Date: Tue, 16 Jan 1996 09:36:42 -0800
From: Carmen.Estrada@ucop.edu (Carmen Estrada)
Subject: AFFIRMATIVE ACTION & OUTREACH

TO EEO/AA ADMINISTRATORS January 15, 1996

The following is for your information. Please distribute to interested parties.

The following memo was distributed to the news media. We are providing you with a copy for your information.

Mike Lassiter Director, UCOP News & Communications

Attached is a memorandum from University of California General Counsel= James E. Holst regarding interpretation of SP-l "Policy Ensuring Equal Treatment Admissions" and SP-2 "Policy Ensuring Equal Treatment - Employment and Contracting." The report responds to questions regarding the use of race and gender in outreach and financial aid programs, the impact of the new policies on the University's eligibility to receive state and federal funds and whether "The Regents' Diversity Commitment" modifies or amends the prohibition of race and gender criteria in admissions and hiring and contracting. January 9, 1996 PRESIDENT RICHARD C. ATKINSON Re: SP-l and SP-2 - Issues of Scope and Effect Dear Dick:

This memorandum responds to several questions that have been presented to the Office of the General Counsel with respect to interpretation of SP-l, "Policy Ensuring Equal Treatment Admissions," and SP-2, "Policy Ensuring Equal Treatment - Employment and Contracting," since their adoption by The Regents in July 1995. These matters include the following:

*the application of SP-l to the use of race, ethnicity, and gender in undergraduate outreach programs;

*the meaning of section 6 of SP-l and section 3 of SP-2 which permit actions "strictly necessary" to obtain federal or state funds;

*the operative significance of "The Regents Diversity Commitment" adopted by The Regents and applicable to SP-l and SP-2; and

*the application of SP-l to financial aid programs. These matters all involve attempting to discern the "intent" of The Regents in adopting the resolutions. In attempting to determine such intent, the typical sources, as in the case of statutory construction generally, are "the language of a statute, the policy behind the statute and concepts of reasonableness and legislative history." (Sutherland, Statutory Construction, A745.06 (5th Ed., 1992).) The comments that follow are based on review and analysis of the resolutions and other materials which may shed light on the several issues. 1. Race-Attentive Outreach Efforts Under SP-l

For purposes of this memorandum, the term "outreach" is used to describe efforts made at the pre-university level to make more minority and socio-economically disadvantaged students eligible for admission to the University of California. Currently, special efforts are made to ensure that these programs focus on African American, Chicano/Latino, or Native American students because students from these groups have extremely low eligibility rates. My conclusion is that SP-l does not prohibit outreach efforts focused on students from these groups, provided those outreach efforts do not exclude disadvantaged, non-targeted students.

SP-1 uses the term "outreach" in only one reference; in section 1 it provides for appointment of a task force representative of, among others, "organizations currently engaged in academic 'outreach"' for the purpose of developing ". . .new proposals for new directions and increased funding for the Board of Regents to increase the eligibility rate of those currently identified in Section 4" of the resolution, that is, individuals who have ". . .suffered disadvantage economically or in terms of their social environment. . ." Sections 2 and 3 of SP-l prohibit use of race, religion, sex, color, ethnicity or national origin as "criteria for admission to the University or to any program of study" or as "criteria for 'admissions in exception' to UC-eligibility requirements." Neither section makes reference to "outreach," and it is my opinion that the University's undergraduate outreach activities do not constitute "programs of study" or involve "criteria for admission." In considering the intent of SP-l with reference to outreach programs, it is instructive to consider the text of Governor Wilson's Executive Order of June 1, 1995, and accompanying material, and the relationship between that text and the references to the Executive Order in SP-l. The several recitals, or "whereas" clauses, preceding the operative text of SP-l establish that a significant objective of The Regents in adopting SP-1 was to conform The Regents' policy set forth in SP-l to the Executive Order. Three of the four recitals refer specifically to the Executive Order, including that part of the Order requesting the University "to take all necessary action to comply with the intent and requirements" of the Order.

The Executive Order deals with employment and contracting practices of state agencies, expresses in section 2 a general prohibition on "all state preferential treatment requirements that exceed statutory requirements," and in section 3 endorses "appropriate measures to ensure that qualified applicants are recruited from all segments of the relevant work force. . ." There is no specific reference in the Executive Order itself to outreach efforts and thus no express indication of whether such efforts would be viewed similarly to employee recruitment efforts.

