Administrators at the University of California at Berkeley believe they have found a loophole in the state’s constitutional ban on affirmative action that will allow them to create an African-American scholarship fund.

“For too long, African-Americans on our campus have faced obstacles to feeling fully included in the life of our university,” Chancellor Nicholas Dirks said earlier this month in a press release announcing the program, which is described as “a comprehensive effort to address the underrepresentation and campus climate for African-American students, faculty and staff.”

"I think it’s likely that the climate and sense of inclusion would be much more healthy at double our current representation."

In addition to establishing a $20 million scholarship fund earmarked for African-American students, the UC Berkeley African-American Initiative will also undertake other efforts to boost “recruitment and yield” of black undergrads and faculty; enhance the social, personal, and academic support provided to current and future African-American students; and “improve the classroom climate, including training and pedagogical resources for faculty and Graduate Student Instructors.”

Berkeley identifies three goals for the initiative: achieving and sustaining a “critical mass of African-American students, faculty, and senior staff;” ensuring that African-Americans “feel welcome, supported, and respected;” and delivering the message “that Berkeley is a welcoming place for African-Americans.”

In an interview with Berkeley News, outgoing vice chancellor for equity and inclusion Gibor Basri, who helped spearhead the initiative, explained that the definition of critical mass in this context “depends on your history, your place in society,” but said that the UC Undergraduate Experience Survey (UCUES) offers some potential guidelines.

“There’s UCUES data that shows level of respect perceived by different populations as a function of their percentage of the population on campus,” he said, claiming that perceptions of respect typically peak once a given demographic reaches about 20 percent representation. Black undergraduate enrollment at Berkeley is about three percent, roughly half of the African-American share of the state’s overall population.

“I think it’s likely that the climate and sense of inclusion would be much more healthy at double our current representation,” Basri suggested, adding, “[t]hat’s what it was at Berkeley prior to Proposition 209.”

Proposition 209, a state constitutional amendment passed by voters in a 1996 referendum, stipulates that the state, including political subdivisions such as the University of California system, “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

Basri told Berkeley News that he believes the initiative effectively circumvents the amendment, because it involves recruitment efforts rather than admissions policies.

“From my point of view, we chose recruitment and yield specifically so as not to directly face the constraint of Prop. 209,” he said. “Both the recruitment and the yield pieces of the African-American initiative avoid that issue directly. We’re talking about getting more people to apply, and then taking the people who are admitted through our race-blind, holistic process, and trying to get them to come.”

An FAQ sheet on the university’s website also asserts that the scholarship fund will be privately administered in partnership with non-profit organizations, and will only be available to “admitted African-American undergraduates, many of whom receive scholarship offers from other institutions that are beyond our current financial aid abilities.”

In an article for National Review, however, John Rosenberg points out that Proposition 209 “bars race preferences not just in admissions but everywhere” in public education, employment, and contracting.

Noting that the initiative’s “avowed purpose … is to attract more black students so that current black students will feel more comfortable,” Rosenberg suggests that the loopholes Berkeley is seeking to exploit “may be insufficient for it to pass legal muster.”

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