Napolitano's Law-Breaking Scheme at UCal

This article originally appeared on Minding the Campus on November 17, 2013.

Janet Napolitano left her post as Secretary of Homeland Security in July to become the president of the University of California. The decision of the UC Regents to appoint her surprised me.  As I wrote at the time, she had "no discernible qualification" for the position—other than a politician's ability to raise money and a nearly Clintonian immunity to the scandals that seem to proliferate around her. 

Her first steps on the job suggest she is living up to her dubious promise.  Earlier this month she committed $5 million for financial aid and special counseling for illegal aliens who enroll in the University of California.  The official estimate is that about 900 "undocumented" students currently enjoy UC's taxpayer-funded academic programs.  In her previous job, Secretary Napolitano was in charge of escorting the undocumented to the other side of the border.  She set a record, having deported 779,000 people in 2009 and 2010, then topped her annual rate in 2012 by deporting more than 400,000.  All told, she ushered 1.2 million people out of the U.S. 

Her newfound affection for and readiness to fund illegal immigrant students—she calls them "Dreamers" after the Federal DREAM Act—shows a certain versatility.  She'd shown it before as Secretary when she asked for "prosecutorial discretion" to cut the level of deportations during President Obama's 2012 reelection campaign.  Latinos had swung behind Obama by 70 percent in 2008 but afterwards got nothing in the way of immigration reform.  The least the administration could do was tamp down the deports. 

An article in Politico by Glenn Thrush depicts Napolitano eyeing Eric Holder's post as Attorney General earlier this year and deciding to move on when it became clear that Holder intended to stay where he is.  Obama reportedly wasn't happy with her decision:  "Oh shit, Janet!"

Her move to fund illegal alien students at UC follows legislation signed by Governor Jerry Brown earlier this year that permits such students to apply for state grants and scholarships. 

Postdoctoral Subterfuge

Napolitano's decision to fund illegals overshadowed another part of her new plan for UC--the part that I want to pay particular attention to.  She announced that she wants to spend another $5 million for postdoctoral fellowships.  But not just any postdoctoral fellowships.  This money would be devoted to something called the President's Postdoctoral Fellowship Program, which is euphemistically described in UCLA Today as something "which directly supports recently graduated Ph.D.s who teach and conduct research at UC before beginning their careers in academia or industry."

It does indeed do that, provided the recently graduated Ph.D.s are women, members of approved minority groups, or gay.  A little digging brings one to the President's Postdoctoral Fellowship Program which proudly proclaims its goal:  "Advancing excellence through faculty diversity." 

On its face, the President's Postdoctoral Fellowship Program appears to flout California's Constitution, amended in 1996 by the successful ballot initiative Proposition 209, which specified that: 

The state 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.

Many of us have serious moral objections to racial preferences in higher education, both in admissions and in faculty hiring.  Discriminating on the basis of race and other forms of identity groups offends against the principle of equality in the most basic way.  It also undermines the ethos of higher education which requires that individuals be treated as individuals, not according to their accidents of birth or their allegiance to identity groups. 

Americans in overwhelming numbers and in most contexts share these moral objections to racial preferences, and that poses a problem for college and university administrators who are among the most ardent supporters of the idea of treating people differently depending on their racial and ethnic antecedents, their sex (now almost always rephrased as "gender"), and so on.  In California those pro-preference academic administrators are faced not only with adverse public opinion but with a Constitution that strictly forbids what they thirst to impose. 

Undermining 209

Ever since Proposition 209 passed, colleges and universities have sought subterfuges to get around it and ladders to climb over it.  Sometimes their tactics have had national implications as when, back in 2002, the College Board caved to pressure from Richard Atkinson, then president of the University of California, who threatened to eliminate the university's use of SAT scores.  The problem for Atkinson was that a disproportionate percentage of minority students in the state performed poorly on the standardized test, and under Proposition 209's requirement that all college applicants be measured by the same yardstick, poor SAT scores meant lower rates of minority admissions.  Solution?  Banish the SATs.  But Atkinson and the College Board reached a compromise.  The College Board agreed to cut from the SATs the portions of the test on which minority students performed worst.  Among the things to go were "verbal analogies." 

It was not a trivial loss. Analogical thinking is a crucial part of science and math as well as history, literature, and the arts.  The one part of the SATs most closely tied to intellectual creativity disappeared without even a puff of smoke—and all thanks to UC's determination to escape the law approved by a large majority of California voters.

