As horrible as discrimination is, it is even worse when it is mandated by the government, which is exactly what a proposal by the University of California (UC) currently under consideration by the UC Academic Senate would result in if adopted.
The University of California is considering a proposal that would have the effect of not only requiring students to be indoctrinated in bias but also subjecting those students to a program that delegitimizes their very existence. The proposal is one that on its face is innocuous, but it is designed to ensure that one group that has a long track record of promoting antisemitism may be in charge of creating and helping to implement a course in ethnic studies that will become a requirement for admission to California’s flagship university system (one that is paid for by California taxpayers).
While forcing students to learn to hate themselves is reprehensible as a matter of policy, we believe it is also a violation of the First Amendment.
Many families in California expect that their children will have an opportunity to attend a UC campus and, in fact, admission to a UC campus is a legal right for each student in the top 9% of their class. The proposed new admissions requirement for the University of California, however, will require that each prospective UC student complete a high school ethnic studies course that will likely be in line with a model curriculum that is openly antisemitic. As a result, California high schools are expected to require completion of this curriculum, including private Jewish schools.
This will force parents to make a choice for their children: give up the right to attend the University of California or be subjected to a program of delegitimization and hate so they can realize the benefits of the UC system.
Under a legal theory known as the unconstitutional conditions doctrine, this kind of choice is patently unconstitutional.
An unconstitutional condition exists where “government offers a benefit on condition that the recipient perform or forego an activity that a preferred constitutional right normally protects from government interference.”
All three basic elements of this doctrine are met by UC’s ethnic studies proposal:
First, there must be someone or something (such as a governmental entity, like a state, or a corporate entity) with rights protected by the Constitution. Second, the government has to choose to provide a benefit where it is not otherwise required to do so. Finally, the government must condition the provision of the benefit on the rightsholder waiving its right.
In the case of the ethnic studies proposal, it’s clear that the unconstitutional condition is most applicable to situations where Jewish private schools, particularly those that include instruction on ethnic and religious identity and pride, will be forced to include teaching that is dictated or guided by a group promoting antisemitism.
Many parents choose private schools specifically to ensure that their children have a positive sense of identity and knowledge of their backgrounds, as well as the best education in traditional topics, with the additional goal of qualifying for admission to the University of California system. The ethnic studies proposal is a regulation that will impact hardest ethnic and religious minority groups, especially those with a lower income, as the University of California system often represents the only affordable option for quality higher education. It would be difficult to find a more pernicious abuse of governmental power.
The imposition of unconstitutional conditions by government, especially on a critical right such as higher education, is a fundamental attack on the freedoms guaranteed by the Constitution.
The proposed ethnic studies requirement is a textbook example of an unconstitutional condition. Parents hold the right to provide an education for their children (and private schools hold the right to determine what they teach), the government benefit is taxpayer funded higher education available to all state residents (including a guarantee of admission for the top 9% of students) and the government will condition the government benefit on the students being indoctrinated in materials that strike at the heart of their identities, in violation of the First Amendment’s guarantees with regard to expression and religion.
The ethnic studies proposal is meant to remedy what some see as a system that has institutionalized discrimination. There are many ways to combat such discrimination, but state-mandated discrimination must not be one of them.
Marc Greendorfer is the President and co-founder of Zachor Legal Institute, a non-profit civil rights advocacy organization combating discrimination.