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Wednesday, April 24, 2024

The Editorial Board meets with UC Regent to discuss decision to delay undocumented student employment

Regent Keith Ellis explains his reaction to the decision and what’s next

Below is a transcript of the meeting that has been edited for length and clarity. Here you can find an LA Times article providing background on the situation and the most recent Regents’ decision.

The California Aggie’s Editorial Board met with UC Regent Keith Ellis to discuss his reaction and involvement with the UC Board of Regents decision to defer action regarding undocumented student on-campus employment. Ellis reached out to The Aggie after the Regents’ decision was announced with a request to speak to our editorial board and share his perspective with students. We also wrote an editorial about the situation when the decision was announced, which you can read online.

Ellis: [I wanted to share] my perspective and how I felt things unfolded because [this decision on undocumented student workers] has kind of consumed my entire time on the board. And it’s taken up a lot of oxygen, I would say, and rightfully so. So I joined the board in July of 2022 and I want to say it was the September Regents meeting of 2022, [when] we were presented with the Opportunity for All campaign’s proposal to allow students with undocumented status to hold student employment positions on campus. 

My understanding of the legal theory is, not to get super technical, there’s two types of law: there’s statutory law — that’s like the Schoolhouse Rock on the bill law — and then there’s case law that courts create, based on precedent. And so their legal theory is that there’s case law that says unless Congress explicitly states that a law applies to the states, it does not. And then, of course, the University of California is semi-autonomous under the California Constitution. So, there’s case law that says Regents policy has the same force and effect as statutory law. So that’s kind of the basis of their legal theory. 

Note: Ellis explains this concept of UC semi-autonomy more later in our conversation.

And so part of my frustration was, we were presented this in September and it really didn’t get on our agenda until May. Several of us were pushing the board leadership to put it on the agenda. It finally did [make the agenda] but wasn’t quite in the form that I think many of us were hoping. Typically, when Regents create policy, it goes into effect immediately. But in this case, we delayed implementation until November at the earliest. And then no real action was taken at that point, until January when we voted to kick it down the road another year. 

And part of the issue was that there were some, shall I say, back channel communications. Essentially, the Department of Homeland Security told the Office of the President that if we move forward with implementing Regents policy for 4407, they would be forced to do an I-9 audit on the university, which would potentially jeopardize any and all federal funding. Pell Grant, any research dollars we get from the federal government, all would be in jeopardy, basically. 

In addition to that, under the Immigration Reform Act of 1986, individual hiring managers could be civilly or criminally liable for signing off on knowingly hiring employees who are undocumented. While we didn’t necessarily think the Biden administration would lock up our hiring managers for doing that, it’s still a risk to the university and to those individuals. 

Also, there’s the deportation risk for the individual students in question, which, I think they know that risk better than anybody else. So at least my position on it was that that risk to me, the individual risk, to the student in question is a personal choice. Whether they choose to do this or not, they full-well know all of what’s associated with that, so far be it for me or far be it for the Regents to dictate an individual choice risk like that. 

But there were larger risks to the University of California that I think really drove some of the discussion and decision making. 

Also for me, you know, not to say the University of California isn’t special, because it is very special in a lot of ways, but I really kind of took issue with the fact we were going this alone. Why just us, you know, why not CSU community colleges? Also, the state itself? You know, there are student employment positions throughout state government and other departments and agencies have student employment positions that students who are undocumented can’t apply for. Why are we just doing this alone? Why aren’t we taking a more [statewide] approach to it, which now, thanks to Assembly Member [David] Alvarez, there’s a bill [AB 2586] to essentially do that, for the most part. 

That was kind of my frustration in January. I proposed, essentially, if we were going to delay it by a year, we should just delete the policy. I don’t think in a year the federal landscape is going to change very much. I mean, not for the better, for sure. You know, the key choices are four more years of Biden or President Trump comes back. And I don’t think either of those yields the change we’re looking for on the federal level in terms of the immigration reform. So if that’s what we’re waiting for, then that’s not going to change by January 2025. Call me a pessimist or a realist, but if that’s what we’re waiting for, it’s not going to happen. Why bother having a policy we have no intention of implementing. 

