A number of California legislators are looking to ask the public: “When should racial discrimination be encouraged?”
A constitutional amendment currently pending, ACA 7, would authorize a referendum to peel back the California Constitution’s strong prohibitions on discrimination in public education. The bill, which has passed the state Assembly, will permit the government to discriminate in all aspects of K-12 education and some aspects of colleges and universities, except for admissions and enrollment.
The bill’s “higher education admissions and enrollment” exemption would enable significant real-world discrimination beyond these areas. Race discrimination in allocation of scholarships and internships has been a significant problem. Some such discrimination is overt; the Pacific Legal Foundation currently represents a young woman challenging a University of California San Francisco internship program that is open only to students from certain racial and ethnic minority backgrounds.
Other such discrimination is more covert. “The difference in financial aid offered to African American students as contrasted with Asian American, white and sometimes Latino students of equal financial standing was often stark,” Gail Heriot, a professor at the University of San Diego School of Law and former Civil Rights Commission member, has written. “An African American student would be given grants, while a student of any other race would be saddled with student loans, despite having equal (or even greater) financial need.”
Brown v. Board of Education (1954), perhaps the most revered Supreme Court case in our nation’s history, affirms the importance of prohibiting race discrimination in K-12 education. While earlier Supreme Court cases had addressed discrimination in higher education, the Brown court was clear that the students’ youth did not make any discrimination any more permissible. Instead, the constitutional prohibition on race discrimination should “apply with added force to children in grade and high schools.”
Although the Jim Crow regime challenged in Brown has long since passed away, racial discrimination in K-12 schools remains a problem. In recent years, some specialty middle and high schools have restructured their admissions programs to reduce the number of Asian American and white students attending. PLF has brought constitutional lawsuits challenging these schemes in Fairfax County, Virginia; Montgomery County, Maryland; Boston; and New York City.
In each case, the school district argued that its changes were not racially motivated. But if they had been in California state court in a world where ACA 7 is law, they wouldn’t have had to. Their schemes to push Asian-American kids out of their dream schools for racial reasons would have been perfectly legal.
Elsewhere, in Hartford, Connecticut, PLF challenged a decades-old desegregation settlement that prevented racial and ethnic minority kids from attending high-quality magnet schools in their own neighborhood. Again, if that case had been brought in a post-ACA 7 California state court, the district’s discriminatory policies would have been upheld.
Race discrimination and exclusion in extracurriculars, residential life, and even graduation ceremonies have also been a problem on many campuses. In his provocatively titled essay “Segregation Now,” prominent labor lawyer and Civil Rights Commission member Peter Kirsanow recounts the rise of racially separate dormitories and affinity groups at Cornell when he was an undergraduate.
Kirsanow describes in detail how similar programs have developed at other campuses, notably Stanford and the University of Connecticut, and concludes that these “pernicious” separatist programs actually inhibit cross-racial friendships among students. California state law should not be amended to encourage further such racial separation.
Many of the discriminatory educational programs that I have described above are illegal under federal law. PLF is prepared to defend the rights of California students targeted by such programs. Notably, the current administration has also made enforcing Students for Fair Admissions’ prohibition on discrimination in education a high priority. Any California school that attempts to take advantage of ACA 7 to discriminate can reasonably expect to face the tough scrutiny of the Department of Education or the Civil Rights Division.
It is difficult to escape the question: why would California go out of its way to legalize under state law conduct clearly prohibited by federal law? Why go to all this trouble just to lose in court?
As Chief Justice John Roberts has observed, the way to stop discriminating on the basis of race is to stop discriminating on the basis of race. California should heed this advice and not allow itself to dabble in legalizing new varieties of discrimination. ACA 7 is wrong for California and should soundly be rejected.
Alison Somin is a senior legal fellow on Pacific Legal Foundation’s Constitutional Scholarship team.