harm

SACRAMENTO — Gov. Gavin Newsom on Monday vetoed legislation that would have allowed public and private colleges to provide preferential admissions to applicants directly descended from individuals who were enslaved in the United States before 1900.

The governor thanked the bill’s author for his commitment to addressing disparities and urged educational institutions to review and determine “how, when, and if this type of preference can be adopted.”

“This bill clarifies, to the extent permitted by federal law, that California public and private postsecondary educational institutions may consider providing a preference in admissions to an applicant who is a descendant of slavery,” Newsom wrote Monday in his veto. “These institutions already have the authority to determine whether to provide admissions preferences like this one, and accordingly, this bill is unnecessary.”

The legislation would not have required applicants to belong to any particular race or ethnicity — a crucial detail that proponents said distinguished it from affirmative action, which is banned at California colleges. Critics, however, argued the term “slave” was used as a proxy for race.

Legal experts told The Times last month the measure probably would have faced challenges in court if the governor signed it into law.

“The question with this sort of provision is does this count as on the basis of race?” said Ralph Richard Banks, professor at Stanford Law School and the founder and faculty director of the Stanford Center for Racial Justice. “A secondary issue is going to be whether, even if it is not formally about racial classification, was it really adopted to get around the no-racial-classification rule? The law prohibits indirect methods of doing something that would be prohibited if you were to do it directly.”

Race-based college admissions are banned by federal and state law.

Proposition 209, which California voters approved nearly three decades ago, amended the state Constitution to bar colleges from considering race, sex, national origin or ethnicity during admissions. The U.S. Supreme Court in 2023 in effect ended race-conscious college admissions nationwide, ruling in Students for Fair Admissions vs. Harvard that such policies violate the equal protection clause of the 14th Amendment.

California became the first state government in the country to study reparations, efforts to remedy the lingering effects of slavery and systemic racism, after the 2020 killing of George Floyd by a Minneapolis police officer sparked a national conversation on racial justice.

Newsom and state lawmakers passed a law to create a “first in the nation” task force to study and propose effective ways to help atone for the legacy of slavery. That panel spent years working on a 1,080-page report on the effects of slavery and the discriminatory policies sanctioned by the government after slavery was abolished, and the findings became the genesis for a slate of legislation proposed by the California Legislative Black Caucus.

Last week, Newsom signed Senate Bill 518, which will create a new office called the Bureau for Descendants of American Slavery. That bureau will create a process to determine whether someone is the descendant of a slave and to certify someone’s claim to help them access benefits.

Assemblymember Isaac Bryan (D-Los Angeles), who introduced Assembly Bill 7, said his legislation would have allowed colleges to grant preference to the descendants of enslaved people in order to rectify a “legacy of exclusion, of harm.”

Andrew Quinio, an attorney specializing in equality issues for the Pacific Legal Foundation, believes AB 7 was blatantly unconstitutional. The foundation is a conservative public interest law firm that seeks to prevent government overreach.

“This was a bill that was born out of the Reparations Task Force recommendations; it was part of the package of bills of the Road to Repair from the California Legislative Black Caucus so this has a very clear racial intent and racial purpose and it will have a racial effect,” he said. “[Legislation] doesn’t have to benefit the entirety or even the majority of a demographic in order for it to be unlawfully based on race.”

Lisa Holder, a civil rights attorney and president of the Equal Justice Society, a progressive nonprofit that works to protect policies that promote diversity, argued the measure’s framing made it highly likely to satisfy legal challenges.

“This (legislation) is very specifically tailored to correct the harms that we have seen, the harms from the past that continue into the present,” she said. “… Because this bill seeks to erase those harms by focusing specifically on the descendant community, it is strong enough to establish a compelling interest.”

Gary Orfield, a law and education professor and co-founder of the Civil Rights Project/Proyecto Derechos Civiles at UCLA, agreed the legislation was carefully written in a way that could have withstood legal challenges. He pointed out California allows university programs that support Native American students because they were narrowly tailored to focus on tribal affiliation — which is considered a political classification — instead of race or ethnicity.

Orfield said applicants of various races could have potentially benefited from the new admissions policy, as many Native Americans were enslaved and Asiatic coolieism, or Asian indentured servitude, was declared a form of human slavery in the state constitution in 1879.

“All Black people weren’t slaves and all slaves were not Black,” he said. “I think there is a good argument to say that slavery isn’t defined strictly by race and is not just a proxy for race and there certainly is a legitimate concern when you are thinking about remediation for historic violations.”

Orfield, however, said convincing the public was a different matter.

“I don’t think all people will easily understand this,” he said. “Americans tend to think that discrimination doesn’t cross over multiple generations. But I think that it does — I think there has been a long-lasting effect.”

Staff writer Melody Gutierrez contributed to this report.

Reporting from Washington — By a 5-4 vote, the U.S. Supreme Court kept in place Wednesday its order blocking video coverage of the trial of California’s Proposition 8, with a conservative majority ruling that defenders of the ban on same-sex marriage would likely face “irreparable harm” if the proceedings were broadcast to the public.

