Allan Favish is a Los Angeles-based attorney whose focus is on General Insurance Defense and Litigation Insurance Coverage/Reinsurance & Bad Faith Litigation. A UCLA graduate, he received his J.D. at Hastings College of Law in 1981.
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Mr. Favish's Letter to the Regents
August 19, 1996
Pete Wilson
Governor of California
The Regents of the University of California
State Capitol
Sacramento, CA 95814
Dear Regent Pete Wilson:
I am the man who sued The Regents of the University of California for consumer fraud over its statement to prospective UC law and medical school applicants that UC does not discriminate on the basis of race in admissions.
The lawsuit is over. Because it is over, there is no question about the propriety of my communicating with you directly, rather than through The Regents' in-house counsel. I am writing each of the Regents this letter to explain what the suit was about and to ask that you tell prospective applicants the truth.
My request is that you take note of the fact that UC's application and informational material presently states that UC "does not discriminate on the basis of race . . . . This nondiscrimination policy covers admission . . ."
I do not need to argue the point about whether this statement is true. If it were true, there was no reason for The Regents to vote as it did last July.
Although The Regents' attorney argued that UC's present statement is mandated by law, no legal authority was offered for that assertion and my research revealed that there is no law or regulation mandating that UC make such a statement to prospective applicants (especially when the statement is false). The courts in my case never decided the issue of whether the statement is mandated.
Obviously, once The Regents' new policy takes effect, and is obeyed by UC faculty and administrators, then UC's present statement will be true. However, that situation will not occur until at least January 1, 1997, for graduate students and January 1, 1998, for undergraduate students, or possibly sooner if the CCRI passes and is allowed to take effect.
As I argued in court, if UC was truly committed to telling the truth in its application and informational materials it would replace its present statement with something like the following:
The University of California discriminates on the basis of race in admissions in order to achieve a degree of racial diversity in its student body that would not be achieved without such discrimination. It is the University of California's position that such discrimination does not violate state or federal law. The extent to which the objectively quantifiable factors of race, grades and test scores affect an applicant's chance for admission is best illustrated by the data tables presented herein. (For example, the data tables attached as exhibits to the First Amended Complaint in Favish v. Regents of UC.) The admissions decisions reflected in the tables may also reflect additional factors that are not objectively quantifiable, such as employment history, extracurricular activities, demonstrated ability to overcome disadvantaged circumstances, community service, etc., that also may affect an applicant's chance for admission.
UC's present statement about nondiscrimination on the basis of race in admissions should not be used until UC truly practices racial nondiscrimination. This was the heart of my lawsuit.
I hope that all the Regents, even those who approve of racial preferences, will disapprove of false or misleading language in UC application materials.
On June 5, 1996, the California Court of Appeal filed its published opinion that said The Regents is not subject to California Business & Professions Code § 17200, the state's primary consumer protection and anti-fraudulent advertising law.[1] The Court of Appeal never reached the issue of whether any fraudulent advertising was occurring. The Court of Appeal's legal reasoning was so flawed that the California Attorney General's office sent a letter to the appellate court requesting that it modify its opinion.[2] The court refused to modify its opinion.
I filed a Petition for Review with the California Supreme Court requesting that it hear my case and overrule the Court of Appeal's flawed opinion. On August 14, 1996, the California Supreme Court denied my Petition. In so doing, the Supreme Court did not give any reason for its refusal to hear the case. However, the Supreme Court was unwilling to let the Court of Appeal's opinion stand as precedent for future cases. Therefore, the Supreme Court depublished the Court of Appeal's opinion. This means that the opinion will not be published in the final bound volumes of the official case reports and will not be citable as precedent. However, the depublication order does not change the fact that I am bound by the flawed reasoning of the appellate opinion.
There are several reasons why the Supreme Court depublishes opinions by the Court of Appeal. One reason for depublication is that an opinion may not offer anything new that advances the law. Another reason is that an opinion may contain flawed legal reasoning. While there are other lesser reasons, it is clear to me, based on my own analysis of the law and in light of the attorney general's letter, that the Supreme Court knew the Court of Appeal's opinion was legally flawed and if allowed to stand as precedent, would corrupt future application of Bus. & Prof. Code § 17200. Although the Supreme Court did not give a reason for its depublication order in this case, no other reason makes sense.
Therefore, the legal issue of whether The Regents is accountable under Bus. & Prof. Code § 17200, is just as it was prior to my lawsuit-I believe The Regents is accountable under the statute, The Regents' attorney believes The Regents is not accountable under the statute, and there is no case law directly on point (although there is case law similar enough to argue about).
The lawsuit, with its data exhibits, both parties' appellate briefs, the attorney general's letter and court opinions in this case are available for downloading from the world wide web at the following address: "http://www.acusd.edu/~e_cook/" (do not use quotation marks).
Just as you have set an example for the nation's colleges regarding the use of race in admissions, I request that you set an equally noble example for the nation's colleges regarding the use of truth in advertising. I believe that great colleges should tell the truth, even if they are not required to do so by the law.
Sincerely,
Allan J. Favish
Attorney at Law
[1] Favish v. Regents of the University of California, 46 Cal.App.4th 49, 53 Cal.Rptr.2d 757 (1996).
[2] The attorney general did not care so much about my particular case, but rather, was very concerned about the fact that the Court of Appeal had to misstate the law in order to rule against me. The attorney general did not want that misstatement of the law to affect future cases involving Bus. & Prof. Code § 17200.