Skip forward nearly a decade to 2011 and UC was still laboring to undermine the law.  That's the year the University of California and the University of Michigan struck a deal called "The Partnership for Faculty Diversity."  The idea was to "share common goals and resources" at the ten-campus UC system, the three UC-affiliated national labs, and the University of Michigan to create "post-doctoral research fellowships, faculty mentoring, professional development and academic networking opportunities" for women and minorities.  Or as the website puts it, for "scholars with the potential to bring to their academic and research careers the perspective that comes from their non-traditional educational background or understanding of the experiences of groups historically underrepresented in higher education."

The phrasing no doubt represents what lawyers thought could skate past Proposition 209.  Better to brush past the law if you can than to defy it outright.  This applies to Michigan as well as California.  In 2006, by a margin of 58 percent to 42 percent, Michigan voters passed an initiative--Proposition 2-- very similar to Proposition 209.  It is currently before the U.S. Supreme Court in a case called Schuette v. Coalition to Defend Affirmative Action, but in 2011 it was fully in effect and Mary Sue Coleman, the president of the University of Michigan, was working furiously to undermine it. Coleman began her resistance the day after Proposition 2 passed when she declared her intention to defy it:

I am deeply disappointed that the voters of our state have rejected affirmative action as a way to help build a community that is fair and equal for all.

But we will not be deterred in the all-important work of creating a diverse, welcoming campus. We will not be deterred.

So a "Partnership for Faculty Diversity" between California and Michigan made some tactical sense.  University administrators in both states had to deal with those pesky voters and their preference for equality over preferences.

Winners

But I doubt that the efforts of the lawyers to armor-plate the agreement made any difference.  The Partnership for Faculty Diversity was hitched on to the UC's already existing President's Postdoctoral Fellowship Program (PPFP), which dates back to 1984 and was created, in its own words, "to encourage outstanding women and minority Ph.D. recipients to pursue academic careers at the University of California."  The word "encourage" can mean many things, not all of which are discriminatory.  But at its core PPFP is precisely that.  At the moment there are 47 Fellowship recipients (30 new fellows; 17 continuing fellows).  Of these, 45 can be identified with Google searches as members of minority groups, female, or LGBT.  There appear to be three white males in the cohort, one of whom is a gay activist.  The other two, a cellular biologist and a mathematician, don't have an apparent minority designation—but then again, the minority designation of some of the other 45 isn't readily apparent either.  One of them, for example, is a highly promising neuroscientist in no need of a booster chair, but he is half Cherokee and therefore PPFP'd.

Is the dearth of white males a statistical fluke?  Hardly.  The purpose of these post-doctoral fellowships is to create a bullpen of promising minority and female doctorates who can be kept on the academic roster until a line position opens up in a relevant department on one of the campuses.  At that point, the UC discriminates again—and again.  If the candidate doesn't quite fit the position or isn't in the ballpark of best candidates, the campus administration claims to be able to suspend the regular faculty search and simply impose the minority candidate in the position.  And to quiet the expected resistance from the academic departments, the UC system money-bombs them with an $85,000 per year subsidy for five years.  Even this doesn't always quell the outrage from faculty members who hold to the belief that positions should be filled with the best possible candidates who actually fit the academic need. 

The UC campuses do have written rules for when the usual search procedures for academic appointments can be suspended.  Those rules say nothing about a PPFP exception and they don't appear to permit anything like the authority claimed by UC administrators to simply override a search and impose a PPFP candidate.  Not that academic departments always resist.  Some are only too eager to go down this path.  It appears that a fairly large number of the PPFP people are appointed to positions in the ethnic studies programs, which have a more relaxed attitude towards extra-procedural appointments.

