
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
(Back to top)
(AAD Homepage)
- Carl Gutierrez-Jones,
- Department of English
- University of California
- Santa Barbara, CA 93106
- E-mail: carlgj@humanitas.ucsb.edu