So that’s why I motioned to just remove it because the Regents could always come back later, and put it back and actually implement it. That’s my big issue: we have a policy on the books and we have no intention of implementing [it] anytime soon.

Editorial Board: You’re talking about collaboration with other schools. Do you have any idea if they were reached out to when this process began? Or if they reached out? Was there any communication about working together on it? 

Ellis: My understanding is that some of the candidate colleges are an interesting beast because the districts hold most of the power in that regard. The 72 districts would have to be the entities that actually implement this kind of a thing at the community colleges, so the Board of Governors doesn’t have authority in the space. They may have been aware but there’s no action they could take. Maybe some of the local districts have been aware or have wanted to take action but you’re talking 72 different governing entities. So it’s a little unwieldy. 

I do believe we did reach out to CSU. And it was my recollection that the response was more like, “Yeah, we’re aware.” Not to put words in their mouth but my understanding is they weren’t really willing to join. And were just willing to sit on the sidelines because the authority that we’re invoking doesn’t apply to them either, because they don’t have the autonomy we do. So they would need action by the legislature to go down this route.

Editorial Board: Just to clarify, though, I know you don’t speak for the Regents but say the CSU were to theoretically be on board and take a similar action that the Regents originally wanted. Do you think that would change the Regents’ or your decision on the policy?

Ellis: Yeah, I mean, me personally I think so. I don’t know about the rest of the Regents. My guess? Maybe a few. But yeah, if CSU were willing to join in, it would have made me feel at least a little bit more comfortable. [Although, CSU] joining in on something like that would be more symbolic than actionable.

Editorial Board: Can you explain the difference between the CSU and the UC’s autonomy?

Ellis: The UC was established in Article Nine, Section nine of the California constitution. So we have full organizational power, minus a few carve outs for finances and the construction of buildings. Beyond that, we pretty much can do almost anything within bounds of federal law whereas CSU was created by the legislature, so they are totally dependent on any authority that they have, which comes from acts passed by the legislature. That’s why when you see a law that applies to all three segments, it says CSU and the community colleges “shall,” and “we request the Regents of the University of California” to do whatever. It’s usually an ask by the legislature to the Regents for us to do something. We’ve [almost] never said no to those asks because they do fund us. So that’s the other part where the legislature still kind of has a good amount of control over the UC through budget. [The legislature can] build or attach strings to our funding saying you can have this money if you do these other things.

Editorial Board: In terms of what would have to change to ensure viability of this policy, it seems like the most likely path right now is the bill or the legislation you talked about that’s currently being discussed going through. Is that true? Is there any other path to take looking forward?

Ellis: Yeah, I mean at this point, the House of Representatives can barely agree on who their speaker is, let alone the day of the week. So that’s why I really don’t have a lot of hope on that. But at least in terms of the implementation of this policy, if the legislature passes that bill, and the governor doesn’t veto it, then we would be in a position where we would essentially need to comply with it. To my knowledge, at least in the current form, there’s no money attached to it. So supposedly, we probably could ignore it. But traditionally, the Regents have not done that. And I don’t think we would in this case. If that bill passed, most likely, we would then take action to implement policy for 4407 under the cover of that bill because anything then that would happen would be directed to the state of California, not just to the University of California. So then, if we got sued, the attorney general would have to be involved because it’s state law that we’re complying with. 

Editorial Board: Okay, so that would sort of mitigate at least the university concerns, while the individual concerns might still be there. 

Ellis: Yeah, some of the risk would be then distributed to the state as well. It wouldn’t absolve us, at least I think; I’m not a lawyer and I intentionally decided not to go to law school. But yeah, my understanding is if this were to go forward, the risks would then be distributed. 

