In May 2023, the University of California formed a working group to consider whether it could employ undocumented students who lacked federal work authorization. At the time, UC employed undocumented students who had Deferred Action for Childhood Arrivals (DACA) status, but refused to hire those without work authorization.
In January 2024, the UC voted to dissolve the working group without changing its policy. The minutes from that meeting reflected UC’s concern that employing undocumented students might trigger federal enforcement action under the Immigration Reform and Control Act of 1986 (IRCA). The IRCA prohibits employers from knowingly hiring individuals who are not lawfully admitted for permanent residence in the U.S. or authorized for employment under federal law. Although no court had directly ruled on whether IRCA applied to state government entities, UC cited significant enforcement risk.
Subsequently, the California Legislature passed a bill that would have prohibited public universities from denying employment to students based on a lack of federal work authorization, unless required by federal law. It would also have required public institutions to treat IRCA as inapplicable to the state. In September 2024, Governor Newsom vetoed the bill, citing potential civil and criminal liability for state employees.
In October 2024, petitioners Jeffry Umaña Muñoz and Iliana Perez filed a petition for writ of mandate, seeking an order compelling the Regents to abandon the policy. They alleged that the policy constituted an abuse of discretion and violated the Fair Employment and Housing Act (FEHA). Under FEHA and its implementing regulations, an employer may not discriminate based on immigration status unless it proves by clear and convincing evidence that federal law requires it. Muñoz and Perez argued that the policy facially discriminated against undocumented students based on immigration status. The trial court summarily denied the petition.
Muñoz and Perez filed a petition for review with the California Supreme Court, seeking to overturn the trial court’s denial. In response, UC noted uncertainty about whether IRCA applied to state employers and stated that a judicial ruling could benefit all parties. The California Supreme Court granted review and transferred the case to the court of appeal with instructions to issue an order to show cause.
The court of appeal asked UC to explain the legal basis for its policy and whether it believed federal law required the policy. UC did not argue that federal law required the policy. Instead, it contended that the policy was a discretionary measure based on litigation risk and did not constitute discrimination. UC emphasized that it hired undocumented students with federal work authorization, such as DACA recipients, and asserted that its policy was aimed at avoiding potential liability, not excluding individuals based on immigration status.
Muñoz and Perez argued that the policy discriminated against a subset of undocumented students based on a lack of work authorization, which they argued was a proxy for immigration status. They contended that litigation risk could not justify a policy that facially violated FEHA, and that UC had offered no evidence that federal law required the exclusion.
The court of appeal agreed. It found that UC’s policy facially discriminated based on immigration status and that FEHA required UC to show that such discrimination was mandated by federal law. Because UC had expressly declined to take a position on IRCA’s applicability and had not attempted to meet that standard, the court of appeal concluded that it had abused its discretion. The court of appeal rejected UC’s arguments under the bona fide occupational qualification defense and held that litigation risk alone was not a sufficient justification for a facially discriminatory policy.
The court declined to decide whether the policy violated FEHA on its face. It explained that it did not need to reach that question because Muñoz and Perez had not fully developed the argument in their initial filings. Nonetheless, the court of appeal held that UC could not justify a facially discriminatory policy based solely on litigation risk.
The court of appeal granted a writ of mandate, ordering UC to reconsider its employment policy under the proper legal standards. The court of appeal made clear that it did not require UC to adopt a particular policy, only that it could not continue relying on litigation risk alone to justify one that discriminates on its face.
Muñoz v. The Regents of the University of California (Aug. 5, 2025, No. A171410) ___Cal.App.5th___.