California bill would allow slavery legacy to be factor in college admissions

Affirmative action for racial minorities seeking admission to college has been barred by California’s voters and, more broadly, by the U.S. Supreme Court. But legislation approved by the state Assembly seeks to find a way around those restrictions by allowing the schools to give preference to descendants of slavery in the United States.

“This bill is not about race. It’s about relationship to a legacy of harm,” Assembly Member Isaac Bryan, D-Los Angeles, said Wednesday, a day after his bill, AB7, won Assembly passage on a party-line vote of 54-17. It now heads to the state Senate, and Bryan said he was optimistic that the measure would become law.

But the Pacific Legal Foundation, a conservative nonprofit, said AB7 was aimed at restoring preferential treatment based on an applicant’s race, despite its slavery-descendant language.

“The idea that either (California’s) Proposition 209 or the (U.S. Constitution’s) Equal Protection Clause would countenance intentional discrimination on the basis of ‘lineage’ or ‘ethnicity’ is preposterous,” Joshua Thompson, an attorney with Pacific Legal, said Wednesday. “It’s like banning racial segregation in schools, then assigning students based on their grandparents’ surnames — it’s just Jim Crow with a thesaurus.”

And a staff analysis by the Assembly Judiciary Committee said the bill “walks close to, and arguably may cross, a line” drawn in the California Constitution by the voters with Prop 209, a 1996 ballot measure that prohibited state institutions, including colleges and universities, from giving preferential treatment to applicants based on race, sex or ethnicity.

An initiative that would have repealed Prop 209 and restored affirmative action was rejected by the state’s voters in 2020. And in 2023 the Supreme Court went further and ruled in a suit by white and Asian American students that affirmative action in any educational institution, public or private, was an unconstitutional act of racial discrimination.

The Supreme Court may again have the final word if AB7 wins state Senate approval and is signed by Gov. Gavin Newsom. Newsom has not spoken publicly about the bill, but Bryan, vice chair of the Legislative Black Caucus, said the governor has discussed the “legacy of slavery” in annual meetings with the caucus and signed several caucus-sponsored bills last fall , including one that formally apologized for the state’s role in slavery.

One example of that role was an 1852 state law requiring Californians to assist in capturing escaped slaves and returning them to their owners in other states.

Bryan’s bill would not apply to all Black college applicants in California, only to those who could show they were direct descendants of U.S. slavery. The Assembly Judiciary Committee staff said someone like former President Barack Obama would not qualify because his father emigrated from Africa long after the United States had abolished slavery.

In addition, the committee staff noted, some Americans who identify as white have learned from recent DNA tests that they are of African descent, which could qualify them for coverage under AB7. And as Bryan noted in Wednesday’s interview, the bill would allow, but would not require, colleges and universities to give favorable consideration to applicants descended from slaves.

For many years, Bryan told lawmakers, California universities “have given preferential admission treatment to donors and their family members, while ignoring those directly impacted by legacies of harm.”

A supporting group, Black Women Organized for Political Action, said AB7 “enables California institutions to consider the lineage-based harm experienced by descendants of enslaved individuals. … It reflects a commitment to repairing past harms while respecting present-day legal constraints.”

But the Pacific Legal Foundation said that even though the bill “omits any direct reference to race or ethnicity, its context, purpose, and effect demonstrate that it is a proxy for race,” violating state and federal law.