This story originally published online at N.C. Policy Watch.

Senate leader Phil Berger said the Senate will propose a state constitutional amendment similar to a California ballot initiative that triggered a decline in underrepresented minority students earning undergraduate and graduate degrees and resulted in fewer public contracts going to minority- and women-owned businesses.

At news conference Wednesday centered on critical race theory in public schools, Berger said the Senate would propose a constitutional amendment similar to what were called civil rights initiatives in California and Michigan.

California in 1996 passed a constitutional ban on affirmative action in school admissions and public contracting. The proposed North Carolina constitutional amendment in Berger’s Medium post is identical to the California amendment language:

“The state shall not discriminate against, or grant preferential treatment to, an 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.”

Berger, a Republican, said the intent was for the proposed amendment to appear on the next primary ballot.

The president of the North Carolina NAACP, in a statement, condemned the proposal.

“The continued frontal assaults on humanity levied by the rogue leader of the Senate is evidence of a man leading from his fears,” said the Rev. Dr. T. Anthony Spearman.  “It is apparent that the more wrenches he can toss into an already broken democratic system the better off he thinks they are. Perhaps this will be the catalyst that will cause the eyes of NC to pop open and exercise their right to vote.”

Gov. Roy Cooper, a Democrat, signed an executive order in 2017 stating a goal of obtaining 10% of state purchases from historically underutilized businesses. The order also established an advisory council on under-utilized businesses.

A 2015 study for the Equal Justice Society found that the California amendment resulted in a minority- and women-owned businesses losing $1 billion to $1.1 billion a year in state and local contracts, in 2015 dollars.

Students for Fair Admissions is suing UNC-Chapel Hill in federal court for  considering race in admissions. UNC-Chapel Hill considers race as one of many factors, according to the university.

Edward Blum, an affirmative-action opponent, started Students for Fair Admissions. It is also suing  Harvard University. The First Circuit Court of Appeals upheld Harvard’s admissions process in a decision last November.

A federal District Court judge held a hearing in the UNC-Chapel Hill case last year.

The NC Justice Center is co-counsel representing alumni of color who have intervened in the lawsuit. NC Policy Watch is a project of the NC Justice Center.

After California passed its ban, applications by Black, American Indian, Chicano, and other Latinos to University of California schools dropped, according to a 2015 study by authors at UC-Riverside and the Civil Rights Project at UCLA.

Most under-represented minority students became at least 40% less likely to be admitted to the more selective UC-Berkeley and UCLA campuses, according to a 2020 study from an economist with the Center for Studies in Higher Education at UC-Berkeley. That started a cascade of under-represented minority student enrollment in less-selective colleges.

“Prop 209 caused a substantial decline in the number of high-earning early-career URM Californians that persists more than 20 years later,” the study concluded.

If North Carolina were to ban consideration of race, admissions of students of color would decline at UNC-Chapel Hill,  said Jack Holtzman, an NC Justice Center attorney.

UNC does not use a quota system, he said.

“No specific seats are reserved. That is long gone. Everybody is reviewed with the same process. It is a matter of whether a university would be allowed to look at the whole student, including whether they have experienced racism,” he said.

Experiencing diversity at the university “is part of the complete education of our students,” he said.

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