STATE Senate Stews over Race-based Admissions

    In an effort to bring race, gender and household income back into the admissions considerations, a bill written by state Assembly Speaker Fabian Nuñez is moving through the California Legislature, but it will likely be changed on its way out.

    Nearly identical to a previous bill vetoed by Gov. Arnold Schwarzenegger in 2003, the legislation, AB 1452, “will be a much different measure than it currently is” after the Senate Education Committee has voted on it, Nuñez spokesman Alex Traverso stated in an e-mail.

    Because the bill is currently being considered by the committee, Traverso would not specify what changes would be made.

    The bill would purportedly work “in accord” with Proposition 209, a measure passed in 1996 that banned “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity or national origin” in public entities.

    Nuñez’s bill would authorize the University of California and California State University to consider various race- and gender-related factors in undergraduate and graduate admissions as long as no “preference” is given in the recruitment.

    “Most people in California do support equal opportunity,” said Yvette Felarca, chairwoman of the affirmative action advocacy group By Any Means Necessary. “If Schwarzen egger is serious about winning a reelection he would be very smart to sign this bill.”

    However, Diane Schachterle of the American Civil Rights Institute, an organization founded by Proposition 209 author Ward Connerly, said the bill violates the California Constitution. If passed, it will be challenged and struck down by the state’s courts, she said.

    “If, in fact, the UC and CSU systems would consider race as a factor in respective admissions processes, then they would be unlawful and in violation of Proposition 209,” Students United for Student Rights President Eddie Herrera stated in an e-mail. “However, the bill does not affect the admissions process but assists the UC and CSU systems in determining adequate outreach to all sectors of California population.”

    Herrera is also vice chair internal for the Thurgood Marshall Student Council.

    Still, any attempt to consider race and ethnicity in the admission process is “flatly illegal,” Schachterle said. A clause within the bill that states admissions will consider race without preference is a “meaningless disclaimer to protect the bill from a legal challenge under Proposition 209,” according to Susan Browne, an attorney for the conservative Pacific Legal Foundation.

    But because Proposition 209 has yet to be tested in the context of the UC system, it is due for a new interpretation, Felarca said.

    “Proposition 209 never actually had the words ‘affirmative action’ in it,” she said. “If Proposition 209 means the enforcement of segregation then it is illegal.”

    Proposition 209 contradicts itself by not considering race, which undercuts its goal to equalize higher education, according to Felarca.

    The bill does state that its measures would be implemented to the maximum extent permitted by the Supreme Court in the Grutter v. Bollinger case. Significantly, the case affirmed the University of Michigan Law School’s right to use a “narrowly tailored use of race in admissions decisions” in the interest of “obtaining the educational benefits that flow from a diverse student body.” The landmark ruling in 2003 reasoned that, because the law school did not base acceptance or rejection on race but rather used it as one of many factors that contribute to a diverse student body, it was not in violation of the equal protection clause of the Civil Rights Act.

    If passed, Nuñez’s bill may shed light on a study undertaken by the University of California showing that black and Latino students remain underrepresented in the ten-campus system, compared to ethnic make-up of California’s high school graduates.

    “Our local, state, and federal government must first acknowledge students as an investment for the future of society,” Herrera said. “Because many minorities began with unequally distributed opportunity, it will take time and commitment to pursuing equal representation in underrepresented institutions to reach equilibrium.”

    What is most needed, however, is “universal outreach into places where traditionally the UC has forgotten to go,” Schachterle said, citing poor education as a primary area of concern.

    “Kids have to be UC-prepared when they graduate high school,” she said. “I would like you to find me any admissions officer that does not want to admit qualified students of any race, ethnicity or gender.”

    Policies like affirmative action, however, are needed in order to recognize that social inequality exists and that rectifying social inequality is the responsibility of society, Felarca said.

    “If we had a truly fair admissions process then we would see proportionate representation in universities,” Felarca said. “We are not yet a country free of institutionalized racism.”

    The bill would also require each UC campus to report to the state Legislature and the governor on the implementation of the bill, including information on the number of students admitted, categorized by race, gender, ethnicity, national origin, geographic origin and household income.

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