In light of bake sale, renewed controversy surrounds legality of SB 185

With national uproar sparked by a bake sale set to descend Tuesday on Sproul Plaza, the root of the issue might go overlooked — SB 185, a piece of affirmative action-like legislation currently awaiting Gov. Jerry Brown’s signature.

The constitutionality of the bill — which would allow the UC and CSU to consider factors such as race, gender, geographical origin and household income in student admissions — has been questioned due to its similarity to affirmative action.

Opponents of the bill — authored by state Sen. Ed Hernandez, D-West Covina — say it goes against Proposition 209. The proposition, approved by voters in 1996, effectively ended the use of affirmative action by forbidding preferential treatment for any student on the basis of race, gender, economic status or ethnicity.

The bill must be signed or vetoed by Oct. 9, according to Brown spokesperson Evan Westrup.

Much of the controversy now surrounding SB 185 relates to whether being able to “consider” race and other factors in a student’s admission would be the same as giving a student “preferential treatment.”

Pedro Salcido, senior district representative for Hernandez, said the bill would not be unconstitutional because “affirmative action in its pure definition calls for some type of preferential treatment and additional weight given.”

“This bill doesn’t call for that at all,” he added. “It just permits the university to include (those factors) in the admissions process. If you’re going to implement a holistic admissions process for the university, it should be a factor.”

According to UC spokesperson Ricardo Vazquez, under current law, students applying to the UC system  report details regarding their race, household income and national origin. However, this information is used for statistical purposes only and is blocked from view to those who review university applications for admission.

Ward Connerly — former UC Regent, president of the American Civil Rights Coalition and considered by many to be a driving force behind Proposition 209 — has stated several times that he strongly opposes the bill due to questions of legality.

“If you don’t care about the constitution, then you go ahead and pass this,” he said. “But if you do care about the constitution, then it shouldn’t be at the governor’s desk. Sen. Hernandez is thumbing his nose at the will of the people.”

Connerly also said that if Brown does sign the bill, he thinks its passage would result in a multitude of lawsuits brought against the state regarding SB 185’s legality, which California cannot afford.

However, according to Salcido, Hernandez’s office has had the bill reviewed by attorneys and the judiciary committee, all of whom believe SB 185 conforms with state and federal law.

Last year as a state assemblyman, Hernandez introduced AB 2047, a similar bill which was vetoed on Sept. 30, 2010, by former governor Arnold Schwarzenegger over questions of its legality.

UC spokesperson Steve Montiel said the UC Office of the President will not produce a formal opinion on the bill.

“Despite the significant concerns of legality in its implementation, we support its underlying goal and would welcome additional tools to achieve a more diverse student body — but we are neutral,” he said.

Jessica Rossoni covers higher education.