Significantly, there are two explicit references to "outreach" in materials distributed by the Governor's Office in connection with the Executive Order. First, in an open letter to the people of California, Governor Wilson described a number of complaints about affirmative action including the circumstances of a student at San Bernardino Valley College who wished to attend a class she was told was reserved for African American students. The class was described as ". . .based on a racially segregated program sponsored by the California Community Colleges, which provided classes and counseling to individuals based not on financial or academic need, but solely on race." Second, a question and answer document describing the Executive Order appears explicitly to endorse the Puente program, an outreach program focused on Chicano/Latino students but which, by contrast to description of the San Bemardino Valley College program described in the first reference, does not exclude students from other groups. The question and answer document indicates:

"Q - Hasn't the Governor supported in the past, both in his statements and in actually providing budgeting increases, certain affirmative action programs - like the Puente program?

"A - Yes. The governor believes that programs like Puente have, in fact, worked well in providing opportunities for students to strengthen their academic preparation so in theory, at least - they could meet the same standards as others.

"However, he believes it is fundamentally wrong to prohibit students from participating in such programs solely because they don't meet a specific race and/or gender classification.

"Let's make it clear that it is not the Governor's intention to unilaterally jettison programs that have proved successful in assisting students who are willing to work had to bring their skills, grades and test scores up top the standards that make them UC or CSU eligible. The Governor believes that, in most cases, the provisions for participating in these programs can be redrawn to eliminate race and/or gender requirements so no student is prohibited from participating. That is, if a white student wants to participate in the Puente program (which targets Hispanic students), then that student cannot be excluded from participating."

These references in the materials accompanying the Governor's Executive Order, coupled with the lack of an explicit reference to outreach in the Executive Order itself, lead me to conclude that the intention of the Governor's Executive Order is to permit race attentive outreach programs where essential to achieve the objectives of the program and where non targeted groups are not excluded from participation. The question and answer materials are relevant in interpretation of SP-l because of the evident intention of The Regents in adopting SP-l to respond to the Executive order request for University compliance with its intent and requirements.

In my judgment, SP-l itself does not contradict the material accompanying the Governor's Executive Order. The fourth recital of SP-l expresses The Regents' belief

". . .that it is in the best interest of the University to take relevant actions to develop and support programs which will have the effect of increasing the eligibility rate of groups which are 'underrepresented' in the University's pool of applicants as compared to their percentages in California's graduating high school classes and to which reference is made in Section 4;n. Section 1 of SP-l provides for establishment of what has been generally referred to as the "outreach" task force, a task force ". . .to develop proposals for new directions and increased funding for the Board of Regents to increase the eligibility rate of those currently identified in Section 4." The fourth recital and sections 1 and 4 of SP-l clearly express an intention to support outreach efforts to increase eligibility rates for socio economically disadvantaged students. Like the Governor's Executive Order, they do not rule out targeting of socio-economically disadvantaged minority students and do not require the discontinuance of any current outreach programs. As indicated above, sections 2 and 3 of SP-l are very specific in prohibiting the use of race, religion, sex, color, ethnicity, and national origin as criteria for admission to the University or any program of study or as the basis for admission by exception.

Given the express prohibitions on race-attentive admissions decisions in sections 3 and 4 and the absence of any such prohibitions applicable to outreach programs, I do not believe that SP-l can be read to prohibit race-attentive outreach programs open to non-targeted groups in the same way as race-attentive admissions programs are prohibited. It is clear, though, that the only express references to outreach in SP-l are to outreach for socio-economically disadvantaged students; this leaves a question as to the extent to which The Regents would support racial and ethnic targeting of outreach programs. What The Regents clearly did regarding outreach was to authorize a task force to study the matter, and it is apparent The Regents intend the principal focus of that study to be "new directions and increased funding. . .to increase the eligibility rate or those currently identified in Section 4." This leads me to conclude, particularly in light of the material accompanying the Executive Order, that SP-l should be understood to provide for expansion and support of outreach efforts for= socio economically disadvantaged students and to await the recommendations of the outreach task force with respect to the extent to which race-attentive outreach should be used, its effectiveness generally, efficacy and the extent and timing of changes to current programs. In any event, it is clear that no targeted program should exclude disadvantaged, non-minority students. Moreover, any racial or ethnic targeting should be examined to determine whether it can be justified as being necessary to assure a reasonable prospect of success in dealing with the problem of low minority eligibility rates. 2. Application of SP-l and SP-2 Where There Are Contrary Federal and State Funding Requirements

Both SP-l and SP-2 provide that their prohibitions on use of race, religion, sex, color, ethnicity, and national origin shall not ". . .prohibit any action which is strictly necessary to establish or maintain eligibility for any federal or state program, where ineligibility would result in a loss of federal or state funds to the University."

