Critics of affirmative action, with federal backing, aren’t waiting for the Supreme Court
Dozens of private and public colleges around the nation may soon become the targets of federal civil-rights investigations over programs that exclude students who do not belong to certain minority groups.
Three prominent advocacy organizations are working in tandem to find and challenge any college program that serves only members of specified racial and ethnic minorities. In those cases where the colleges refuse to open up the programs to the excluded groups -- in most cases, white or Asian-American students -- complaints are being filed with the Education Department’s Office for Civil Rights.
Unlike the admissions policies that are the focus of two cases before the U.S. Supreme Court, the programs being attacked tend to be smaller and more focused. Such programs include summer sessions for minority students, as well as minority scholarships, fellowships, and internships. In contrast with the admissions policies, which only give some consideration to race and ethnicity in weighing applicants, these programs have specific, race-based limits on who can participate.
The Office for Civil Rights has already prodded one college, the Massachusetts Institute of Technology, into changing the admissions polices for two summer programs, and signaled last week that other race-exclusive programs will have difficulty passing its legal muster.
“Generally, programs that use race or national origin as sole eligibility criteria are extremely difficult to defend” under the legal standards being applied by the Office for Civil Rights, an Education Department spokesman said in a prepared statement.
Driving the effort are the American Civil Rights Institute, based in Sacramento, Calif., and the Center for Equal Opportunity, based in Sterling, Va. In recent weeks, the groups have jointly sent letters to several colleges that accuse them of violating federal civil-rights laws by operating certain race-exclusive programs. All of the letters asked the institutions to open the programs in question to all students, regardless of race or ethnicity, and gave a deadline to take steps to comply. “If we do not receive a satisfactory response by March 7, we will file a formal complaint” with the Office for Civil Rights, one typical letter warns.
The National Association of Scholars is aiding the effort by asking its members to report any race-exclusive programs at their colleges or others to the American Civil Rights Institute. The scholars’ group has about 4,500 members on a total of about 1,000 college campuses, as well as chapters in 46 states, and has been providing the civil-rights institute with a steady stream of tips about colleges with race-exclusive programs.
“These institutions should have been called on the carpet years ago,” says Edward J. Blum, director of legal affairs for the American Civil Rights Institute.
“We want them to open these programs up to all students based on their merit and need, and not their race and ethnicity,” Mr. Blum says. His institute was established by Ward Connerly, the University of California regent who led a successful ballot campaign to end the use of racial and ethnic preferences by public institutions in that state and in Washington state.
Carnegie Mellon Defiant
Mr. Blum and Roger B. Clegg, general counsel for the Center for Equal Opportunity, argue that most race-exclusive programs clearly are illegal. They add that the law is much more settled in this area than it is in regard to college admissions policies that give only some consideration to race and ethnicity, and back their claim by citing a long list of past cases, in Texas and elsewhere, where colleges have dropped race-exclusive programs in the face of legal challenges.
But Martin Michaelson, a Washington-based lawyer who advises many colleges and universities, says it is difficult and unwise to make generalizations about the legality of race-exclusive programs. “There is considerable variation among them,” he says. “One wants to look at their particulars.”
Mr. Blum and Mr. Clegg would not name all of the colleges to which they have sent letters. But they include Carnegie Mellon, Cornell, Indiana, Iowa State, and Saint Louis Universities, and the University of Missouri at Columbia, all of which were given until the end of this week to respond. Many of the programs in question are in the fields of science, medicine, and engineering.
Several of those colleges declined to comment, saying that their lawyers were still reviewing the letters. But Mary Jo Dively, Carnegie Mellon’s general counsel, says, “we believe that what we are doing is legal,” and the institution is likely to continue offering an academic-preparation camp for minority high-school students until the Office for Civil Rights or a court directs it to do otherwise.
“I certainly am not going to take the word of some outside group that presumes to tell Carnegie Mellon what to do,” Ms. Dively says.
“Ultimately,” she adds, “this may be a situation where a court case has to tell everybody what the law is.”
Jane M. Jankowski, a spokeswoman for the Indiana University system, says that lawyers there are consulting with officials of the National Institutes of Health and the National Cancer Institute, which provide funds for the program in question, a summer research fellowship for minority students at the university’s Cancer Center.