“It would be difficult — if not impossible — to reverse the harm of those broadcasts,” the court wrote in an unsigned opinion. The witnesses, including paid experts, could suffer “harassment,” and they “might be less likely to cooperate in any future proceedings.” The high court also faulted U.S. District Judge Vaughn Walker for changing the rules “at the eleventh hour” to “allow the broadcasting of this high-profile trial” that will decide whether gays and lesbians have a right to marry in California.

The unsigned opinion clearly speaks for Chief Justice John G. Roberts Jr., and Justices Antonin Scalia, Clarence Thomas, Anthony M. Kennedy and Samuel A. Alito Jr.

The four liberal justices dissented and accused their colleagues of changing the court’s rules so as to “micromanage” a trial judge.

“The Court today issues an order that will prevent the transmission of proceedings in a nonjury civil case of great public interest to five other federal courthouses,” wrote Justice Stephen G. Breyer. “The majority’s action today is unusual. It grants a stay in order . . . to intervene in a matter of local court administration that it would not (and should not) consider. It cites no precedent for doing so. It identifies no real harm, let alone ‘irreparable harm’. . . . And the public interest weighs in favor of providing access to the courts.”

Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor agreed.

The court’s order means that the trial can be seen only inside the courthouse in San Francisco.

Last week, Walker said the trial would be taped each day and posted on YouTube each evening. On Monday, he revised that plan somewhat and said the video coverage would appear on the court’s website. He also planned to have the proceedings streamed live to several courthouses around the country.

But the high court issued a temporary order Monday morning to stop the video coverage. The extent of the split became apparent Wednesday afternoon when the court issued the 17-page opinion and 10-page dissent.

The majority cited newspaper accounts from the last year to bolster its contention that opponents of same-sex marriage have been “subject to harassment,” including “confrontational phone calls and e-mail messages” and even “death threats.” Under the court’s rules, the justices do not intervene in pending cases unless they are convinced that the appealing side has a strong legal claim as well as evidence of “an irreparable harm” if the court fails to act.

Breyer scoffed at the notion that the witnesses in this case would face harm, because they have gone on television in the past to advocate their views. “They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the state advocating a ‘yes’ vote on Proposition 8,” he said.

Advocates for equal marriage rights lambasted the decision. “The Supreme Court just struck a huge blow against transparency and accountability,” said Rick Jacobs, chairman of the Courage Campaign in Los Angeles. “The five conservative justices are enabling Prop. 8 supporters to mask their radical views. This historic trial will remain largely hidden from public view.”

Edward Whelan, a conservative critic of Walker, praised the majority for acting to rebuke him. He accused Walker of seeking a “show trial” in San Francisco to intimidate and embarrass the defenders of California’s voter initiative prohibiting same-sex marriage.

[email protected]

WASHINGTON — The Supreme Court justices on Tuesday heard a free-speech challenge to state laws against “conversion therapy” and sounded likely to rule the measures violate the 1st Amendment.

California and more than 20 other states have adopted laws to forbid licensed counselors from urging or encouraging gay or transgender teens to change their sexual orientation or gender identity.

They were adopted in reaction to a history of dangerous and discredited practices, including treatments that induced nausea and vomiting or administered electric shocks.

Lawmakers and medical experts said these efforts to “cure” LGBTQ+ teens were cruel and ineffective and caused lasting harm.

But these “talk therapy” laws have been challenged by a number of Christian counselors who believe they can help young people who want to talk about their feelings and their sexual identity.

The court on Tuesday heard an appeal from Kaley Chiles, a counselor from Colorado Springs, Colo. She says she is an evangelical Christian, but does not seek to “cure” young people of a same-sex attraction or change their gender identity.

But she sued, alleging the state law seeks to “censor” her conversations and threatens her with punishment.

She lost before a federal judge and a U.S. appeals court, both of whom said the state has the authority to regulate the practice of medicine and to prevent substandard healthcare.

But the justices, both conservative and liberal, said the Colorado law appeared to violate the 1st Amendment.

“What’s being regulated here is pure speech,” said Justice Samuel A. Alito Jr.

Moreover, he said, the state law enforces a double standard. It would punish a licensed counselor who agrees to talk to a teenage client who wants to “overcome same-sex attractions,” but not if she encourages the teen to accept or affirm those attractions.

Justice Elena Kagan said she too saw a potential 1st Amendment violation. And Justice Sonia Sotomayor said there was less evidence that talk therapy alone has caused real harm.

In defense of the law, Colorado state solicitor Shannon Stevenson said the law applies only to licensed counselors. It does not extend to others, including religious ministers.

The practice of medical care “is a heavily regulated area. A doctor doesn’t have a 1st Amendment right to give wrong advice to patients,” she said.

Justice Amy Coney Barrett and others suggested counselors could still face a medical malpractice lawsuit, even if the court rules the state law violates the 1st Amendment.