California Legislature Proposes Racial Discrimination in University Admissions Policy

Via Pacific Legal Foundation, the California Legislature recently passed a bill, SB 185, that would require the state’s public universities to discriminate on the basis of race and gender in their admissions policies.  Here’s the relevant text of SB 185:

This bill would authorize the University of California and the California State University to consider race, gender, ethnicity, and national origin, along with other relevant factors, in undergraduate and graduate admissions, to the maximum extent permitted by the 14th Amendment to the United States Constitution, Section 31 of Article I of the California Constitution, and relevant case law.

And here’s the relevant provisions of article 1, section 31 of the California Constitution, as amended by Prop 209, which runs expressly counter to SB 185:

(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.

. . . .

(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.

In First Things, Hadley Arkes pointed out the moral problem of legally prescribed racial discrimination, still unanswered by its proponents:

Even in circles in which it is fashionable to be provocative, we never hear the question “How has the abolition of slavery worked?”  We do not hear that question, I suspect, because people sense that the rightness or wrongness of ending slavery is wholly unaffected in principle by the extended consequences of that measure—whether the former slaves happened to prosper or grow poorer in their freedom.  And yet it is quite common for people to ask whether policies of “reverse discrimination” or “busing for racial balance” have worked. . . .

. . . . When we say, for example, that it is “wrong to separate children in schools on the basis of race, do we mean that it is indeed categorically wrong—wrong in principle, wrong in itself?  Or do we mean that it is only contingently wrong: it is wrong only because of its effects—because (in the words of the Supreme Court) it may affect the motivation of children to learn? Would a poor performance in school affect, in turn, the chances of black children to earn, in their maturity, incomes equal to those of whites?  And if we attain an equality of performance in the schools, or a parity of income between the races, are those things good in themselves, or are they merely means to other ends?  The questions lead on, once again, in a search for a final point, an understanding of something right or wrong in itself. . . . When the wrong of segregation is understood to hinge upon its material effects, we must necessarily dissolve the conviction that the segregation of people on the basis of race is categorically, in principle, wrong. [Boldface added.]

In California, lawmakers have not only sought to supplant the people’s anti-racial discrimination principle expressed in their constitution through an inferior act of lawmaking, they have failed to supply any principle with which to replace it. If the acts of California’s public universities are not to regard racial color-blindness as a good in itself, or racial discrimination as a wrong in itself, then what sorts of objectives of state admissions officials will be considered “good” or “bad”?

The problem is not only that lawmakers enact bad policy.  It is that they make the scope and nature of their policies inscrutable.  Modern policymaking is all making and no policy. Worse still, they devolve the responsibility for setting policy down the chain of command into the unelected ranks of chums and technocrats.  In his review of Claude S. Fischer’s Made in America: A Social History of American Culture and Character, Wilfred M. McClay writes:

Voluntarism [a system, according to Fischer, in which relationships, organizational affiliations, and living circumstances are largely a product of individual choices rather than of necessity or external compulsion] requires a structure of laws and mores and institutions in which the individual is accorded a high degree of negative liberty, a liberty that he knows he has, and that the government knows he has, and that he knows the government knows he has. It requires the highest possible degree of directness, simplicity, accountability, and transparency. And it requires the right kind of ideas about human agency and human responsibility, in order to support those laws. Take those away, and put in their place a regime of arbitrary laws administered by large, unaccountable bureaucracies, undergirded by mores stating that the individual is powerless to know his rights and responsibilities, and you soon have a very different American social character, and certainly one in which voluntarism becomes either irresponsible or extinct. Ideas do have social consequences.

In their haste to restore rule by specialized knowledge, California lawmakers have ignored the will of the people reflected in their constitution.  California voters have often wielded the initiative process with disastrous results, but stunts like SB 185 demonstrate why Californians still need a check against their legislators’ penchant for elitism.

[Cross-posted at the main page]

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at


  1. Under the disguise of diversity UC Berkeley denies admission of Californians to Cal. University of California discriminates against Californians. Chancellor Robert J Birgeneau ($500,000 salary) displaces Californians qualified for public university education at Cal. for a $50,600 payment and a foreign passport. Need for transparency at UC Berkeley has never been so clear.

