It’s a victory for a new legal theory that stipulates universities can’t outsource racially discriminatory scholarship programs
Geisel Library at UC San Diego (Wikimedia Commons)
The University of California, San Diego has eliminated a scholarship for which only blacks are eligible after a conservative nonprofit challenged its legality under the Ku Klux Klan Act, vindicating a novel legal strategy that could be used to challenge similar programs.
UCSD had transferred the scholarship, the Black Alumni Scholarship Fund, to a private nonprofit in order to get around California’s ban on racial preferences. In July, the Pacific Legal Foundation filed a lawsuit against the program, alleging it violated a 19th century law, the Ku Klux Klan Act, that bans conspiracies to deprive people of their civil rights.
The complaint argued the arrangement between UCSD and the nonprofit was one such conspiracy. Rather than take its chances in court, the university renamed the program the “Goins Alumni Scholarship Fund” and opened it to students of all races, according to updated webpages for the program. The Pacific Legal Foundation dropped its case against the school on Monday, saying its clients were satisfied with the changes.
“This victory proves that the Constitution’s promise of equality before the law still has teeth,” said Jack Brown, an attorney for the group. “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, UC San Diego had no choice but to retreat.”
The outcome is proof of concept for a creative legal strategy that could spell the end of similar programs across the country. Several public universities, including the University of California, Berkeley and the University of Texas at Austin, have outsourced race-based scholarships to private foundations in an effort to insulate themselves from legal risk. While such foundations can dole out money based on race, they cannot do so at the direction of the state.
“In principle, [the Klu Klux Klan Act] could apply to any racial discrimination by a nonprofit that is so intertwined with a university that it essentially serves a government function,” Haley Dutch, an attorney for the Pacific Legal Foundation, previously told the Washington Free Beacon. “In practice, it will of course depend on the facts of each case.”