Black-Only Scholarship Ends After Opponents Use Anti-KKK Law – Inside Higher Ed
Citing the KKK Act of 1871, the Pacific Legal Foundation and another anti–affirmative action group sued to end a race-restricted scholarship at UC San Diego. Now, the Black Alumni Scholarship Fund has been renamed.
By Ryan Quinn
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The Black Alumni Scholarship Fund helped African Americans attend UC San Diego.
The Pacific Legal Foundation is known for filing lawsuits to end affirmative action in public education. In July, the conservative nonprofit law firm took its fight to the University of California, San Diego, targeting a scholarship for Black students.
While the suit’s aim wasn’t unique, the litigation used a strategy that the Pacific Legal Foundation says it hopes to employ in future cases: It cited the Ku Klux Klan Act of 1871, which Congress passed to protect African Americans, to try to stop a financial aid program that helped only Black people. And like the 2023 Supreme Court case that ended affirmative action in college admissions nationwide, the lawsuit alleged that another minority group, Asians, was being harmed by a policy that specifically benefited Black people.
It’s unclear whether this use of the KKK Act, or any of the other legal arguments the suit cited, would have persuaded a judge or jury. The plaintiffs dismissed their suit last week, before it ever reached a hearing, after apparently winning the concessions they wanted.
The San Diego Foundation, a nonprofit philanthropy that administers the Black Alumni Scholarship Fund (BASF) for UCSD students, announced Oct. 15 that the fund was being renamed the Goins Alumni Scholarship Fund (GASF), after scholarship founder Lennon Goins. The website Basf-sandiego.com has been replaced with Gasf-sandiego.com—which no longer says the scholarship application will be sent to all students who identify “on the UC application as Black or African American.”
A San Diego Foundation spokesperson said in an email that “we do not comment on litigation matters, active or closed.” UC San Diego didn’t provide Inside Higher Ed an interview or answer written questions; instead, it sent an email saying it is “pleased that this lawsuit was amicably resolved.” The email also said “we are committed to complying with all federal and state anti-discrimination laws.”
For its part, the Pacific Legal Foundation is declaring victory and touting its use of the KKK Act. “I think that the lawsuit fulfilled the promise of what the law was intended to do,” said Jack Brown, an attorney in the firm’s equality and opportunity practice group.
Brown said that intent was to prevent private parties from conspiring with the government to deprive people of equal legal protection. In this case, he said, that meant stopping the private San Diego Foundation from working with a public university to prevent non-Black students from receiving a scholarship.
“I think the law was intended to kind of fulfill the promise of the Declaration of Independence, that all Americans are created equal,” Brown said. “That’s true whether you’re white, whether you’re Black, whether you’re Asian or what have you.”
Lawyers have used the KKK Act in modern times for purposes far beyond fighting its namesake white vigilante group. The NAACP accused Trump of violating it in his efforts to overturn his loss in the 2020 presidential election. But the act was originally used to fight the Klan’s campaign of violence and intimidation against African Americans.
A few years after the Civil War ended in 1865, the required number of states ratified the 14th Amendment, which gave “all persons born or naturalized” in the U.S. citizenship, including freed slaves. It said states can’t “deprive any person of life, liberty, or property, without due process of law,” or deny anyone within their jurisdictions “the equal protection of the laws.”
In 1871, three years after the 14th Amendment was ratified, the Klan launched “one of the worst campaigns of domestic terrorism in American history,” including murder and rape, in South Carolina, according to the Federal Judicial Center. Klansmen targeted Black people and white Republicans in an effort to oust the Reconstruction government there, the center said in its history of the laws.
President Ulysses S. Grant asked Congress for help in stopping the violence. It passed, among other laws, the KKK Act of 1871, subtitled “an Act to enforce the Provisions of the Fourteenth Amendment.” The legislation made it “a federal crime to deprive a person of the equal protection of the laws,” the Judicial Center wrote.
A National Park Service history further said the act “empowered President Grant to suspend Habeas Corpus and use the military to enforce these acts”—which he did, declaring martial law in nine South Carolina counties and using the military to help arrest suspected Klansmen. The Judicial Center wrote that the act played a role in court cases against the perpetrators.
A century and a half later, the Pacific Legal Foundation sought to use the KKK Act for something quite different. Brown said his firm found out about UCSD’s Black Alumni Scholarship Fund through its own research. According to an earlier version of the fund’s website captured by the Internet Archive’s Wayback Machine, Goins originally founded the scholarship fund at UC San Diego in 1983, but it “was moved off campus into an endowment at The San Diego Foundation” in 1998, “following the passage of CA Proposition 209,” a voter referendum that amended the state Constitution to ban affirmative action in public employment, contracting and education.
After discovering the Black-only scholarship, Brown said his firm reached out to an organization that says it was founded by people who defended Proposition 209 against repeal. Brown said his firm wanted to see whether it knew of any students who had been excluded from the scholarship based on race.
That organization, the Californians for Equal Rights Foundation, and one of its members, a white transfer student, ended up becoming a plaintiff in the case. CFER also said in the suit that it had multiple “Asian-American high school members who plan to apply to UCSD” and could be excluded.
Pointing to the Black Alumni Scholarship Fund’s own online history of moving to a private foundation after Proposition 209 passed, the Pacific Legal Foundation and the plaintiffs alleged that UCSD was circumventing the state and federal Constitutions. They alleged a conspiracy between the public university and the fund “to award scholarships based on race through sleight of hand,” which they claimed violated the KKK Act’s ban on people conspiring to deprive “any person or class of persons of the equal protection of the laws, or of equal privileges.”
Brown said it amounted to the government outsourcing discrimination to a private party. Among other things, the suit alleged that UCSD was giving the fund the names of students who had checked Black or African American on their college applications.
Wenyuan Wu, CFER’s executive director, defended her organization’s use of the KKK Act for this case in part by describing it as the law’s “modern” version—not the original. But she also shared her own view of civil rights.
“I’m not a white American, I’m not a Black American, I’m an American who happens to be of Asian descent, and I firmly believe that civil rights are first and foremost individual rights,” she said.
“How can we just look at crude statistics and say that all Black Americans or all Americans of a certain race, or certain color, or certain ethnicity are categorically underprivileged, marginalized or historically disadvantaged or not?” Wu said. The U.S. can’t fight historical discrimination with ongoing discrimination, she added.
Brown, who is white, said the Pacific Legal Fund is “a big believer in a universalist interpretation of the 14th Amendment” and plans to use the act in similar cases in the future.
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