The Supreme Court today denied review in Muñoz v. Regents of the University of California. The case is an ongoing challenge to a UC policy prohibiting the employment of undocumented students who don’t have federal work authorization.
The First District, Division Four, Court of Appeal had summarily denied the writ petition in the case, but the Supreme Court granted review and transferred the matter back to the appellate court for an opinion on the merits. (See here.)
On remand, Division Four’s published opinion held that the policy violated California’s Fair Employment and Housing Act because it “facially discriminates based on immigration status.” But that’s not the end of the story. The appellate court didn’t strike down the policy. Instead, it found insufficient the UC reason for the policy — that hiring undocumented students risked federal action claiming the UC is violating the Immigration Reform and Control Act (8 U.S.C. § 1101 et seq.) — and it directed a reconsideration of the policy “based on proper criteria.”
The opinion said, “None of the authority cited by the University establishes . . . that an employer may engage in an ‘unlawful employment practice’—i.e., discriminate based on immigration status without a showing that such discrimination is required by federal law—based solely on concerns, however reasonable, that there may be significant consequences to adopting a contrary practice.” It concluded that “[t]he policy is unlawful under FEHA unless federal law requires it, and neither the University nor anyone else has argued to us that it does.” The court also refused to “speculate about why [the University] has so far decided against an effort to escape its predicament by seeking a declaratory judgment against the government.”
