Office of General Counsel
Enhancing diversity at UC
In September 2007, the University of California Board of Regents adopted a Diversity Statement calling on the University to “seek to achieve diversity among its student bodies and among its employees” and acknowledging “the acute need to remove barriers to the recruitment, retention, and advancement of talented students, faculty, and staff from historically excluded populations who are currently underrepresented.”
The following guidance is intended as a resource for University administrators considering measures that the University can legally implement to achieve these goals. Legal analysis in this area is often highly dependent on program specifics and details of implementation. Therefore, administrators are encouraged to consult with OGC, including local campus counsel, when considering specific practices. OGC’s goal is to help University administration achieve its objectives while minimizing legal risk, and we have found that we can do that best when we are consulted early and often.
Several federal and state constitutional provisions and statutes bear on the measures that public institutions such as the University may take to advance diversity. Among the most significant is Article I, section 31 of the California Constitution (“Proposition 209”), which prohibits the University from discriminating against or granting 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. (For simplicity, this statement will refer to “race, color ethnicity and national origin” collectively as “race.”) Proposition 209 eliminated some of the tools that the University had previously employed to achieve diversity in its student body and its workforce.
Although there remain unanswered questions about the interpretation of Proposition 209, it is clear that the measure prohibits the University from using race or gender of the recipient as a factor in deciding who will receive benefits, such as admission, employment or University contracts. This is different from federal law, which does permit public universities to use race or sex as criteria to achieve diversity in some limited circumstances. Nevertheless, Proposition 209 does not prohibit the University from taking steps to achieve its diversity goals (as well as other, related goals) where those steps do not provide benefits on the basis of race or gender. In fact, there is much the University can do under the law to enhance and maintain the diversity of its campuses.
Following is a list of examples of measures that have been—or, based on existing authority, likely would be—held permissible under Proposition 209:
- A stated policy supporting diversity. The University, and its campuses, departments, and other units, may adopt policies in support of diversity goals. The Regents’ policy is posted at: http://universityofcalifornia.edu/regents/policies/4400.html. Further, leadership is free to publicly emphasize these goals and their importance to the University.
- Collection of data on outcomes. Proposition 209 allows the University to collect data on the race and gender of its students, employees, contractors, and of applicants for those positions in order to determine the effectiveness of its diversity efforts.
- Evaluation of selection procedures and elimination of barriers to minority access or underutilization. Under federal law, recipients of federal funding, such as the University, may not adopt practices that have a disparate adverse impact on a particular racial group or on one gender unless those practices are closely related to an important educational or business purpose and there are no alternate policies that can meet those purposes with less adverse impact. Proposition 209 does not affect this requirement. Therefore, the University not only may, but must, monitor and evaluate its admissions, hiring, and promotion practices to determine whether they have adverse impacts on particular groups. If adverse impacts are identified, the University must assess the educational and business value of the practices and evaluate the efficacy of alternatives. The University may adopt alternative, non-preferential practices for the purpose of eliminating or reducing disparities without violating Proposition 209.
- Compliance With Other Federal Laws. Proposition 209 does not prohibit the University from taking steps that are required by federal law or federal funding obligations. Accordingly, the University must continue taking steps, such as the development of employment affirmative action plans, which are required by federal law. The courts have not, however, yet approved a racial or gender preference on the ground that it was required by federal law. Administrators who believe that preferential actions may be required by federal law should consult with OGC.
- Private Organizations’ Diversity Programs. Proposition 209 does not apply to private, non-University organizations, which remain free, for example, to provide scholarship aid targeted to underrepresented minority students or engage in outreach aimed only at particular groups. The University may provide assistance—such as information, incidental logistical support and access to campus facilities—to private organizations that target efforts on the basis of race or gender if (1) assistance is provided on a non-discriminatory basis (that is, similar private organizations are eligible for similar assistance, regardless of the race or gender of the groups the private organization serves); (2) the University does not control or administer the private organization; and (3) the University is not involved in choosing recipients of the organization’s benefits.
- Outreach. Proposition 209 prohibits outreach programs that are targeted exclusively to or available exclusively for one gender or one or more particular racial group, when such efforts provide informational or other advantages to candidates who have access to them. Nevertheless, the University may, as part of a comprehensive program of outreach, target or increase specific efforts within that program to reach particular groups where the program’s benefits are available broadly to other groups, and the special efforts are necessary to reach the targeted group’s members effectively and therefore to “level the informational playing field.” Such activities might include, for example, workshops or materials oriented toward specific communities or groups. The benefits of the program must be available on a non-selective basis such that interested individuals from all racial groups and both genders have access to the same benefits.
- Programs of Particular Interest to Particular Groups. The University may lawfully sponsor programs, such as outreach programs and informational events, that may, because of their content, be of particular interest to members of particular racial groups or one gender. For example, informational programs for potential applicants on “the African American experience at UC,” or “Women’s issues at UC” are permissible if they are open to participants of all races and genders.
- Use of Non-Traditional Selection Criteria. The University may choose to advance its educational goals, including diversity, by introducing or placing additional weight on non-traditional selection criteria when making both admissions and employment decisions. Reliance on criteria such as low income, first generation to attend college, neighborhood or community circumstances, disadvantages overcome, low-performing secondary school, and the impact of an applicant’s background and experiences on his or her achievement is non-preferential on the basis of race or gender, and may help the University attain greater diversity.
- Consideration of Probable Contributions to A Rich Campus Environment. The University has a legitimate interest in the way in which students, faculty and staff contribute to a rich, diverse campus environment and may consider how individual candidates’ or applicants’ cultural experiences, backgrounds, and special talents would contribute to the campus. Evaluation of individuals’ contributions to a rich environment should be made on the basis of their actual, demonstrated experience and talent and not assumed based on their race or gender.
- Consideration of Future Service to Underserved Populations. The University may, particularly in admissions to professional and graduate schools that are more directly focused on career training, consider applicants’ commitment to service of underserved communities. Again, evaluation should be based on candidates’ demonstrated commitment to service of these communities and not assumed from the candidates’ own race or gender.
- “Yield” and Post-Selection Recruitment Activities. Activities directed at recruiting already-admitted applicants or employees who have been offered positions through non-preferential selection processes likely stand in a somewhat different position than pre-application outreach, since the University’s attempt to convince a successful candidate to accept its offer of admission or employment does not necessarily provide the candidate any additional benefits. Therefore, the University may conduct special post-selection “yield” efforts targeted by race or gender as long as those efforts do not provide tangible benefits (such as travel, lodging, or meals). This might include, for example, targeted telephone or letter-writing campaigns or informational programs and inclusion of “welcome” letters from or links to websites of identity-based student groups in admissions packets.
- Use of racial or gender demographics as a factor. A recent case approved the use of racial demographics of a neighborhood as one of several factors in assigning student residents to schools. Assignments were based on residence, regardless of an individual student’s race/ethnicity. The decision allows the University to grant special consideration to students from, for example, particular high schools or neighborhoods based (at least in part) on the overall ethnic demographics of the school or neighborhood, as long as the University does not differentiate among students on the basis of their individual race/ethnicity. Because the legal standards in this area are still ill-defined, campuses should consult with OGC before implementing new practices.