    UC Berkeley, ranked # 70 Forbes, is not increasing enrollment. Birgeneau accepts $50,600 FOREIGN students at the expense of qualified instate Californians.

    • The Chancellor’s salary is impressive but irrelevant.

      There are lots of good reasons to accept foreign students. Not the least of which is to cause “brain drain” from other nations.

      They send their best and brightest here to be educated. They pay a premium for it, subsidizing in part education to be provided to U.S. citizens and in particular to Californians (in this case). Along they way, they find out that life in the U.S.A. and economic opportunities here after graduation far exceed what is waiting for them back home.

      Some go home, after they graduate, and typically maintain contacts with the U.S. citizens they befriended here, doing business with them, and thereby trading with us. That trade contributes to our economy.

      But the real goal is for them to decide to stay, or at least to come back. It’s just plain better here. I have friends — industrialists from Sri Lanka, doctors from India and Pakistan, pharmacists from South Africa, lawyers from the UK — all of whom have taken their advanced training and come here to the States, and now they work here. Their labor, their brainpower, their contributions to the economy are to the benefit of the U.S. and are not to the benefit of those nations with whom we compete.

      I wish we had more foreign students in our public universities.

      • Burt,

        Agreed. Even on the “magnet” question in the separate issue of illegal immigration, I just don’t see how keeping talented and driven kids untrained and uneducated helps anything.

        When it comes to talented and valuable manpower, if they’re not here yet, let’s attract them and do what we can to get them to stay. If they’re already here, and already want to stay here, then there is little to lose by getting them a few more years of training and/or education to make them valued members of society and tax payers.

  2. Who cares, let CA flush it self down the toilet. Maybe when it is turned into a third world cesspool folks out there will wise up.

    • Ignoring the main article and my position on it, you do realize that a part of the country that about 15-20% of the countries economy on it’s own going completely in the crapper may affect the country at large? Or is that too subtle and complex of an idea?

      • Yes, CA has a large economy, but what can the rest of the country do to stop them from doing all the stupid things they do? Not much as I can figure so maybe they will learn when the place falls apart. They keep deluding themselves thinking that the rest of country will follow them on their path to the cesspool.

  3. I was a very recent graduate of a UC school when Prop. 209 was adopted. Since its adoption, African-American and Latino enrollments overall have decreased, but the graduation rates of those students who do get in have increased.

    The UC’s mandate is to provide education to the top one-eighth of California’s graduating high school students. The concern about its adoption as articulated then was that the quality of UC education overall would diminish with a lack of diversity. Diversity did indeed diminish but I percieve no diminishment in the quality of a UC edcuation when interacting with more recent UC grads. If diversity is an inherent good (a proposition that I think is still subject to legitimate question) then the way to restore it would be to interpret the 12.5% mandate to mean not “the top one-eighth of all SAT scorers in California” but rather “the top one-eighth of all SAT scorers in each of California’s school districts” or even more narrowly “the top one-eighth of all SAT scorers in each of California’s schools.”

    There is no need for legislative subterfuge like this to achieve the stated goal of increasing diversity at UC schools.

  4. If diversity is an inherent good (a proposition that I think is still subject to legitimate question) then the way to restore it would be to interpret the 12.5% mandate to mean not “the top one-eighth of all SAT scorers in California” but rather “the top one-eighth of all SAT scorers in each of California’s school districts” or even more narrowly “the top one-eighth of all SAT scorers in each of California’s schools.”

    That would run afowl of 209, wouldn’t it? Suggesting that someone with a lower GPA/SAT/etc should get in because they are part of 12.5% of an underperforming ethnicity?

  5. It seems that California schools are losing funding for lack of diversity. There are incetives for schools and businesses to integrate…..sooo what’s the issue? I don’t understand why diversity has to mean a downgrade in quality? The overall implication in the comments made here seem to be saying that Latin and African americans are races that are academically inferior. Clearly affirmative action policies are strategic ones that endorse the admission of qualified ethnically diverse students into institutions like UC berkeley. If the schools on USA news or Forbes are worth their salt they will maintain the integrity of their schools. I’m certain of it.

  6. Also integration of businesses and institutions couldn’t have happened without incentives such as funding and affirmative action policies it wasn’t because of the conscious of most american’s evolving ! Take a look at history it’ll tell you….

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