union spin by contacting public employees. Like all good totalitarians, however, the unionistas are doing their utmost to stifle free speech.

In another anti-free speech, Big Brotherly move, the unions are behind an attempt to expand existing law that prohibits an employer from “deterring or discouraging public employees from becoming or remaining members of an employee organization.” AB 2017 would broaden the definition of “public employer” and also prohibit public employers from deterring or discouraging prospective public employees “from becoming or remaining members of an employee organization.”

In a direct slap at taxpayers, SB 1085 would grant leaves of absence, without loss of compensation or other benefits, to allow unionized employees to do union business on work time. Moreover, as provided in this bill, the worker would have a right of reinstatement to the same position and work location held before the leave, “or if this is not feasible, a substantially similar position without loss of seniority, rank, or classification.” While the union would have to compensate the state for any work done for the union, this law clearly could be extremely disruptive to the workplace and quite costly to taxpayers.

SB 550 stipulates that if there is a dispute alleging an employer’s failure to provide wages, benefits, or working conditions and it winds up in court, the employer, if he loses, must pay the union’s attorney’s fees and any other expenses incurred. But the “loser pays” provision only applies to the employer, not the union.

There is much more that the California legislature has been doing to give government unions perks that none of the rest of us could ever dream of. The California Policy Center’s Ed Ring has posted a detailed list of the new and proposed legislation, as has the law firm of Lozano Smith. They can be accessed here and here.

On the other side of the coin, there is worker-initiated litigation, most of which was set in motion before the Janus decision was handed down. In fact, as of this writing there are class action law suits against teachers unions in seven states, including three in California. All the litigation revolves around educators who never wanted any part of a union, but were forced to pay “agency fees” – about two-thirds of a full dues payment – because the union-friendly law in 22 states said they had to. One of the California cases is typical, where six current and former teachers allege that despite refusing to join the union because they disapproved of its political advocacy and collective-bargaining activities, they were still forced to pay a fee to the California Teachers Association as a condition of employment.

And it’s not just the teachers unions that are under fire. Hamidi et al v. SEIU Local 1000, filed by the National Right to Work Legal Defense Foundation (which litigated the Janus case) could force the union to refund money taken from 40,000 California state workers dating back to 2012. The money had been seized from employees who wanted to have no union involvement but were forced to pay some money to them nevertheless. The lawsuit, which includes suing for return of the forced dues payments as well as for compensatory damages, could cost the union $100 million.

While the Janus ruling ended Abood, the door has opened to a new world in which unions are desperately trying to recapture their former status as a very special interest. But at the same time, workers are fed up with union privilege and are determined to fight to get monies forcibly taken from them by an organization they never wanted any part of.

The wheel is in spin and will remain in motion for some time to come.

Larry Sand, a former classroom teacher, is the president of the non-profit California Teachers Empowerment Network – a non-partisan, non-political group dedicated to providing teachers and the general public with reliable and balanced information about professional affiliations and positions on educational issues. The views presented here are strictly his own.

U.S. Justice Foundation: Trump Heralded for Kavanaugh Nomination


Brett Kavanaugh Donald TrumpPresident Donald Trump is being heralded for his nomination of Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy on the United States Supreme Court.

On Tuesday, the United States Justice Foundation, a nonprofit public interest, legal action organization, praised President Trump for Kavanaugh’s nomination, saying that he had delivered on his campaign promise to nominate well-qualified conservative judges that would faithfully follow the Constitution.

“Judge Kavanaugh is an outstanding choice with impeccable credentials,” said James Lacy, a former Reagan Administration General Counsel and a spokesperson for US Justice Foundation. “Judge Kavanaugh’s exceptional record makes clear: he follows the law and does not legislate from the bench.”

An All-American jurist, Kavanaugh currently serves on the Court of Appeals for the D.C. Circuit, where he has established himself as an effective and respected “judge’s judge”. Judge Kavanaugh is also considered mainstream by the legal community – with more than 210 judges citing just 100 of his insightful opinions.

“From the start of his career, he’s applied the Constitution faithfully, even when that made him a lonely voice,” author J.D. Vance wrote in a Wall Street Journal op-ed. “He has done so with particular tenacity on the issue that matters most to the president: taking power away from unelected bureaucrats and returning it to elected officials.”

Judge Kavanaugh: Well-Qualified, Respected by Both Sides of Aisle

Judge Kavanaugh’s strongest support will likely come from the legal community, which has praised him for his work to advance diversity and mentor young lawyers.

“Judge Kavanaugh is the #1 feeder judge of clerks to the Supreme Court. He sends clerks to almost all the justices, on both sides of the aisle — ‘a sign of the deep respect that his possible future colleagues have for him,’” David Lat, founding editor of Above the Law, wrote prior to his nomination.