Saint Louis University issued a statement that said adminstrators there are confident that its scholarship program for black students complies with the law. But the February 13 edition of the St. Louis Post-Dispatch quoted Harold Deuser, the university’s director of financial aid, as saying that the university has been aware for 10 years that the scholarships probably could not pass legal muster, but kept them anyway because they are consistent with the university’s “Catholic Jesuit mission and with the Jesuit tenet of social justice.” The Chronicle could not reach Mr. Deuser for comment.
Only the Beginning
Mr. Blum says that many other colleges are likely to receive letters because he now believes “there could be as many as 50 to 70 public institutions, and perhaps as many as 25 private institutions, that have these racially exclusive programs.”
But officials at public colleges and higher-education associations offered substantially larger estimates and noted that many are supported with federal grants from the National Institutes of Health and other agencies. Indeed, it is hard to find a selective university that does not have at least one race-exclusive program listed on its Web site. Among the institutions with online descriptions of such programs are Columbia, Northwestern, Stanford, and Tufts Universities, and the Universities of Chicago, Michigan, North Carolina at Chapel Hill, and Virginia.
Bradford P. Wilson, the executive director of the National Association of Scholars, says he decided last month to get his group involved in the effort to identify colleges with race-exclusive programs based on its formal stand against the use of race preferences by colleges -- a position shared by few, if any, other faculty organizations.
“If we didn’t act, no one would. At least, no association would be able to,” Mr. Wilson says.
“We thought this was something that was all for the good,” Mr. Wilson adds. He calls college programs with race-conscious admissions policies “distasteful and illegal,” and says, “for everyone who benefits on the basis of race, someone else is disadvantaged on the basis of race.”
Ms. Dively of Carnegie Mellon argues, however, that many of the programs under attack there and elsewhere exist for the sole purpose of serving minority students. She notes that the groups involved in the campaign against race-exclusive programs also are leading opponents of race-conscious college admissions. She expresses frustration that Carnegie Mellon is being challenged for operating a summer camp that aims to increase the number of minority high-school graduates applying to selective colleges, and as a result, alleviate some of the need for race-conscious admissions policies among colleges seeking to bolster their minority enrollments.
“It strikes me as quite disingenuous -- given what I have read from these same critics of college admissions -- for them to be attacking the very solutions to the problems they describe,” Ms. Dively says.
First Forays
Mr. Clegg of the Center for Equal Opportunity says that one of his goals in pointing out and challenging race-exclusive college policies is to demonstrate that the Supreme Court, which is currently weighing the constitutionality of race-conscious admissions policies in two cases involving the University of Michigan at Ann Arbor, cannot trust colleges to narrowly tailor their policies if it lets them take race and ethnicity into account in admissions.
“It shows how important it is for the Supreme Court, in the Michigan cases, to hand down a decision that provides clarity and some bright lines,” Mr. Clegg says.
If the Supreme Court rules in favor of those challenging Michigan’s admissions policies, the Center for Equal Opportunity and the American Civil Rights Institute may seek out and challenge race-conscious admissions policies in much the same way that they are currently going after race-conscious programs, Mr. Clegg says.
In their letters to colleges, those groups argue that the race-exclusive programs in question violate Title VI of the Civil Rights Act of 1964, which forbids any organization that receives federal money from discriminating “on the basis of race, color, or national origin.”
The only complaint that the two groups have forwarded to the Office for Civil Rights is the one filed last year against two race-exclusive summer programs at MIT. Although that complaint is pending, MIT officials decided to drop the race-exclusive criteria in January, after concluding that the programs would not hold up in court. “We are not aware of any racially exclusive programs that have been successfully legally defended,” MIT’s dean of undergraduate education, Robert P. Redwine, said in an interview last month.
Princeton University decided to either revamp or scrap a summer program for minority students after learning of the federal investigation of MIT.
The Education Department’s Office for Civil Rights declined to comment on the MIT case, or how it would treat other types of race-exclusive programs that it may be asked to review.
The statement issued by the Education Department last week said that colleges’ consideration of race or ethnicity in determining who benefits from a program must “be justified by a compelling interest, for example, the obligation to remedy the effects of racial discrimination,” and also “must be narrowly tailored to achieve that interest.”
Mr. Clegg said his organization was “quite satisfied” with the Office for Civil Rights’ response to the MIT complaint. He called President Bush’s appointments to key Education Department positions dealing with civil rights “absolutely first-rate.”
http://chronicle.com Section: Government & Politics Volume 49, Issue 26, Page A22