Bounty Hunting

One might anticipate that the UC administrators would be cautious about admitting so flagrant a violation of the law.  But that would be to underestimate the contumely of UC administrators.  This is an instance where we have the smoking gun.  In a letter of September 4, 2013, Aimée Dorr, Provost and Executive Vice President of the UC system, instructs all of the university executive vice chancellors that the saloon is open for business.  Not every campus can expect the $85,000 per year five-year subsidy for minority faculty hires.  It is first-come, first-serve for twelve postdoctoral fellows elevated from the bullpen to starting positions.  Provost Dorr also explains that the system has been working splendidly:  In ten years it has placed 115 former PPFPs in faculty positions and ushered 52 of the 53 who had become eligible for tenure into tenured jobs.  How many would have made it on their own without state-sponsored discrimination?  No way to tell.  Here is Provost Dorr's letter, which deserves to be seen in its entirety:

Dear Colleagues:

The Office of the President will extend the hiring incentive for UC President's and Chancellors' Postdoctoral Fellowship Program participants for the next three academic years. As in the past, the incentive will be $85,000 per year for five years provided to campuses that hire current or former President's or Chancellors' Postdoctoral Fellows into ladder-rank faculty positions for hires effective 2014-15, 2015-16 and 2016-17. 

In the past ten years, this hiring incentive has been extremely successful. Over 115 former President's and Chancellors' Postdoctoral Fellows have joined the UC faculty since 2000 and several more are under serious consideration for future appointments. As of Spring 2013, 52 of the 53 faculty from these cohorts eligible for tenure received tenure. 

As in past years, campuses are encouraged to develop internal procedures for departments wishing to propose a faculty hire that would qualify for the President's and Chancellors' Postdoctoral Fellowship Program hiring incentive. These hires may be made pursuant to a regular search or by a waiver of regular search procedures. Notice of the funding will be included in the final budget allocation letters. 

The total number of incentives will be capped each academic year at 12 system-wide, awarded in chronological order by the date the offer is accepted. Please inform the President's Postdoctoral Fellowship Program office promptly when you initiate a case for hiring a former fellow and again when an offer is accepted. In past years, the number of faculty hired under the incentive has not exceeded 12 per year. Information about these programs is available on the web at: http://ppfp.ucop.edu/info/welcome.html

A complete list of President's and Chancellors' Postdoctoral Fellows eligible for the hiring incentive is available at: http://ppfp.ucop.edu/info/fellowship rec.html

I am looking forward to working with you in the next year to ensure the success of this and other initiatives to attract a faculty responsive to the needs of our increasingly diverse state. If you have any questions about the hiring incentive, please contact Sheila O'Rourke at (510) 643-6566 or [email protected].

Note that the date of the letter places it squarely in President Napolitano's wheelhouse.  Her announcement of her $5 million increase in funding for the President's Postdoctoral Fellows Program came two months later, on October 30. 

Tipped Off

I came across these developments as I often do: a faculty member tipped me off.  In this case, it was a senior member at one of the physical science departments in the UC system who is chagrined to see the rules for faculty searches suspended in the name of "enhancing diversity."  The administration on his campus upon being told by the academic department that the PPFP candidate "didn't meet any of the search" criteria, replied that the department should hire the candidate anyway. 

My correspondent is in the midst of this fight and to avoid complicating his situation any further, I'm withholding his name for the time being. He is by no means opposed to minority hires and makes clear that some of the faculty members who have come through the PPFP program are "superb scholars" who won their positions on their own merit without the preferences and incentives that the UC administration larded them with.  

His whistle-blowing on his own campus may have interrupted the business of overriding departmental searches to impose PPFP candidates.  I can't tell whether that ripple has reached the rest of the UC system.  

Priorities

President Napolitano has been in her new position for enough time to look around and decide on her priorities.  In her October speech she narrowed these to three:  $5 million in public financial support for "Dreamers," as she calls illegal aliens who enroll in UC; $5 million in additional support for the Prop. 209-busting program to use minority group preferences in faculty hiring; and another $5 million "to recruit top-notch graduate students worldwide."  On that last one, I've not been able to find any further information.  Another "diversity" expense?  Possibly.  A few weeks after announcing these initiatives, Napolitano also announced that she intends to continue UC's tuition freeze for a third year.  This is a relief to many, after years of 15 percent annual increases.  Yet it is clear that UC still has money to burn.  As Heather Mac Donald earlier this year reported in City Journal, even as UC administrators lamented the necessity of cutting back academic programs, they were continuing their spending spree on "diversity."  Mac Donald, among other things, documented how the campus diversity enforcers in the administration impose on the faculty the sorts of diversity hires I've been describing. 

Why is Napolitano embracing this form of academic corruption?  Maybe she just believes in the doctrine preached by that perfectly named group that is part of the Michigan case before the U.S. Supreme Court: the Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN).  But then again, the any-means-necessary approach has on occasion led to physical intimidation, violence, and lawlessness, which surely cannot be what Napolitano wants.