In the review of state and federal law and regulations which has been undertaken, no current state requirements contrary to the provisions of SP-2 have been identified. Significant federal requirements for affirmative action plans under Executive Order 11246 require the University to conduct utilization analyses, set goals, undertake recruitment efforts to secure an adequate pool of applicants from underutilized groups and conduct statistical analyses of the selection process. There is, however, no federal requirement that race, ethnicity, or sex be used as positive factors in selection or post-employment practices.

The regulations under the Executive Order require some race-and-gender-attentive programs. Federal contractors are, for instance, required to analyze their work force to identify and correct problems. If, for example, a University location identified promotion of certain minority groups into management positions as a problem area (e.g., if there were significantly fewer promotions than would be expected on the basis of availability or qualified, interested candidates), a special training program with the identified objective of enhancing opportunities for promotion of minority candidates could be required. The program would be available to all interested employees, but identification of its affirmative action objective would probably be an essential element of assuring accomplishment of the objective and of showing the necessary good faith efforts to correct the problem. In the contracting area, some agencies still have, subject to post-Adarand review, some set-aside or goal-setting requirements which, to the extent they are found lawful following that review and maintained in effect, principally affect the DOE laboratories but may have some impact on large federal research contracts and grants at the campuses.

Analysis of federal and state funding requirements affecting SP-l is less fully developed given its 1997 effective date. Several federal grant requirements have, however, been identified which award competitive points to grant applicants for "successful" affirmative action programs. Those identified so far appear to encourage race-attentive outreach and retention programs but do not specifically refer to consideration of race, ethnicity, or gender in admissions. Given the apparent substantial competition for this grant money, an institution which did not have a good record of recruitment and retention of minority applicants would not be likely to compete successfully.

In summary, it is my opinion that the test to be applied in considering the effect of federal requirements in apparent conflict with SP-l or SP-2 is that such requirements will be found to be "strictly necessary," with the result that the SP-l or SP-2 requirements must yield to the federal requirements, if there is a good faith finding that the University would, in all likelihood, lose federal funding in the absence of a particular race-attentive effort. This office is prepared to review and provide and opinion as to the circumstances applicable to each relevant agency as they arise. 3. The Regents' Diversity Commitment Adopted to Apply to Both SP-l and SP-2 The following text was proposed by Governor Wilson and adopted by The Regents to apply to both SP-l and SP-2: "Believing California's diversity to be an asset, we adopt this statement: Because individual members of all of California's diverse races have the intelligence and capacity to succeed at the University of California, this policy will achieve a UC population that reflects this state's diversity through the preparation and empowerment of all students in this state to succeed rather than through a system of artificial preferences."

This provision does not, in my view, amend or modify the prohibitions of SP-l on the use of race, religion, sex, color, ethnicity, or national origin. Nor does it amend or modify the provisions of SP-2 establishing similar prohibitions in employment and contracting practices. What it does is to reaffirm The Regents' belief in the desirability of a student body and work force broadly reflective of all population groups in the state, including minorities and women. Thus, while the resolutions change the methodology of seeking such diversity from one that permits preferences based on race or gender to one which does not, they do not change the ultimate goal of diversity, a goal which continues to be expressed elsewhere in Regents' policies such as The Regents' 1988 policy on undergraduate admissions. 4. Financial Support Programs

Neither SP-l nor SP-2 references race-attentive financial support programs. As a result, the resolutions do not apply to University student support policies and practices with the result that no legally permissible financial support program requires revision at this time. In accordance with former President Peltason's request, the Office of the General Counsel has underway a review of race-attentive financial support programs to determine their conformance to current legal standards.

I hope these comments are of assistance. I will forward copies to Regents, Vice Presidents, and Chancellors for their information and I will be pleased to discuss any of these comments, of course.

Sincerely,


James E. Holst

JEH/set
cc: Members of the Board of Regents
Regents-Designate
Faculty Representatives
Vice Presidents
Secretary Trivette

Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu