Berkeley Under Fire For New Race-Based Program

There is another controversy brewing in California over allegations that the University of California at Berkeley is again trying to circumvent a state law that bars the use of race in educational decisions. Berkeley has announced a $20 million fund to endow scholarships for African-American students and to hire a diverse faculty. Critics say that it clearly runs afoul of the law and is another example the refusal of administrators to comply with a state policy for absolute racially blind decision-making in admissions and other educations decision making.

Berkeley’s “African-American Initiative” would raise funds from private non-profits to fund “a comprehensive effort to address the underrepresentation of African-American students, faculty and staff at our university, and improve the climate for those who are here now and all who will join our community in the future.” That would mean race-based scholarships for black students, the hiring of race-specific clinical psychologists as well as “diverse faculty and senior management.”

Chancellor Nicholas Dirks said that the university is intent upon increasing the representations of African-Americans: “For too long, African-Americans on our campus have faced obstacles to feeling fully included in the life of our university.” Of 38,000-student Cal-Berkeley, African-Americans make up 3 percent of undergraduates, 4 percent of graduate students and 2 percent of the faculty at the university.

The problem is Proposition 209 that was passed in 1996 to bar state institutions from considering race, sex, or ethnicity for public employment, contracting and education. The clear intent is to bar the use of these classifications in education.

The new program is clearly designed to circumvent the law but could present a tough legal issue. The university is arguing that the program will not make it easier for black students to be admitted but to encourage more to apply by guaranteeing tuition if they are admitted. Yet, this is not an entirely private scholarship fund (which can use race or gender based selection). The university will be administering the program. The law, once again, bars any discrimination or preferential treatment “in the operation . . . of public education.”

What do you think?

(a) The state shall not discriminate against, or grant 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.

(b) This section shall apply only to action taken after the section’s effective date.

(c) Nothing in this section shall be interpreted as prohibiting bona fide qualifications based on sex which are reasonably necessary to the normal operation of public employment, public education, or public contracting.

(d) Nothing in this section shall be interpreted as invalidating any court order or consent decree which is in force as of the effective date of this section.

(e) Nothing in this section shall be interpreted as prohibiting action which must be taken to establish or maintain eligibility for any federal program, where ineligibility would result in a loss of federal funds to the state.

(f) For the purposes of this section, “state” shall include, but not necessarily be limited to, the state itself, any city, county, city and county, public university system, including the University of California, community college district, school district, special district, or any other political subdivision or governmental instrumentality of or within the state.

(g) The remedies available for violations of this section shall be the same, regardless of the injured party’s race, sex, color, ethnicity, or national origin, as are otherwise available for violations of then-existing California antidiscrimination law.

(h) This section shall be self-executing. If any part or parts of this section are found to be in conflict with federal law or the United States Constitution, the section shall be implemented to the maximum extent that federal law and the United States Constitution permit. Any provision held invalid shall be severable from the remaining portions of this section.