Editorial Board: Okay. I don’t know if you know, but what do you think the odds are that AB 2586 does pass? What would the timeline be on that?

Ellis: The last version that I read has an urgency clause. So, it would go into effect immediately. That also requires two thirds of both the Senate and the Assembly. So if they can get that, then great. That could be something that the authors negotiate, if they can’t get the two-thirds vote they need in both houses. Typically, in California, bills go into effect either Jan. 1, or July 1, just kind of depending on when they pass and things of that nature. So it could be Jan. 1, 2025, or July 1, 2025. Or if the emergency clause stays, then it would go into effect immediately. Then the Regents would have to take action. Yeah, it’s kind of up to the legislature. 

The giant question mark — I think they could get a majority vote in both houses — but I don’t know about the two thirds. That can be a difficult hurdle. But whether the governor will veto it or not? I don’t know. Because now, we’re not just talking about the risks associated with the University of California. We’re talking about any federal dollar that comes to the state of California now, which is pretty substantial. You know, we’re talking about things like Medi-Cal and federal highway dollars and disaster relief dollars. It runs the gamut there. That legislation could put the governor in a position I wouldn’t want to be in if I were the governor, I’ll put it that way.

Editorial Board: Especially depending on the November election. 

Ellis: Exactly, which is the position that the Regents were in, right?

Editorial Board: Right. Another federal question along with that: could elaborate on your knowledge about the communications between the Department of Homeland Security and the regents? When did you know the department reached out to them? And you said this was through some back channel communications. Could you explain that a little more?

Ellis: Yeah, I think there was an article in Politico that kind of sums that up a little bit, but my understanding was that the Office of the President had conversations, I want to say around September or October, somewhere in that timeframe is my understanding. Does that answer your question?

Editorial Board: I mean, if that’s all you could expand to it. That’s fine. 

Ellis: I mean, I didn’t call them up. Yeah, so that’s my understanding. The other part that I kind of left out in my initial monologue, is that we did reach out to three different law firms between May and January to get some expertise on this that we don’t have. Essentially, all three said we would lose. At the end of any legal proceeding, we’re talking about the US Supreme Court. Right? And so all three law firms basically came back [and said] given the current makeup of the court, we would lose, notwithstanding the precedent we’re talking about. 

So the other suggestion that was offered by, I am not sure if it was all three, or one or two of the three law firms [that] suggested we can do something that’s called “sue for injunctive relief.” Basically, it means we say to the court, hey, we want to do this. Can you tell us whether it’s legal or not? You know, anything in the legal system is not quick. So, a lot of the students and the advocates in the group that was pushing for this [policy] weren’t keen on us doing that, given that timetable. They decided not to pursue that route. And I think that’s part of why we reached out to Homeland Security and things like that, as another way of getting confirmation of if it’s legal. In one way or another, if we’re not going to go to the courts, we would like some other way of presenting what we’re trying to do, as you know, legal. 

Editorial Board: Sure. So to my understanding, this decision was made by a 10-6 majority.  I was wondering if you could explain to me where the dissent came from? I mean, there have been a couple of regent members who have been kind of vocal on saying they’ve never been more disappointed in this decision. I’m just wondering if you could explain their thought process and maybe if they have a different interpretation of the legal matters here.

Ellis: Well, don’t forget about the one abstention too.

Editorial Board:  Oh, sure of course. 

Ellis: I’ve said this to a number of folks — And no personal offense to [Regent Hadi Makarechian]— but really, there was only one wrong way to vote on this and that was to abstain. I respect and value the 10 Regents on the other side from me on this issue, very much. So I don’t feel that you know, just because I voted one way, and they voted the opposite way, I don’t feel that their vote was necessarily wrong. It just was really hard given the sheer amount of risk to the university. So while I decided to vote with the students, and not delay implementation, I’m guessing the Regents who voted to delay were hoping that maybe the risks can be mitigated in some way down the road, or [that] some other action might be taken that would help us get to where we want to be. 

