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April 17, 2011
California State Senate Education Committee
Senator Alan Lowenthal, Chair
Via facsimile: 916-445-7799
RE: Oppose SB185
Dear Chair Lowenthal,
I write on behalf of the California Association of Scholars concerning SB185, which provides that, “…The University of California may, and the California State University shall, consider race, gender, ethnicity, national origin, geographic origin, and household income, along with other relevant factors, in undergraduate and graduate admissions, so long as no preference is given....It is the intent of the Legislature that this provision be implemented to the maximum extent permitted by the decision of the United States Supreme Court in Grutter v. Bollinger (2003)…in which the court stated that the equal protection clause of the 14th Amendment to the United States Constitution does not prohibit a university's ‘narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body,’ and in conformity with Section 31 of Article I of the California Constitution.”
As you know, the California Constitution flatly prohibits any form of discrimination or preferential treatment based on race or sex. That provision has been tested in court many times, and it has always prevailed. In Grutter v. Bollinger, the US Supreme Court held that the US Constitution permits diversity to be a consideration in admissions, but that does not preempt an explicit state prohibition: Grutter permits but does not require, and so California’s prohibition takes precedence. Mention of Grutter in SB185 is thus at best irrelevant. Its inclusion can have only one purpose: to deceive, by hinting that Grutter permits racial preferences in California, which it does not.
SB185 as written invites UC and CSU to break the law, by telling them that considering race in admissions is not the same thing as granting a preference. But considering race in admissions is the same thing as granting a preference. The bill pretends there is a distinction where none exists and so invites UC and CSU to pretend that they are not violating proposition 209 when that is what they would be doing.
The legal situation is beyond any question: 209’s prohibition on preferences is not trumped by the Grutter decision, and nobody thinks that it is. If 209 did not exist, Grutter would still not require preferences: it only permits them where they are not forbidden by law, as they are in California. It is also beyond any doubt that if considering race in the admission process results in any individual getting admitted who would not otherwise have been admitted, that is an illegal preference. This proposed law can not possibly achieve anything—apart from encouraging individuals who have a poor understanding of the law to break it, thus clogging our courts with completely unnecessary suits to restrain them when they do so.
We therefore ask you to ask yourselves: is there even one good reason to vote for this bill? It may signal to others that you are in the right camp with respect to preferences. But is that a sufficient reason? It may make you feel good about your own benevolent intentions. Is that a good reason? Yet these are the only possible reasons why anyone might vote for this bill. If you pass it, you will only have wasted the time and effort of many people all across this state. Nothing else will have been achieved.
You and your colleagues write the laws for this state. It would be particularly irresponsible for legislators, of all people, to encourage contempt for state law by passing a bill that positively encourages law-breaking. Moreover, the citizens of this state have a right to expect that their legislature will show a decent respect for what the people of
California did when they passed proposition 209 by a large margin.
We urge you to vote down this mischievous scofflaw bill.
John M Ellis, President
California Association of Scholars
cc Chair Alan Lowenthal
Vice-Chair Sharon Runner
Senator Elaine Alquist
Senator Sam Blakeslee
Senator Bill Emmerson
Senator Loni Hancock
Senator Robert Huff
Senator Carol Liu
Senator Curren Price
Senator Joe Simitian
Senator Juan Vargas