In 1983, the University of California, San Diego, created the Black Alumni Scholarship Fund (BASF). Operated and funded by the university, the scholarship subsidized the tuition of black students—who at that time made up just 2 percent of UCSD—and provided them with mentorship and study abroad opportunities.
Then Proposition 209 passed.
California’s ban on affirmative action, which went into effect in 1997, meant that state universities could no longer offer scholarships like UCSD’s. But rather than shut down the program, the university found a loophole to keep it up and running.
With help from private donors, UCSD transferred the scholarship to an off-campus nonprofit, the San Diego Foundation, that was not subject to Prop. 209. The move allowed the scholarship to continue operating under the auspices of a private institution, even though the program is only available to UCSD students and uses racial data provided by the university.
Now in its 42nd year, BASF has doled out more than $800,000 on behalf of UCSD. It is part of a family of race-based programs, including those in Texas and Michigan, that are financed by private nonprofits but support students at public schools, an arrangement critics say is used to outsource discrimination to the private sector.
A new lawsuit threatens to chip away at the legal foundations of that arrangement. In a complaint filed against UCSD and the San Diego Foundation on Wednesday, a conservative law firm is arguing that both entities conspired to deprive students of their civil rights, thereby violating a 19th-century law meant to rein in racial vigilanteism.
The Ku Klux Klan Act bans conspiracies of both public and private actors that deprive “any person … of the equal protection of the laws.” It was passed in 1871 to counter the Klan’s lawless intimidation of black voters. But it is being used today to challenge the Black Alumni Scholarship Fund, which Wednesday’s lawsuit describes as a “conspiracy to interfere with civil rights.”
The plaintiffs are the Californians for Equal Rights Foundation, a nonprofit opposed to racial preferences, and a white junior at UCSD, Kai Peters, who is ineligible for the scholarship. Filed by the Pacific Legal Foundation, their complaint alleges that “UCSD conspires with BASF to award scholarships based on race.” And it specifically cites the KKK Act, now known as section 1985, as a controlling authority in the case.
“Section 1985 was passed in the 19th century to protect Americans from the government outsourcing racial discrimination to private parties,” said Haley Dutch, an attorney at Pacific Legal. “In the 21st century, that protection remains vital. Californians for Equal Rights is committed to upholding the promises of equal treatment in both the California and U.S. Constitutions—even when the government tries to use loopholes to evade them.”
The complaint’s novel application of a 150-year-old law could have implications for a host of race-based scholarships run by private nonprofits. In theory, those foundations can hand out cash to whomever they please as long as the gifts do not create a contractual relationship. But if they use race-based criteria at the behest of the state—with the express goal of circumventing civil rights law—the KKK Act comes into play, Dutch said.
That could be a problem for programs such as UC Berkeley’s African American Initiative Scholarship, which is funded by the private San Francisco Foundation, or the multiple race-based scholarships at the University of Texas at Austin, which are administered by a private alumni association.
“In principle, § 1985 could apply to any racial discrimination by a nonprofit that is so intertwined with a university that it essentially serves a government function,” Dutch said. “In practice, it will of course depend on the facts of each case.”
UCSD states on its website that the Black Alumni Scholarship Fund was transferred to a private nonprofit “due to Proposition 209.” The scholarship has been promoted by the school’s leaders, including UCSD chancellor Pradeep Khosla and the university’s vice chancellor for equity, diversity, and inclusion, Becky Petitt. And at least 8 of the 17 people on the scholarship’s board are current or former UCSD employees or trustees.
“Though BASF is now nominally a private program, it still operates as a UCSD Scholarship,” the lawsuit reads. The plaintiffs “ask this Court to vindicate a principle that has been long enshrined in American law—that the government cannot outsource racial discrimination to a private party.”
UCSD and the San Diego Foundation did not respond to a request for comment.
While this is the first time the KKK Act has been used against a race-based scholarship, it is far from the only creative interpretation of the law to be advanced in recent years. In a 2020 lawsuit against President Donald Trump, the NAACP argued that Trump had conspired with the Republican National Committee to “disenfranchise black voters” by challenging the results of the election. A few months later, the NAACP filed a separate lawsuit against Trump, Rudy Giuliani, and several groups involved in Jan. 6, alleging that they had conspired to prevent the election from being certified.
“I guess it tells you something when you can use a Ku Klux Klan law from the 1870s,” Brian Levin, director of the Center for the Study of Hate and Extremism at California State University, San Bernardino, told NBC news at the time. “Everything old is, unfortunately, new again.”
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