Disappearing without a case - the constitutionality of race-conscious scholarships in higher education.

• Author: Elson, Alexander S.

1. INTRODUCTION

   Race-conscious scholarships in higher education are disappearing for three primary reasons. First, a small handful of independent legal nonprofits--led by the Center for Equal Opportunity (CEO) and the American Civil Rights Institute (ACRI)--have applied extensive pressure on colleges and universities to abandon race-conscious scholarships. (1) Second, the United States Department of Education's (DOE) Office of Civil Rights (OCR), (2) became, under the Bush administration, increasingly skeptical of race-conscious classifications. (3) As OCR has the authority to deny federal funds to institutions of higher education that it finds to be in violation of Title VI of the Civil Right Act of 1964 (Title VI), (4) there is a strong incentive for colleges and universities under OCR investigation to avoid litigation at all costs. This combination of government and private pressure has caused colleges and universities to abandon race-conscious scholarships in large numbers. Added to this pressure is a third factor: the growing impact of state constitutional bans on affirmative action. As of 2009, four states--California, Washington, Michigan, and Nebraska--have voted to ban affirmative action in state programming. (5)

   While the story of race-conscious scholarships has received attention in the higher education and civil rights communities, (6) it has gone largely unnoticed by the general public. This is due in large part to the informal, behind-the-scenes manner in which such scholarships have been challenged. Nearly all of the evidence documenting the demise of race-conscious scholarships exists in complaints and letters sent between the legal organizations challenging race conscious scholarships (such as CEO and ACRI), the colleges and universities that implement the scholarships, and OCR, the institution responsible for enforcing Title VI. (7) As the courts have not addressed the constitutionality of race-conscious scholarships in the years since Grutter v. Bollinger, (8) colleges and universities have become extremely vulnerable to these external pressures calling for the scholarships' elimination.

   The purposes of this Note are twofold. First, it tells the story of race-conscious scholarships. Part II begins with a discussion of the historical and contemporary justifications for race-conscious scholarships, and it concludes with a detailed description of the behind-the-scenes letter writing campaign that has led to their demise.

   Second, this Note argues that race-conscious scholarships are constitutional. Part III sets forth the legal framework. In its 2003 Grutter decision, the Supreme Court held that race-conscious university admissions policies designed to promote student body diversity (9) can withstand strict scrutiny under both the Equal Protection Clause of the Fourteenth Amendment and Title VI. (10)

   While Grutter resolved nearly twenty-five years of doubt with respect to the constitutionality of race-conscious admissions programs, (11) it left programs outside of the admissions context, such as race-conscious scholarships, outreach and recruitment, and support and retention programs, in a constitutional haze. (12) Part III analogizes Grutter in the context of race-conscious scholarships and concludes by describing the importance of that context in Equal Protection analysis.

   With this background established, Part IV analyzes the constitutionality of two kinds of race-conscious scholarships: (1) "race-as-a-plus-factor" scholarships, where race is one of many factors considered in the allocation of benefits; and (2) race-exclusive scholarships, where eligibility is restricted on the basis of race. (13) Concluding that the vast majority of both types are constitutional, this Part calls on colleges and universities that value racial diversity to stand their legal ground and challenge the assertion that their scholarships are unlawful.

2. THE RISE AND FALL OF RACE-CONSCIOUS SCHOLARSHIPS

   1. Racial Inequality in Higher Education: The Purpose Behind Race-Conscious Scholarships

      Race-conscious scholarships were born out of a desire to increase African Americans' access to American colleges and universities and thereby advance the goals of racial justice and equality. (14) For hundreds of years, state and local governments actively resisted the education of African Americans, and they did so "regardless of whether that education was provided by whites or by African Americans themselves." (15) Prior to the Civil War, for example, "almost all southern states forbade teaching slaves to read and write and several states extended the prohibition to free African-Americans as well." (16) The resistance to the education of African Americans that continued well after the Civil War and, indeed, well after the Supreme Court declared segregation illegal in 1954, is a familiar story.

