A new California bill would allow two of the country’s largest public university systems to grant priority admission to slave descendants — but the effort is already prompting legal concerns and questions about how students would prove their eligibility. 

AB 7, introduced by Assemblymember Isaac Bryan, signals that reparations backers are gearing up for another fight despite several high-profile reparations measures fizzling out in the last legislative session. If enacted, the measure would allow the University of California, California State University, and “independent institutions of higher education” to use lineage-based admissions.

Long before the Supreme Court banned race-based college admissions in Students for Fair Admissions v. Harvard last year, California voters had repeatedly rejected allowing race-based college admissions. First in 1996, they passed Proposition 209 to prevent public institutions from granting preferential treatment on the basis of “race, sex, color, ethnicity, or national origin in public employment, public education, and public contracting.” Then, a ballot measure effort to repeal Proposition 209 failed overwhelmingly in 2020 — 57 percent to 43 percent. 

Mr. Bryan’s bill would not force universities to give priority admissions to a descendant of slavery but instead would allow them to “consider” it to the extent that it does not conflict with federal law. A “descendant of slavery” is defined in the bill as a “person who, based on lineage, is a descendant of a chattel enslaved person of American chattel slavery.”

The lack of clarity in the bill about how those descendants will be verified is already prompting questions from legal experts.

“Is it going to be the Cal States and the UCs that determine who is a descendant of an enslaved person, is it up to them to just have a check box that says ‘check here if you are a descendant of an enslaved person?” a Pacific Legal Foundation attorney and reparations task force director, Andrew Quinio, says in an interview with the Sun. “Is there some sort of audit or way of verifying applicants who claim they are descendants of enslaved persons?” 

A bill failed in the state earlier this year that would have created a state agency to determine how an individual’s status as a slave descendant could be verified, including by establishing a genealogy office. “Without that agency, it remains to be seen who would actually implement these preferences, if there even is going to be some sort of verification, or system of verifying people who are descendants of enslaved persons,” Mr. Quinio says. 

In addition to questions mounting about eligibility, the bill, should it be enacted, is unlikely to stand up in court, he says, despite being written that attempts “to survive a legal challenge.”

Although the bill says it only applies as long as it doesn’t conflict with federal law, in practice, it would conflict with both federal law and state law, Mr. Quinio says. The Supreme Court has explicitly stated that “Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” 

“When we’re talking about whether you’re a descendant of an enslaved person, we’re talking about ancestry,” Mr. Quinio says. “And ancestry here is a proxy for race, and that would be unconstitutional.”

Mr. Bryan’s office, when reached by the Sun, declined to comment about the eligibility process, instead saying there will be more information about the details of the bill in the coming months. In the meantime, his office pointed to his comments to the Associated Press, where he said that reparations are about more than “just cash payments.” 

“Repairing the harm and the inequality that came from slavery and the policies thereafter is a much bigger process,” he said. 

“For decades universities gave preferential admission treatment to donors, and their family members, while others tied to legacies of harm were ignored and at times outright excluded,” Mr. Bryan said. “We have a moral responsibility to do all we can to right those wrongs.”

The government shouldn’t be looking at “legacies of harm” but rather be treating people as individuals, Mr. Quinio says. 

“We can’t assume that someone was actually harmed because of who their ancestors were,” he says. “Because you could have a legacy of harm, but if that individual person has never themselves experienced discrimination or just experienced racism, that’s really what matters. And I think it would be unfair for them to benefit from a legacy of harm, or claiming to have a legacy of harm, when they themselves have not been individually harmed.”