UCLA Ordered to Trial on Free College Case Tackling 3% Black Enrollment.

In a landmark case that could shake up the university landscape for generations, UCLA was ordered on September 16, 2020 by a Los Angeles judge to stand trial to defend charging tuition for many of its educational products. The case seeks to establish a state Constitutional right to completely free college educational materials. The judge ordered the trial to begin on March 22, 2021. At the hearing, it was estimated that the trial would likely last up to a full court week.

The California Constitution says, “the writings of public officials and agencies shall be open to public scrutiny.” Cal. Const., art. I, § 3(b)(1). Publicly funded colleges spend billions to create educational writings. These writings must be “open to public scrutiny” for free as the state Constitution demands.

We brought this case to challenge UCLA’s policies of grossly inflated tuition and their egregiously inappropriate level of diversity. At only 3% Black undergraduate enrollment, UCLA has 4.5 times fewer Black students than is proportionate. We also want this case to serve as a model for how to route around anti-progressive Trump appointed judges.

UCLA’s response has been nothing short of choosing money over morals.

UCLA submitted a statement to the Court saying, “this is simply an attempt to obtain free course material without paying tuition.” According to UCLA, “This would diminish the educational value for students who work tirelessly to partake in the education and effectively repel professors from teaching at any California public university.”

For a university, this is a terribly cynical argument. Essentially, UCLA is making the case that tuition serves as a desirable barrier that keeps the wrong types of people from learning.

UCLA wants the Court to believe that by keeping most of the underprivileged people from its education, UCLA’s current students and professors will gain at the expense of the less fortunate.

At a time when the nation is gripped by a reckoning on race relations, it is worth examining what impacts UCLA’s statements to the Court mean for persons of color. UCLA says that in its entire undergraduate program, only 3% of students are African American. admission.ucla.edu/campusprofile.htm

The Census reports people checking “Black or African American alone” comprise 13.4% of the country.

This disparity is intense. If Black students were represented proportionally, there would be four and a half times as many Black undergraduate students at UCLA.

Every time you see a Black UCLA undergraduate student, you should really be seeing at least quadruple that number if not more.

As a progressive legal organization, we’ve watched as Donald Trump has stacked the federal courts with biased and regressive judicial nominees in courts across the country. From lower federal courts in every state to a Supreme Court now gripped by the terrible passing of the legendary Justice Ruth Bader Ginsburg, Trump is making an ugly mark on the judiciary.

Our solution has been to route around Trump’s judicial appointments altogether. Federal laws and constitutional provisions are generally litigated in federal courts. State laws and constitutional provisions are often fought over in state courts.

Our strategy is to always look for a state law or constitutional principle that covers the same ground as the applicable federal rule. Trump has no power over state courts, so they are unaffected by his biases. By the time progressives retake the federal courts, there will be a deep arsenal of progressive judicial opinions generated in state courts to rapidly adopt at the federal level.

We filed a lawsuit against UCLA asking for a court order that they disclose all taxpayer funded college materials to the public at absolutely no charge. Because UCLA gets billions of taxpayer dollars, all of their material is funded largely by everyone in the community.

The lawsuit is in state court and is being heard by a judge who has nothing to do with the Trump administration.

UCLA’s defense is a desperate attempt to distract from the very clear language of the law that happens to conflict with UCLA’s business model. When it doesn’t cost the university money to support diversity, they claim to be all for it.

When their business model is at stake, suddenly letting the underprivileged learn would “diminish” the value for current students and “repel professors from teaching.” This language is nothing short of dehumanizing.

In order to submit this defense, UCLA is relying on what is called a “6255 exemption.” This is a very difficult argument to make.

In order to win, UCLA must prove “on the facts of the particular case the public interest served by not making the record public clearly outweighs the public interest served by disclosure of the record… Its remand for a clear overbalance on the side of confidentiality casts the burden of demonstration upon the proponent of confidentiality.” Black Panther Party v. Kehoe (1974) 42 Cal.App.3d 645, 657

To protect its business interests, UCLA is painting a picture of the horrors of too many underprivileged students learning from UCLA courses. UCLA contends this would be so dangerous for the public that students would place much less value on their education and professors would flee in droves.

UCLA wants the Court to believe the impacts to current students and professors would be so grave, that it would massively offset all of the benefits of a free education to the society as a whole.

The legacy of slavery, Jim Crow, discrimination, privilege, and supremacy have all contributed to fewer Black people who are able to afford UCLA’s overpriced tuition. A Brookings study found systemic racism has led to a ten-to-one wealth gap between Black and white families. This gap has real consequences for what types of people can afford UCLA’s tuition.

This means UCLA’s anti-inclusion policies fall ten times more harshly on Black families than white ones.

When UCLA says letting people who cannot afford tens or hundreds of thousands of dollars to learn poses huge risks to society, they are saying that groups who have faced generations of attacks on their ability to build wealth are not worthy of being educated.

When UCLA says letting underprivileged people learn will “diminish” the value of learning for current students and “effectively repel professors from teaching,” they are adopting supremacist language.

This rhetoric perfectly mirrors what white supremacists have always said when marginalized communities seek access to their spaces. It captures entirely the essence of “white flight.” In other words, the “right type of people” might leave if the “wrong type of people” are welcomed.

Only 3% of UCLA’s undergraduates are Black. So who exactly does UCLA think they are fooling when they make these arguments of anti-inclusivity?