I think the disappointment isn’t just those of us who voted to delay. I mean, I was definitely disappointed in the outcome and I think that just shows that all of the Regents are there for the same reasons. We’re there to do what’s best for the university and what’s best for California. We might disagree on what that actually is. That’s where I think a lot of that disappointment stems from is that we really want to do the right thing here, but it’s really hard to do that. Just given the circumstances.

Editorial Board: What do you mean when you say “the right thing?” Do you mean finding a way for this legal theory?

Ellis: I mean, yeah, the right thing to do is to let any student who wants to work on campus to work on campus regardless. In my opinion, the reason why we have these opportunities for students to have employment on campus is so they get tangible work experience while they’re getting their degree. So there’s a kind of a synthesis of the coursework and practical experience that’s going on. Whether you’re working in the Career Center, or in the Financial Aid Department, or in the Dining Commons, all of these experiences help you as part of your career in the long term. [This is] in addition to other experiences that might not be employment related, as well, you know, [like] going to conferences and volunteering on campus and in other capacities. All of these things build you up in ways that will better you for your entire life. 

Generally speaking, I don’t want to exclude anybody. To take it out even further, I don’t want to exclude anybody from attending the University of California, either. I know admissions decisions are coming out [soon] and students are going to have to decide to accept or decline in the next few months. If we have the space, I would admit any and every Californian who wants to attend the University of California who meets our admissions qualifications, but the demand just outpaces the supply there. 

So even to that point, the students should be able to have any job on campus that you think you’re qualified for and would enhance your skill set and your experiences going forward. I don’t want to put up any artificial barriers to anybody if I can avoid it. But as omnipotent as we Regents might be, or people might think we are, we don’t have all the power sometimes.

Editorial Board: Just to elaborate on other things, you said the only wrong way to vote on it was to abstain. Why is that and why do you feel that way?

Ellis: Chair Leib told me, when I first joined the board, you have to vote yes or no because we’re here to represent Californians and to make tough decisions. So really, those are the only choices. If you’re going to abstain, you need to give a reason why. And it needs to be rooted in some sort of conflict that you’re having. If you have some sort of business interest or conflict of interest or something, that’s what the abstention is for, to absolve [yourself of] any appearance of malfeasance or wrongdoing.

So typically, I did this before I even got to the Regents, anytime I would abstain on an issue, I would give the reason why I’m abstaining. And I’ve done it in the past on other boards. I don’t know why Regent Makarechian abstained. So that’s part of it and then the other part is that this is a really tough decision. So I kind of agree with Chair Leib on that. We have to pick one or the other. We can’t throw up our hands and walk away from the tough decisions that need to be made.

Editorial Board: Okay, great. We really appreciate your time and this has been super helpful to us in understanding what goes on behind the scenes. And I think a lot of students and readers will also appreciate understanding a little bit more about what’s happening in the Regents room when you’re trying to make these decisions. 

Ellis: Yeah, definitely. I mean that’s been the hard part with this one. Since there’s a lot of legal issues around it, most of this decision making was made in consultation with our lawyers and during closed sessions. I really struggled [with that]; I would love to really be having more of a conversation in the eye of the public, not all of us just kind of having our monologue to the public on why we were going to vote the way we were going to vote. Because, yeah, more or less, the decisions on how we were going to vote were pretty much made in closed session, and then we went into open session, and I really didn’t care for [the way the process went.] But, you know, it is what it is sometimes.

Editorial Board: Yeah, I can understand that legal stuff makes things complicated.

Ellis: Yeah, I mean when we’re going to try to buy a piece of property, we don’t take that action in public because we don’t want the other side to know our thinking on the negotiations of buying a piece of property like how much we’re willing to spend. Because they’re gonna have all the advantage. Those kinds of things make sense to me, but this one, there were parts of it where we needed to go to open session.

Editorial Board: Thank you so much again for thinking to reach out to student newspapers. We really appreciate it and we appreciate your time.

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