The state Assembly voted on May 26 to allow UC and CSU campuses to consider race as a factor in the admissions process, a move criticized by opponents of affirmative action.

Passed 45-30 by the state Assembly without any debate, AB 2387 will allow the UC and CSU systems to consider race, ethnicity, national origin, gender, geography and income, along with other relevant factors established by the systems’ admission boards, during the admissions process.

“The purpose of the bill is to give the admissions office a tool they can utilize so they can review the applicant’s letter holistically, where everything is taken into consideration, not just that person’s score and GPA,” said Ricardo Lara, director of communications for Assemblyman Marco Firebaugh (D-South Gate), who introduced the bill. “We believe that where the person comes from, their race and ethnicity all play a role as a precursor of the student’s talent.”

The University of California has not taken a position on the bill, according to UC Office of the President spokesman Hanan Eisenman. However, he did not think the bill would affect Proposition 209, an initiative voters passed in 1996 to ban affirmative action by public entities.

“We want to meet with Firebaugh to discuss and compare our legal analyses,” Eisenman said. “We don’t think it would have an effect on our ability to consider race under Proposition 209.”

UCSD does not have sufficient knowledge on the details of the bill to take a position on it, said University Outreach Communications Director Pat Jacoby.

Advocates of the bill base their argument on the Supreme Court’s 2003 decision in the Grutter v. Bollinger case, which challenged the University of Michigan’s race-based admissions policies. The court ruled to allow closely tailored use of race for the goal of establishing diversity.

“We felt the outcome was so inspiring that we need to make this available to all California students,” Lara said.

However, the American Civil Rights Coalition, a group that opposes racial preferences, believes the bill violates the guidelines set forth by the Supreme Court in the case, according to the ACRC’s Director of Public Affairs Diane Schachterle.

“[The Supreme Court] said that race-based programs may not be applied where race-neutral programs were shown to be successful,” Schachterle said. “[The decision] listed the states where race-neutral programs were working, and California was on that list.”

The problem with using the Court’s decision as the grounds for the bill is that in Michigan, laws allow for race-based admissions criteria, while California’s state constitution does not, she said.

“In fact, Proposition 209 was intended to provide additional protection above the federal Constitution to completely prohibit preferential treatment and discrimination on the basis of race,” said John Findley, a principal attorney for the Pacific Legal Foundation, a group which opposes government bureaucracy. “The courts were very clear in interpreting Proposition 209: Government entities cannot grant preferential treatment.”

Therefore, by calling for “consideration” of race, the bill does not pass muster with state statute, according to Findley.

“The case law in state and federal courts say Proposition 209 forbids the use of race in any form, even the classification of race,” Schachterle said. “So ‘consideration’ of race, as proposed in the bill, violates that law.”

Proponents of the bill argue that because the bill explicitly bans giving benefits or preferential treatment to specific races, it passes legal muster.

“The bill does not allow preference and does not set quotas as in affirmative action policies,” Lara said. “So long as no preference is given to [a particular group], we are within the law and not in violation of Proposition 209.”

However, challengers of the bill say that it will be impossible to consider race in admissions without it setting any preferential treatment or discrimination toward that applicant.

“The very act of considering race makes it a plus-or-minus factor,” Schachterle said. “The bill will be challenged by us and other civil rights advocates, and it will be found unconstitutional.”

The bill will be sent to the state Senate’s Education Committee by June 9 before going to the governor for approval.