      Race-conscious scholarships were originally designed as a response to this long history of racial oppression and unequal access to higher education, first appearing with the Civil Rights Movement and the rise of affirmative action. (17) In 1965, President Lyndon B. Johnson famously explained the rationale behind affirmative action; evoking the imagery of slavery, he explained: "You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race and then say 'you are free to compete with all the others,' and still justly believe that you have been completely fair." (18)

      Following this logic, and buttressed by the enactment of the 1964 Civil Rights Act and 1965 Voting Rights Act, colleges and universities began considering race in admissions decisions in order to increase African American enrollment. Schools quickly realized, however, that "[w]ithout adequate financial aid, minority students, though admitted under the revised admission programs, were unable to matriculate." (19) Consequently, educational institutions began "restructuring financial aid policies to be more responsive to the needs of African-American students ... [by] designat[ing] certain funds which only minority students [would be] eligible to receive." (20)

      Today, there remains a vast racial disparity in access to higher education in America, (21) and numerous studies suggest that the disparity is growing. (22) At the most general level, there are three primary features to this inequality. First, in comparison with whites, "African-American students are ... far less likely to have access to college information and resources within their families or communities." (23) Second, once in college, the attrition rate for African Americans is significantly higher than for their white peers. (24) Third, because students of color are "far more likely to come from low-income families than their white peers," (25) high tuition costs provide a disproportionate impediment to their access to higher education. (26) Thus, "[e]ven for African-American students who are academically prepared, college costs present a significant obstacle to enrolling in and graduating from college." (27)

      Race-conscious scholarships seek to alleviate the disproportionate financial barrier to college access. (28) Financial aid is "often the key to encouraging college attendance among low-income students or those who are first in their families to consider college." (29) Indeed, as one court recognized, "[o]ne of the most important determinants for the majority of student enrollment decisions is the receipt of financial aid." (30) Additionally, "the amount of aid that institutions offer often determines where highly recruited minority students enroll." (31) Moreover, race-based financial aid often provides "continued financial support that could mean the difference, for some minority students, between continuing their studies or leaving school." (32)

      While race-conscious financial aid will not, on its own, eliminate the inequalities described above, it does have a positive impact. This point was not lost on colleges and universities: by the early 1990s (prior to their rapid demise), "[e]ighty-nine percent of independent colleges and universities, and eighty-three percent of state colleges and universities" offered some form of race-based scholarship program. (33)

   2. The Fall of Race-Conscious Scholarships

      Race-conscious scholarships have been the source of intense controversy throughout their history. (34) Over the course of the last ten years, this controversy has reached a climax. Affirmative action opponents, led by the ACRI and CEO, have initiated a coordinated campaign to eliminate the use of race in all university programs. (35) Roger Clegg, president of CEO and a lead architect of the campaign, claims to have contacted over one hundred colleges and universities in order to request that they terminate race-conscious programs. (36) As a result of these communications, Clegg claims that dozens of schools have closed their racially exclusive programs. (37) These efforts have transformed the landscape of race-conscious programming at American universities. (38) Indeed, as of 2004, CEO claimed that of the one hundred colleges and universities it had contacted, roughly seventy of them were persuaded either to end their affirmative action programs or to open access to the programs to all races. (39)

      This Part tells the story of the demise of race-conscious scholarships. Part II.B.1 provides examples of scholarship programs that have been either shut down or drastically re-organized. Part II.B.2 examines the actual communications between CEO, OCR, and colleges and universities, and reveals the manner in which so many schools have caved to CEO and OCR pressure. Finally, Part II.B.3 addresses the separate but important impact of statewide affirmative action bans.

      1. Examples of Scholarships That Have Been Shut Down

         Washington University's John B. Ervin Scholars Program ("Ervin Program") is representative of the experiences at these institutions...