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$20 million affirmative-action program at UC-Berkeley is against the law, critics claim


Black students get dedicated psychologists of their own race

Nearly two decades after Californians voted to ban the consideration of race in public university admissions, the flagship campus of the University of California system is taking measures to get around Proposition 209.

UC-Berkeley unveiled the African American Initiative last month, raising eyebrows among academic groups who not only question its legality but think it “perpetuates a sort of racism,” as one scholar told The College Fix.

The school describes the initiative as “a comprehensive effort to address the underrepresentation of African American students, faculty, and staff at our university, and improve the climate for those who are here now and all who will join our community in the future.”

It plans to increase recruitment of African American applicants, aided by a planned $20 million endowed scholarship fund in cooperation with private nonprofits; the hiring of race-specific clinical psychologists; and the diversification of UC-Berkeley’s faculty and upper management.

The Black Student Union highlighted the counseling provisions among others, in a press release last week on the website of the Afrikan Black Coalition, a “statewide collective of Black students.”

“The campus has just hired a Black woman psychologist and is in the process of establishing a search committee, with a BSU representative, for a search of an additional Black psychologist this fall,” the BSU said. The school “pledged to reserve two positions within Counseling and Psychological services for psychologists who have demonstrated experience working with Black communities.”

UC Berkeley Chancellor Responds to Cal BSU demandshttp://t.co/bIEVJ5zfLq

Posted by CAL Black Student Union on Monday, September 21, 2015


With only 3.4 percent of the 37,581 students at the university identifying as black, and a 2013 campus climate survey revealing that blacks feel the least respected among all groups on campus, the administration is worried that the absence of a “critical mass” of blacks will dissuade them from applying.

The legality of UC-Berkeley’s approach has come under scrutiny, however.

“If the initiative is as described in the university’s announcement, it is a straightforward violation of Proposition 209,” Gail Heriot, University of San Diego law professor and expert on the proposition, told The Fix in an email.

“The university tried to have Proposition 209 repealed,” said Heriot, also a politically independent member of the U.S. Commission on Civil Rights and former civil rights counsel to the Senate Judiciary Committee. “When it failed at that, it simply went ahead and instituted a program in violation of the law.”

Heriot later clarified to The Fix she was referring to UC-Berkeley’s support for a constitutional amendment to repeal the initiative. Senate Constitutional Amendment No. 5 passed the state Senate last year but ran into hurdles in the Assembly after Asian-American groups lobbied against it, as Century Foundation scholar Richard Kahlenberg wrote in Slate.

Southern California Public Radio reported that the bill’s Senate sponsor asked the Assembly to return the bill to his chamber, with the intent of placing the initiative on the 2016 ballot – a presidential year.


Purpose is getting more black students to apply, nothing more

UC-Berkeley officials said in the initiative’s summary that the $20 million endowment fund will consist of “privately administered scholarships for admitted African American undergraduates, many of whom receive scholarship offers from other institutions that are beyond our current financial aid abilities.”

The university’s public affairs office told The Fix that officials weren’t available to talk about the initiative. It referred instead to a public affairs article interviewing officials who devised the initiative, in which they maintained they weren’t trying to find a way around Prop 209.

gibor-basri-astro.UC-BerkeleyAsked how the effort fits into the statewide prohibition on considering race, the retiring vice chancellor of equity and inclusion, Gibor Basri, said officials “chose recruitment and yield specifically so as not to directly face the constraint of Prop. 209.”

He continued: “Both the recruitment and the yield pieces of the African American initiative avoid that issue directly. We’re talking about getting more people to apply, and then taking the people who are admitted through our race-blind, holistic process, and trying to get them to come. That’s what it’s about.”

RELATED: Asian-American groups accuse Harvard of discrimination in federal complaint

Other observers aren’t buying it.

“It is just fancy footwork to justify race-based scholarships and hard-fisted policy that pigeonholes people specifically according to race,” Glenn Ricketts, public affairs officer for the National Association of Scholars, told The Fix. “If some students want to challenge it [in court], it looks like you’d have a pretty good case.”

‘Perpetuates a sort of racism’

For Jay Schalin of the Pope Center for Higher Education Policy, speculating on whether UC-Berkeley students or California residents will step up to contest the initiative is the wrong focus.

The school’s focus on building a “critical mass” and creating race-specific programs, such as culturally specific counseling, may have negative consequences in the long run, Schalin told The Fix in a phone interview.

“Legally they may be able to avoid [violating] Proposition 209, but it still violates the spirit of … 209 in that you are separating people according to race,” Schalin said. “The fact that they’re saying that African Americans need special help to get through perpetuates a sort of racism, so that majority groups will begin to think, ‘Yes, they need special help.’”

Furthermore, Schalin worries that the initiative may also worsen the campus climate for other minority groups, who do not have race-specific benefits or feel racially pigeonholed.

This spring, an Asian-American coalition filed a regulatory complaint against at Harvard University for allegedly holding students of Asian descent to a higher standard than the rest of the student body. Opponents claimed the coalition was simply trying to undermine affirmative action at the university, rather than level the playing field.

Schalin wondered whether the initiative “could be much ado about nothing.”

He doubts “there is an untapped pool of African Americans talented enough to get into an extremely competitive school like Berkeley who are not already applying. I don’t know how it is going to work.”

UPDATE: Gail Heriot, University of San Diego law professor, was referring to UC-Berkeley’s support for a constitutional amendment that would overturn Prop 209 when she said the school failed to repeal it. The background of the amendment has been added.

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IMAGES: Dean Drobot/Shutterstock, Gibor Basri’s UC-Berkeley faculty page

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About the Author
Hanna Krueger -- Amherst College