Colleges are facing pressure to stop considering race as a factor when awarding scholarships — adding fuel to a larger debate over what colleges can legally do to promote diversity and equity.
The latest target is Western Kentucky University, subject of a federal complaint filed over the weekend by the Equal Protection Project, an advocacy group that seeks “fair treatment of all persons without regard to race or ethnicity,” according to its website.
The complaint says that Western Kentucky violated civil-rights laws by excluding white students from two scholarships, the Athletics Minority Fellowship and the Distinguished Minority Fellows program. The Equal Protection Project also filed a complaint last month against a scholarship at Kansas State University. The group’s other targets include pre-college and undergraduate programs at the University at Buffalo, as well as a University of Nebraska at Lincoln residency program.
Activism against colleges’ identity-based scholarships and programs has grown over the past several years, but the latest wave of complaints stems from the U.S. Supreme Court’s ruling against race-conscious admissions policies in June. Some opponents of affirmative action say the admissions ruling should be interpreted to effectively outlaw all racial preferences in education.
On the other hand, the court’s majority opinion did not say whether its interpretation applied to financial aid. Nor did it mention other race-conscious programs or diversity, equity, and inclusion efforts outside of admissions, said Antonio Ingram II, an assistant counsel specializing in racial justice and diversity issues at the nonprofit Legal Defense Fund.
It’s not clear how common it is for colleges to consider race when awarding scholarships. Yale University announced this month that it would stop doing so, as part of a settlement agreement with Students for Fair Admissions, the advocacy group that won the federal admissions case against Harvard University and the University of North Carolina at Chapel Hill. But Yale officials said it had never been an institutional practice.
Walking a Tightrope
William A. Jacobson, a clinical professor of law at Cornell Law School, who founded the Equal Protection Project, has challenged many other programs this year that he believes are racially discriminatory at colleges, school systems, libraries, and other public institutions.
We don’t see any meaningful distinction between admissions to the university and admissions to particular programs and educational opportunities.
Jacobson said his team caught wind of Western Kentucky’s scholarship programs from a tip a couple of weeks ago , and they determined that the scholarships aren’t labeled as remediation for any specific discrimination on the university’s part — a key requirement for such programs to comply with civil-rights laws, he said.
As he sees it, the Supreme Court’s admissions ruling should also apply to financial aid. He’s surprised that many colleges haven’t yet changed their scholarship programs. “We don’t see any meaningful distinction between admissions to the university and admissions to particular programs and educational opportunities,” he said.
While the affirmative-action ruling is a “very narrow one,” said Ingram, of the Legal Defense Fund, he expects to see more complaints like this one.
At the same time, he said, institutions still have civil-rights obligations to fulfill.
Ingram argued that race-conscious scholarships and other programs should be viewed in a historical context — in other words, that many colleges excluded students of color until a few decades ago. Remedying historical wrongs used to be a legal justification for affirmative-action policies; it isn’t anymore.
Despite the uncertainty surrounding legal implications, some colleges, like the University of Kentucky, interpreted the admissions ruling similarly to how the Equal Protection Project did, announcing the elimination of race as a factor in student scholarship awards. The University of Missouri system and Missouri State University, at the urging of the state’s attorney general, also plan to end the consideration of race in scholarship programs.
The Equal Protection Project wants to see three outcomes from the complaint against Western Kentucky, Jacobson said: a commitment from the university to end race-conscious programs, remediation for students whom the suit says were excluded from the scholarships, and a clear statement from the U.S. Education Department that “this sort of open discrimination is unacceptable.”
