Complaint Hits UC's Admission Policies

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Saturday, January 11, 1997 Page A1
©1997 San Francisco Chronicle

Novel tactic to fight affirmative action ban

Pamela Burdman, Chronicle Staff Writer

Just as the University of California is preparing to select its

first class of graduate students under the Board of Regents' ban on

affirmative action, civil rights lawyers are employing a novel legal

strategy in an attempt to show that the new admissions policies violate

federal law.

In a complaint filed yesterday with the U.S. Labor Department,

lawyers with the Los Angeles offices of the NAACP and the Mexican American

Legal Defense and Education Fund argue that because most graduate students

work as employees, they should be covered by the affirmative action plan

that UC already is required to maintain as a federal contractor.

The attorneys charge that admitting graduate students is tantamount

to preselecting them for jobs ranging from teaching assistants and

researchassistants to interns and residents.

``UC has abandoned its obligations to ensure equal employment

opportunity in these graduate student job titles and to engage in

affirmative action efforts to address any underutilization of minorities

and women in these employment positions,'' the complaint says. ``Immediate

action to restrain this violation is necessary to prevent serious

irreparable harm.''

The first students to be affected by the affirmative action ban in

admissions are those applying to attend UC's graduate and professional

schools next fall. Nearly 10,000 students will be admitted this spring, and

the majority of them will work as employees during their time at UC.

``There's a strong connection between hiring and the admissions

process in general,'' reads the complaint. ``In some departments, they're

virtually indistinguishable.''

UC lawyers said they considered the question of graduate students

when they reviewed all federal contracting regulations last year. ``We are

confident that our programs are in compliance with current requirements,''

said general counsel Jim Holst in a statement.

Employment discrimination lawyers said it is hard to predict how

the Labor Department's Office of Federal Contract Compliance Programs might

handle such a case because the office will first need to address the

complicated issue of whether graduate students should be considered

employees.

``It's interesting and it's ingenuous, but it's not a sure-fire

winner,'' said Jan Vetter, a professor of employment law at Boalt Hall

School of Law in Berkeley.

``They're bringing up a legal issue that I doubt has ever been

addressed before,'' said Helene Haase, regional director of the federal

office that will be handling it. ``We're certainly going to give it a high

priority because it's an important issue in California. We'll be handling

it with dispatch.''

The Office of Federal Contract Compliance Programs reviews

complaints involving employment discrimination at firms that receive

federal contracts. It often takes several months to decide whether a

contractor is violating federal law. In extreme cases, the employer can be

barred from receiving future contracts, but more often, a contractor will

agree to develop an affirmative action plan -- or improve its existing

plan.

Haase could not say how long the investigation will take, but her

office would have to move extremely fast to reach a decision before the

class for next fall is picked. For most schools and departments, students

will be selected by March or April.

UC receives more than $1 billion a year in federal grants and

contracts. Like allfederal contractors, the school must maintain goals and

timetables for hiring women and minorities in fields where they are

underrepresented.

STUDENTS OR WORKERS?

But although about half of UC's current graduate student population

of 40,000 work at the university in some capacity, UC has considered them

primarily students -- not employees. Students trying to gain collective

bargaining rights at UCLA and UC San Diego have won a preliminary ruling

saying they are employees, but a similar case filed by graduate student

teaching assistants at Berkeley was rejected by the courts in 1992.

``Graduate students have not been historically covered by the

federal executive order on affirmative action and no such requirement has

been imposed to date,'' said Holst of UC. ``Even if the university were to

be required to have an affirmative action plan for graduate students

performing research and teaching services, we are aware of no federal

requirement that a university make race- attentive admissions decisions.''

In a resolution passed in July 1995, UC regents eliminated the use

of race, ethnicity and gender in hiring, contracting and admissions. The

hiring and contracting provisions took effect last year -- but the

university is still required to keep an affirmative action plan because it

is a federal contractor.

BLOCK ON 209 DOESN'T APPLY

A federal court has blocked implementation of Proposition 209, the

anti-affirmative action measure approved by voters in November. But the

injunction does not apply to UC, because of the resolutions passed by the

regents in 1995. UC Davis law professor Martha West said the civil rights

groups' case could forge new territory for employment discrimination law.

She said the case could supplement a long history of history of litigation

involving race discrimination in admissions to training programs of all

kinds -- including police academies.

``If I were in the Clinton administration, I would take this

seriously,'' she said.

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Carl Gutierrez-Jones,

Department of English

University of California

Santa Barbara, CA 93106

E-mail: carlgj@humanitas.ucsb.edu