When Texas’ attorney general told the state’s public colleges in 1996 that they should no longer consider race in awarding scholarships, many higher-education leaders were outraged. They considered financial aid one of their best recruitment tools for minority students in the wake of a federal appeals court’s decision banning the use of affirmative action in admissions. Indeed, many of the officials felt that the attorney general’s interpretation was overly broad.
Seven years later, college officials across the country are facing similar questions about whether a court decision on admissions applies to financial aid as well.
In its rulings in the University of Michigan cases last week, the U.S. Supreme Court -- which upheld the use of race-conscious admissions in one case, while emphasizing the need for such policies to be as narrowly tailored as possible in the other -- did not specifically mention the use of race in financial aid. As a result, legal scholars and others say, considerable ambiguity remains. Opponents of racial preferences have vowed to bring lawsuits against institutions that begin programs to benefit only some racial or ethnic groups.
A Key to Minority Enrollments
But others argue that race-exclusive scholarships are now permissible, and most analysts agree that many colleges that limited the use of race in awarding aid because of court decisions in the 1990s will now very likely revisit those policies.
In fact, say many higher-education analysts, the effects that the Michigan rulings have on non-need-based financial aid could have a greater impact on where -- or if -- minority students attend college than will the decisions’ effects on admissions policies. Financial aid is often the key to encouraging college attendance among low-income students or those who are the first in their families to consider college. And the amount of aid that institutions offer often determines where highly recruited minority students enroll.
What’s more, there are many more race-conscious scholarships than there are institutions likely to use race as a major factor in admissions decisions, says Arthur L. Coleman, who served as deputy assistant secretary in the U.S. Department of Education’s Office for Civil Rights under President Bill Clinton. “Very few schools are likely not to have at least one student touched” by aid programs that consider race, he says. “The impact of these court decisions is more profound in the financial-aid context.”
Some of the biggest changes in aid policies are expected to take place in Texas. After the state’s attorney general issued his guidance about not using race in financial aid -- on the basis of the federal appeals-court ruling known as Hopwood -- many institutions turned to their private, nonprofit alumni associations and fund-raising foundations to offer race-exclusive scholarships. Universities also broadened their own scholarship criteria to include such factors as whether a student attended a high school with a traditionally low college-going rate.
Administrators at the University of Texas at Austin and at other colleges in the state say they are looking into their options for using race, in addition to other factors, now that last week’s decisions have trumped the Hopwood ruling.
Some legal experts believe that the Supreme Court’s opinions may also effectively overrule a 1994 decision by the U.S. Court of Appeals for the Fourth Circuit that struck down a scholarship program for black students at the University of Maryland at College Park, and that also has discouraged other institutions in states covered by that circuit from using race in aid decisions. As a result, college officials in those states -- Maryland, North Carolina, South Carolina, Virginia, and West Virginia -- may now have more leeway to offer race-based financial aid, say some analysts.
Other legal experts, as well as opponents of racial preferences, argue that the Supreme Court’s rulings in the Michigan cases have little or no bearing on the Fourth Circuit ruling, because they tackle different issues. The Fourth Circuit case centered on whether the University of Maryland could use past discrimination as a rationale for awarding race-exclusive scholarships; the Supreme Court’s Michigan decisions looked at whether diversity could be considered a compelling state interest.
In Virginia, Jerry W. Kilgore, the attorney general, issued a statement after last week’s rulings saying that his office will continue to urge the state’s colleges to avoid using race as the sole determining factor for scholarship programs and admissions. “While there may be some compelling state interest in considering race in college policies, these rulings also make clear that all students, regardless of race, gender, ethnic origin, or economic background, have an equal opportunity to compete for and receive quality higher education,” he said. “I believe these rulings indicate that schools will be looking at the totality of an applicant, instead of simply race.”
Douglas Laycock, a professor of constitutional law at the University of Texas, says he believes that the Supreme Court decisions do undermine at least some of the Fourth Circuit’s ruling, but that it is unclear how much last week’s rulings open the door for institutions within the circuit’s jurisdiction to use race in awarding financial aid.
“Somebody might have to stick their neck out and get themselves sued to get clarification,” he says.
Edward J. Blum, a senior fellow at the Center for Equal Opportunity, says that his advocacy group and others that also opposed Michigan’s admissions policies will legally challenge any financial-aid program that is race-exclusive or otherwise uses race in ways that the groups believe are not narrowly tailored enough to meet the Supreme Court’s guidance.
Those institutions “will face a very stiff headwind from those of us on the other side,” he says. “Each time, in every instance when race is a factor going forward, we will have to take a long, hard look at the program.”
Mr. Blum, though, acknowledges that the Supreme Court decisions will probably give colleges some additional freedom to use race in limited ways when offering aid. As long as race is not the predominant factor in making financial awards, he says, institutions will be able to claim more legal protections for their aid policies that consider race. “This will shift the legal landscape, there’s no denying it.”
Fashioning Policies
Edward N. Stoner II, who leads the higher-education practice group at Reed Smith, a Pittsburgh law firm, says last week’s Supreme Court decisions generally make it easier for institutions to justify using race in their aid policies. The rulings, he says, indicated that the court will tend to give institutions the benefit of the doubt when they are considering race as a factor in narrowly tailored ways and arguing that they need to do so to pursue diversity as an educational benefit important to their mission. As a result, he says, most institutions’ current aid policies involving the use of race as one factor will very likely be more protected from legal challenges.
“It looks like these rulings are giving a wide berth to educational judgment,” Mr. Stoner says. “Institutions can keep doing what they’ve been doing with more peace of mind. Less money will have to go to the lawyers, and more can go to scholarships.”
But race-exclusive scholarships may still be legally vulnerable, given the Supreme Court’s striking down of Michigan’s undergraduate admissions approach. Aid programs that are limited to certain groups could be considered like the points awarded to minority applicants by Michigan, Mr. Stoner explains, in that they set aside a specified benefit for people of certain races.
To make race-conscious aid policies defensible in court, Mr. Laycock says, colleges would be wise to make them as individualized as possible, similar to the way Michigan’s law school weighed race as one factor among many in making admissions decisions.
For instance, institutions might want to consider such factors as whether an applicant’s school or community doesn’t send many students to college. “If race is one factor among many, you are probably toward the safer side of the legal spectrum,” says Mr. Coleman, the former civil-rights official in the Clinton administration.
Other legal experts, though, argue that race-exclusive aid could be perfectly legal in many circumstances.
Michael A. Olivas, a law professor at the University of Houston, points to policy guidance on race-based scholarships that the U.S. Department of Education issued in 1994. To determine whether race is being used narrowly enough, the department urged people to consider such scholarships in the context of all financial aid available to students at the college or in the state. It is possible, Mr. Olivas and others say, that race-exclusive scholarships, in that broader context, would shut out students of other races only minimally, because the race-based assistance would represent a relatively minor portion of the entire pot of aid, and therefore would be narrowly tailored enough to withstand legal scrutiny.
“The spigot has been turned back on for financial aid,” Mr. Olivas concludes, “just as it has for admissions.”
http://chronicle.com Section: Special Report Volume 49, Issue 43, Page S6