We filed this lawsuit because taxpayer funded college materials are paid for by the public. Under the California Constitution, that means they are legally owned by the public. UCLA has no right to “gate keep” them and prevent underprivileged people from learning. The case is called Attorney IO News, LLC v. Regents of the University of California, Case No. 19SMCV01228 at Los Angeles Superior Court.

As mentioned earlier, the California Constitution says, “the writings of public officials and agencies shall be open to public scrutiny.” Cal. Const., art. I, § 3(b)(1).

The first question to ask is then, does college material constitute a “writing” under this section? We think it’s clear that the answer is yes. The California Public Records Act is the law responsible for implementing this Constitutional guarantee. This law says a “writing” includes any “means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created.” Government Code § 6252(g).

This provision is purposefully very broad. We believe it clearly covers any educational material created by UCLA and other publicly funded colleges.

The next question is, is UCLA a “public agency” under the law? We think the answer to that is clearly yes. The University agrees with us on this point. The University of California itself admits, “The University of California, established under article IX of the California Constitution, is included among agencies governed by the California Public Records Act (PRA) and Information Practices Act (IPA). This fact is acknowledged in UC records policies.” libraries.universityofcalifornia.edu/content/california-public-records-act

The next question asked in our case is: can the University charge many thousands of dollars for these public records? We think the answer is also clearly that they cannot.

The law says publicly funded agencies “shall make the records promptly available to any person upon payment of fees covering direct costs of duplication.” Government Code § 6253(b).

In cases where the University is simply sending an email with attached materials, that means the records must be free. When records are asked to be sent electronically, “The cost of duplication shall be limited to the direct cost of producing a copy of a record in an electronic format.” Government Code § 6253.9(a)(2).

The direct costs of sending an email are nothing. So, that means the records must be given for free as well.

Our goal is to establish a right for anyone to get access to any college course at a California public university. Once we establish this right, it would be as simple as sending an email. We are also working to offer such materials on our own website if possible.

We promise to never charge for any such material. Taxpayers paid for this education once, they shouldn’t have to pay twice.

The California legislature very specifically considered educational material when passing the law. It considered the benefits and harms and sided overwhelmingly on the side of free disclosure. There is one minor and reasonable exception. The law excludes “Test questions, scoring keys, and other examination data used to administer… [an] academic examination.” Government Code § 6254(g).

We agree with this exception and do not challenge it in our lawsuit. It rightfully prevents students from asking universities for exam questions prior to taking the tests. This prevents cheating.

However, the narrowness of this exception makes clear that the vast majority of university materials are subject to the free disclosure requirements of the law.

We also recognize the real value that can come with showing future employers that you have learned the material. This is a significant benefit of college that cannot be ignored.

That is why we will ask everyone who completes a course to come up with and submit at least one potential test question from their understanding of the material. We will then assemble some of these questions into our own exams, and host such exams for free. This means the entire college academic experience from learning to showing competence could be replicated for free.

The first phase of our lawsuit focuses on just UCLA. We are starting with undergraduate and Extension courses that teach people to become computer programmers. This is because of a Washington Post report finding the average self-taught computer programmer earns a six-figure salary. This makes the most sense as a starting point to make the quickest impact on reducing income inequality.

Still, this is just the beginning. Turning over course materials for every course will take time. However, the legal principle of requiring free college materials will apply to all publicly funded Californian college courses. This includes the entire University of California and all of the Cal State schools.

The United States has lagged behind wealthy countries in everything from education policy, to equitable healthcare, to its Covid-19 response. Lawyers and judges who believe in progress are the keys to reversing these inequities.

From desegregation in Brown v. Board, to reproductive rights in Roe v. Wade, to affirmative action in Regents of the University of California v. Bakke, to marriage equality in Obergefell v. Hodges, lawyers and judges have corrected life-altering injustices in this country.

It is an injustice that Californians pay billions for UCLA to generate knowledge only for UCLA to say most of us are not worthy of learning from that knowledge. This perpetuates centuries of oppression and inequity and does nothing to make UCLA students or professors better off.

Conservative activists have shamelessly tried to install judges hostile to progress at every level of the federal judiciary. If Trump and the Senate install a third Supreme Court justice to replace Justice Ginsburg, a full one-third of the Supreme Court will have been appointed by Trump. Trump is also shamelessly reshaping lower federal courts, and a massive percentage of all lifetime federal judges were appointed by Trump.

That is why we brought this landmark case as a state Constitutional case in state court. Advocates must remember that many issues, such as a state’s handling of its mail-in ballots, should often be litigated in state courts where possible.

The Democrats have many options at their disposal to retake the federal courts. A simple majority of Congress combined with the next President can add as many judgeship roles as they like. The Supreme Court currently has 9 justices, but it is no less important than Congress which has 535 representatives and senators.

However, lawyers must be impatient in our fights for progress. We cannot wait years or even decades for the makeup of the courts to shift back. How many people will go uneducated, uninsured, and oppressed if we wait? How long will organizations like UCLA be allowed to defend 3% Black enrollment by saying more inclusionary policies will “diminish” student value and “effectively repel” professors?

On September 16, 2020, the Court in our case ordered UCLA to stand trial. At this trial, UCLA will defend its anti-inclusion policies.

We hope our UCLA free college case will serve as a model on how to enact massively progressive change by starting with state courts that are uncompromised by Trump’s assault on the justice system.

We also hope the Court tells UCLA that letting underprivileged people learn is not harmful or dangerous to society. In fact, it’s the law.

Members of the media are encouraged to reach out to us for exclusive quotes and comments by emailing [email protected]