When President George W. Bush nominated Kavanaugh for the U.S. Court of Appeals, Kavanaugh was initially rated “well qualified” by the American Bar Association. The organization eventually bowed to pressure from liberal special interest groups and downgraded Kavanaugh to “qualified.”

Chairman Steven Tober, then-chairman of the 14-member American Bar Association committee, affirmed that Kavanaugh was “indeed qualified to serve on the federal bench.”  “This nominee enjoys a solid reputation for integrity, intellectual capacity and writing and analytical ability,” he wrote. “The concern has been and remains focused on the breadth of his professional experience.”

After graduating with honors from Yale College in 1987, Judge Kavanaugh graduated from Yale Law School in 1990, where he was a Notes Editor on the Yale Law Journal. He clerked for Justice Anthony Kennedy of the Supreme Court, Ninth Circuit Judge Alex Kozinski, and Third Circuit Judge Walter Stapleton.

“Judge Brett Kavanaugh, President Donald Trump’s new nominee for the Supreme Court, is a whip-smart legal conservative,” National Review editorialized in support of President Trump’s selection. “As a judge in the highest-profile appeals court in the nation, he has shown an exemplary dedication to the rule of law.”

Precedent: Ginsburg Confirmed in 57 Days

Historically, the United States Senate has acted swiftly to confirm nominees of Kavanaugh’s caliber and qualifications. In 1993, Ruth Bader Ginsburg, Bill Clinton’s liberal choice to replace Justice Byron White, was confirmed in just 57 days and by a bipartisan 96-3 vote.

Democrats are unlikely to extend the same courtesy to Kavanaugh. According to a recent US Justice Foundation report, Democrats are politicizing the independent judiciary with excessive delays of a diverse cohort of judicial appointments.

“After a historic first year of reforming the judiciary, President Donald J. Trump’s supremely-qualified judicial nominees are now stuck in the swamp,” the USJF concluded in its June 2018 report, “America Needs Great Judges”. “Swamp politics are harming the American people by delaying the swift and independent administration of justice.”

Advice and Consent: Resistance Opposed Before Kavanaugh Finished Speaking

Under Article II, Section 2 of the Constitution, the President “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”

 Yet, members of the anti-Trump Resistance are unlikely to faithfully uphold their constitutional obligations. It took California’s far left U.S. Senator Kamala Harris less than 20 minutes to announce her opposition to Kavanaugh’s nomination to the Supreme Court.

“Trump’s Supreme Court Justice nominee, Judge Kavanaugh, represents a direct and fundamental threat to the rights and health care of hundreds of millions of Americans,” Harris tweeted minutes after Kavanaugh’s nomination. “I will oppose his nomination to the Supreme Court. #SCOTUSpick.”

An attack website, Stopkavanaugh.com, was registered anonymously on June 28 and had moved into full attack mode before Kavanaugh could even finish speaking at his nomination announcement. The website is funded by the far-left extremist special interest group, Demand Justice.

Other members of the left wing resistance expressed hope that Kavanaugh’s nomination could be derailed.

“The fluke of good fortune would be for Kavanaugh to turn out, over the course of hearings, to be such a fiasco of a choice that even Republicans would defect,” T.A. Frank, a Vanity Fair contributor, wrote. “Maybe Kavanaugh turns out to be in a cult that requires, say, punching horses in the face, and claims and counterclaims run for months.”

A Catalog of California’s Anti-Janus Legislation    


School union protestNo state in America is as firmly in the grip of public sector unions as California. For nearly 20 years, they have exercised nearly absolute power in the state Legislature. Over the past few years, as they have slipped in and out of having a two-thirds majority, and often with the help of a few Republican legislators, they have been able to pass legislation at will, sometimes within days.

Government union power in California derives from their ability to automatically collect over $1 billion per year in dues from payroll departments of state and local agencies, combined with their ability to compel well over 1 million state and local government employees working within any of their over 6,000 bargaining units to pay these union dues.

While it is legally possible for these government employees to opt out of formal union membership and only pay so-called “agency fees,” the process to opt-out is deliberately rendered tedious and intimidating, and in any case agency fees usually are around 80% of the total dues.

The Janus vs. AFSCME case threatens public sector union power in California and dozens of other states, because, depending on the ruling, it may permit public employees to opt-out of paying any dues at all, including agency fees. But if unions made it difficult and intimidating for government employees to opt-out of paying the full union dues, i.e., if they made it difficult for these employees to get a 20% discount, imagine how difficult they’re going to make it for employees to get a 100% discount.

What the unions can do in Sacramento changes every day. But insofar as a Janus ruling could come down from the U.S. Supreme Court any day, it is appropriate to delve into a bit of wonkiness, and list every recently enacted and pending law, backed by unions, that California’s legislature is compliantly handing down in order to thwart the intent of the Janus plaintiffs.

