This summer the Pacific Legal Foundation filed a lawsuit to end a scholarship available to University of California Sand Diego (UCSD) students. The group sued on behalf of a student named Kai Peters who was a UCSD student but who was not eligible to apply for the scholarship because he is white.
The Black Alumni Scholarship Fund (BASF) awards up to $10,000 to students who maintain a 2.7 GPA and participate in various programs like student mentoring. Kai would gladly participate, but the program is exclusive to black students. He is white, and therefore ineligible.
UCSD founded BASF in 1983 as a state-run, race-based scholarship program. When voters passed Proposition 209 in 1996, banning discrimination in public education, UCSD simply outsourced the program to an off-campus nonprofit. Now nominally private, BASF nevertheless maintains an inextricable partnership with UCSD—a public university constitutionally prohibited from engaging in racial discrimination.
In case that wasn't clear, Prop 209 made affirmative action within the UC system illegal long before the Supreme Court ended the practice. This scholarship was somehow spared because it was spun off as a separate entity. However, the idea that it operated independently of UCSD was dubious at best.
BASF’s 17-member board includes six current or former UCSD employees, two UCSD Alumni Board members, and one UCSD Trustee. UCSD’s website states that university gifts will support BASF scholarships. And in 2016, UCSD Chancellor Pradeep Khosla created the university’s Black Academic Excellence Initiative, in part to increase funding for BASF.
Most troubling, UCSD provided BASF with the names and contact information of every admitted student who checks the “Black/African American” box when applying to UCSD. BASF then automatically sent scholarship applications to these students while excluding all others. BASF even boasted that because it could avoid Prop 209’s constraints through private funding, “100% of BASF Scholars identify as Black/African American.”
This arrangement allowed UCSD to circumvent constitutional requirements by outsourcing racial discrimination to a supposedly private entity.
Soon after the lawsuit was filed, the BASF agreed to settle the case by changing the name of the scholarship and opening it up to all students.
Almost immediately after our lawsuit Californians for Equal Rights v. UC San Diego, et al. was filed in July, the defendants reached out, offering to settle. Specifically, they proposed replacing the scholarship with a race-neutral alternative named the Lennon Goins Alumni Scholarship Fund (GASF). As it stands at the inception, GASF awards UCSD students based on individual needs, merit and community service. We accepted the settlement and on October 20th, the case was dismissed, after the San Diego Foundation announced the new scholarship.
It seems possible the BASF agreed to settle because they didn't have a leg to stand on legally and knew it, but because the case didn't go to court we don't know how these arguments would have fared.
In any case, the Washington Post picked up the story today because of a legal argument used by the Pacific Legal Foundation. The group invoked a 150-year-old law designed to prevent discrimination by the Ku Klux Klan.
The case’s use of the Ku Klux Klan Act of 1871, signed into law to protect the rights of African Americans in the South, is a novel approach that attorneys for the plaintiffs touted as a victory for equality and a possible blueprint for future challenges...
The Reconstruction-era civil rights law was designed to stop conspiracies between government officials and private entities to deny Americans equal protection under the law, compelled by the white supremacist group’s threats to African Americans in the South at the time.
The Pacific Legal Foundation argued in its lawsuit that the university and the San Diego Foundation’s collaboration to provide scholarships to only Black students amounted to a conspiracy that hindered all students’ right to equal protection.
Naturally, some law professors think neutral application of the law is outrageous.
Cara McClellan, a professor at the University of Pennsylvania’s Carey Law School, said the San Diego case was “flipping the purpose of the law on its face.”...
The lawsuit also contended that the scholarship violated the 1964 Civil Rights Act and evaded California’s constitutional ban on racial preferences. In its investigations of higher-education institutions and programs across the country, the Trump administration has repeatedly cited the Civil Rights Act, including Title VI, which prohibits discrimination on the basis of race.
“It’s their spin, right, that these types of scholarships are somehow fostering discrimination, when in reality, the intent is the exact opposite,” said Julie J. Park, a professor of education at the University of Maryland, College Park, who has researched race and diversity in higher education.
The intent may have been the opposite but the means do seem to violate both state and federal laws against racial discrimination in public education. It's also worth noting that, whatever the intent, the scholarship did not accomplish its goals.
“100% of BASF Scholars identify as Black/African American,” the website said, adding that the goal of the scholarship fund was to “increase Black graduation at UCSD from 2% to 5% of degrees awarded.”
Despite decades of scholarships, that goal remains unattained. In the 2023-24 school year, just under 3% of UC San Diego’s undergraduate degrees awarded went to students who identify as Black or African-American, according to the system’s data.
So the fact that it hadn't worked and probably was illegal seem like good reasons to give up. But there's also another possibility which is alluded to in the Post story. Maybe they conceded quickly to avoid generating an adverse judicial ruling which could then be applied to other, similar efforts in California.
If it were taken to court, a similar case could also have wide-ranging implications for private philanthropy outside higher education, [Cara McClellan] said.
I think that last one is the most likely reason BASF folded so quickly. Better to lose quickly and quietly than to have the loss carved in stone. But this isn't the only area where the UC system has been walking back some earlier DEI commitments.
In March, the UC changed its hiring practices, banning its 10 campuses from requiring “diversity statements” as a condition for employment. Now those statements are voluntary.
Even in California, defending DEI has become an uphill battle.
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