The University of California San Diego recently opened a blacks-only scholarship to students of all races following a lawsuit against it by the Pacific Legal Foundation (PLF).
PLF filed a lawsuit against the university, arguing that the race-based scholarship violated the Ku Klux Klan Act, an 1871 law that prevents government officials and private groups from working together to infringe upon equal protection rights.
UC San Diego had attempted to circumvent legal limits on race-based scholarships by moving the Black Alumni Scholarship Fund to a private nonprofit, to get around the ban on race-based scholarships contained in Article 1, Section 31 of the California State Constitution.
UC assisted the race-based scholarship by giving it the the names and contact information of all black admitted students so it could send invitations exclusively to black students.
The scholarship publicly stated that “100% of BASF Scholars identify as Black/African American,” and claimed it could get away with limiting the scholarship to blacks because it operated with private funding and thus supposedly was not bound by Article 1, Section 31 of the state constitution.
Minding the Campus notes that UC administered the scholarship for 42 years, awarding over $1 million to more than 400 black UCSD students.
However, after PLF sued, UC renamed the scholarship the “Goins Alumni Scholarship Fund” and opened it to students of all races, to try to get PLF’s lawsuit dismissed.
PLF then dropped its challenge because it had become moot, notes a PLF press release.
“This victory proves that the Constitution’s promise of equality before the law still has teeth,” says PLF attorney Jack Brown. “The Ku Klux Klan Act was written to stop government actors from conspiring with private parties to discriminate—and that’s exactly what happened here. When faced with the law, UCSD and its affiliates had no choice but to retreat. The action here is exactly what we demanded in our lawsuit.”
PLF’s Haley Dutch says the KKK Act applies “to any racial discrimination by a nonprofit that is so intertwined with a university that it essentially serves a government function,” like the BASF scholarship at UC.
The Free Beacon says PLF used “a novel legal strategy that could be used to challenge similar programs.”
Earlier this year, the federal Justice Department declared that “race based scholarships,” “preferential hiring,” and other DEI initiatives are “unlawful practices.” Thus, any “scholarship fund[s] exclusively for students of a specific racial group” is unlawful, it said.
In 1994, a federal appeals court ruled that a blacks-only scholarship at the University of Maryland was unconstitutional, but it left open the possibility that a race-based scholarship could be legal if it was designed to remedy the present effects of recent past intentional discrimination by the school that hands out the scholarship, and left open the possibility that scholarships can consider race as one of many factors if they do not categorically exclude students of any race. (See Podberesky v. Kirwan (1994)).