CALIFORNIA’S ENACTED ANTI-JANUS LEGISLATION

AB-83 Collective bargaining: Judicial Council – enacted

This bill permits unionization of Judicial Council staff, something previously off-limits. Here’s what they do, quoted from their website: “The Judicial Council is the policymaking body of the California courts, the largest court system in the nation. Under the leadership of the Chief Justice and in accordance with the California Constitution, the council is responsible for ensuring the consistent, independent, impartial, and accessible administration of justice. Judicial Council staff implements the council’s policies (italics added).” Unionized judicial council staff – what could possibly go wrong?

SB-201 Higher Education Employer-Employee Relations Act: employees – enacted

This bill permits students who have jobs at the schools they attend to unionize. This will, of course, allow the unions to collect their cut from yet another category of public payroll, but it will also offer them another avenue to indoctrinate students, since they aren’t already getting enough indoctrination from our public schools and universities.

SB-285 Public employers: union organizing – enacted

This goes straight at the heart of Janus. Layering on top of existing federal law but making it even more explicit and restrictive, this bill would prohibit a public employer from deterring or discouraging public employees from becoming or remaining members of an employee organization. Employers are already forced to be extremely careful how they communicate the pros and cons of unionization, but now they’ll be even more hamstrung, while the unions have full access to employees to argue and advocate their position. Worse, this bill would grant the Public Employment Relations Board jurisdiction over alleged violations of its provisions instead of the courts. This board, PERB for short (see footnotes; “PERB Board”), is stacked with labor activists and is very unlikely to ever rule in favor of a public employer vs. a union.

SB-550 Public school employment: meeting and negotiating: legal actions: settlement offer: attorney’s fees – enacted

In this law, from now on, if a union makes an offer to settle a dispute alleging an employer’s failure to provide wages, benefits, or working conditions, and if the employer does not accept the offer and fails to obtain a more favorable judgment, the employer must pay the union’s attorney’s fees and expenses incurred after the offer was made. Note this “loser pays” provision only applies to the employer, not the union. This legislation puts tremendous pressure on agencies to agree to union demands in order to avoid court, especially those smaller agencies, cities and counties that don’t have deep pockets like the unions.

CALIFORNIA’S PENDING ANTI-JANUS LEGISLATION

AB-1937 Public employment: payroll deductions – passed Assembly

This bill appears to be designed to prevent local jurisdictions from enacting measures that might expedite an individual employee’s decision to stop paying union dues. Reading through the introductory text of the bill, here is a key excerpt: “…the bill would authorize employee organizations and bona fide associations to request payroll deductions and would require public employers to honor these requests. The bill would authorize public employers to make rules and regulations for the administration of specified payroll deductions, subject to meeting and conferring with the applicable employee organizations.” Notice that it is the union, not the employee, who will notify the employer to start dues deductions, and notice that any rules the employer may wish to apply to the administration of union dues deductions has to be cleared (meet and confer) with the union.

AB-2017 Public employers: employee organizations – passed Assembly

Similar to SB 285, This bill broadens the definition of employer to “those employers of excluded supervisory employees and judicial council employees.” It then “prohibits a public employer from deterring or discouraging prospective public employees, as defined, from becoming or remaining members of an employee organization.” The operative words are discourage and deter, which can be quite broadly interpreted. For example, even an employer stating that an employee does not have to join a union might “deter” them from doing so. The intent of this bill is to deter employers from saying anything to employees about unionization, with no such restrictions on the unions.

AB-2049 Classified school and community college employees: payroll deductions for employee organization dues – passed Assembly

Similar to AB 1937, but even more explicit, “this bill would authorize school districts and community colleges to rely on labor unions when determining whether a request to discontinue payroll deductions for union dues is in conformity with the requirements established in the initial payroll deduction authorization.” The intent is to make it harder to get out of paying union dues by adding layers of union bureaucracy to the process.

Concurrent with ensuring the union, and not the agency, has the final say in suspending dues withholding, the unions are revising these “initial payroll deduction authorizations.”

Take a look at this photo of a union contract (below). Note how it states “this authorization shall renew annually, irrespective of my membership status,” and “a revocation must be mailed… postmarked between 75 days and 45 days before such annual renewal date.” There are at least two gotchas here. First, automatic renewal of payroll deductions “irrespective of membership status” means that someone wanting to stop paying union dues has to opt out every year. Second, if they neglect to opt-out, via mail within the exact window of time and in advance of the automatic renewal, they will have to pay dues for another year.

No wonder the unions want themselves, and not the agency, to have the ability to say whether dues will stop being withheld. In any city or county with local elected officials willing to stand up to their unions (admittedly a rare occasion), ordinances could be passed allowing an employee to simply inform their payroll department that they don’t want to pay union dues. That will be impossible under these laws.

The Hotel California Contract – You Can Check In, But Checking Out…

AB-2886 Public Employee Relations Board: Orange County Transportation Authority: San Joaquin Regional Transit District – passed Assembly

Because the above named agencies were not previously required to resolve labor disputes using the Public Employment Relations Board (PERB), this bill changes that so they will have to use PERB. By moving the dispute resolution process out of the courts and instead putting them under the jurisdiction of PERB, the unions improve the probability of winning these disputes.

AB-3034 Public transit employer-employee relations: San Francisco Bay Area Rapid Transit District – passed Assembly

This bill, similar in concept to AB 83 and SB 201, allows the unions to collect their cut from yet another category of public payroll, in this case BART supervisors, by allowing them to unionize.

SUMMARY OF ANTI-JANUS LEGISLATION

So in response to Janus, California’s unions representing public servants are doing the following:

1 – Expanding the pool of public employees eligible to join unions – AB 83, SB 201, and AB 3034

2 – Making it difficult, if not impossible, for employers to discuss the pros and cons of unionization with employees – SB 285 and AB-2017

3 – Precluding local governments from unilaterally honoring employee requests to stop paying union dues – AB 1937 and AB-2049

4 – Making employers pay union legal fees if they lose in litigation but not making unions pay employer costs if the unions lose – SB 550

5 – Moving the venue for dispute resolution from the courts to PERB, which is stacked with pro-union board members – SB 284 and AB 2886

This catalog of countermeasures to Janus is undoubtedly incomplete. A few enacted in 2017 have probably slipped under our radar, and there will be many more crafted in the coming months and years, especially if there is a strong ruling in favor of the plaintiff. But California’s unions have been doing this for years. Whether it’s charter schools, “release time,” transparency in government, charter cities, public education reform, budget and tax issues, project labor agreements, or pension reform, the agenda of the union always comes first in Sacramento.

When it comes to protecting the government union agenda in California, pro-union legislation is fast and furious, belying the more common political reality of gridlock.

*   *   *

FOOTNOTES

California’s Public Employment Relations Board – 2018, at least 3-2 stacked for unions 

The three:

  • Arthur A. Krantz “represented unions, employees and nonprofits in litigation, arbitration and administrative cases, and he worked on law reform, organizing, negotiation, and strategic campaigns to effect social change. Krantz did this work as an associate and partner at Leonard Carder, LLP.” San Francisco based Leonard Carder, LLP‘s home page states: “As one of the oldest and most renowned law firms representing labor unions and employees, Leonard Carder’s focus is to provide top-flight legal representation to the labor movement.”
  • Priscilla Winslow‘s “career in public sector labor law spans over 30 years, during which time she served for 15 years as Assistant Chief Counsel for the California Teachers Association where she litigated and advised on a variety of labor, education, and constitutional law issues.”
  • Eric Banks “served in multiple positions at the Service Employees International Union, Local 221 from 2001 to 2013, including Advisor to the President, President, and Director of Government and Community Relations.”

The other two:

  • Erich Shiners: “Prior to his service on the Board, Erich Shiners represented and advised public agency employers in labor and employment matters, including many cases before PERB. Most recently he was Senior Counsel at Liebert Cassidy Whitmore.” Liebert Cassidy Whitmore represents itself as California’s preeminent public management employment law firm with over 80 attorneys in five offices.
  • Mark C. Gregersen‘s “career in public sector labor relations spans over 35 years. Prior to his appointment to the California Public Employment Relations Board, he has served as director of labor and work force strategy for the City of Sacramento and director of human resources for a number of California cities and counties.”

REFERENCES

Funding the Post-Janus Fight Against Government Unions, May 2018

Janus vs AFSCME Ruling Imminent – What will Change?, May 2018

A Post-Janus Agenda for California’s Public Sector Unions, February 2018

After Janus, Will Union Grassroots Members Assert their Political Voice?, December 2017

How Can Local Officials Prepare for the Upcoming Janus vs AFSCME Ruling?, October 2017

Another Supreme Court Loss for Becerra Looming – Abortion


The Supreme Court seems likely to strike down a California law that mainly regulates anti-abortion crisis pregnancy centers.

Both conservative and liberal justices voiced skepticism Tuesday about the law that requires the centers to tell clients about the availability of contraception, abortion and pre-natal care, at little or no cost. Centers that are unlicensed also must post a sign that says so.

The centers say they are being singled out and forced to deliver a message with which they disagree. California says the law is needed to let poor women know all their options.

Similar laws also are being challenged in Hawaii and Illinois.

At different points in the arguments, liberal Justices Elena Kagan and Sonia Sotomayor said they were troubled by aspects of the California law.

Kagan said it seemed that the state had “gerrymandered” the law, a term usually used in the context of redistricting, to target the anti-abortion centers. Sotomayor said there was at least one instance dealing with unlicensed centers that seemed “burdensome and wrong.”

Click here to read the full article from the Associated Press