Programs for HBCU alumni can violate federal law
by Adam Kissel and Dan Morenoff · The Washington TimesOPINION:
Should a college limit a scholarship to students of a particular race? Of course not. In fact, it is against the law. Still, that does not always stop college officials. Just ask the Justice Department, which recently opened an investigation into William & Mary Law School.
It is illegal to give students an advantage because of their race. It also violates civil rights when a college uses a proxy for race to achieve the same goal. The ongoing federal investigation of William & Mary scholarships shows that the Justice Department will not tolerate such sneaky workarounds.
In this case, William & Mary Law used the alumni status of historically Black colleges and universities as a proxy for Black students in scholarship decisions. That was clever insofar as HBCU alumni status is defined by institutional history rather than current enrollment. Nothing is inherently racial in favoring those who attended an HBCU.
Indeed, students from many races and ethnicities attend HBCUs. Most students at Bluefield State University are not Black, and non-Black students attend many other HBCUs as well.
Still, as William & Mary realized and apparently sought to exploit, a high enough share of HBCU students and alumni are Black for the nonracial category of HBCU-affiliated status to overwhelmingly indicate that particular racial identity.
The Justice Department focused on William & Mary because its law school chose to fill in the logical gaps. The school specifically explains that its Lemon Project addresses the “problem of racial justice” and seeks to “rectify wrongs perpetrated against African Americans.”
That leaves no reasonable doubt about why William & Mary Law School is doing what it is doing.
The Supreme Court made clear in the 2023 admissions case Students for Fair Admissions v. Harvard that “eliminating racial discrimination means eliminating all of it.” Some observers try to weasel out of this plain statement by claiming that the decision applies only to admissions.
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Yet civil rights protections extend to college scholarships, and the 4th U.S. Circuit Court of Appeals — which governs William & Mary — had decided as long ago as 1994 in Podberesky v. Kirwan that race-exclusive scholarships were unconstitutional.
William & Mary is not the only school offering scholarships specifically for HBCU students or graduates. Whether or not they are as careless as William & Mary in documenting their reasoning, all schools choosing to offer those scholarships for the same reasons would be violating the same federal laws against racial discrimination.
Several schools created such scholarships, inviting scrutiny into their reasons for running them.
Duke University’s business school created an HBCU scholarship in 2020 “to address issues of racial inequality.” In parallel with William & Mary, the school’s dean acknowledged that Duke was offering additional scholarships to “underrepresented minority students.”
The University of Florida law school limited scholarships to HBCU graduates. Paralleling William & Mary, UF said it runs these scholarships to create a “pipeline” of “black alumni” tied to HBCUs.
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Suffolk University Law School offers full tuition to HBCU graduates through its Thaddeus Alexander Kitchener scholarship. Suffolk describes the scholarship as an effort “undertaken by Suffolk Law to expand access to law school to students from diverse and nontraditional backgrounds.”
Northeastern University School of Law also gives scholarships up to full tuition for HBCU graduates. Northeastern has described the scholarship as aimed “to promote racial justice and increase diversity across our community.”
Lest anyone miss the implication, Northeastern clarifies that a “key tenet of the President’s Action Plan is to … increase Black and brown representation across our community. The goal of this scholarship is to lower some of the barriers students from underrepresented backgrounds and under-invested communities face when seeking a comprehensive legal education.”
Civil rights laws extend to everything a university offers its students, including internships. So Harvard’s Du Bois Scholars Program, which limits participation in its summer program to HBCU students — and launched as part of Harvard’s initiative to address its “legacy of slavery” — also deserves federal scrutiny.
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Many HBCUs are deservedly proud schools with great track records. Graduate schools might want to prioritize the alumni of these HBCUs for good reasons, but they cannot legally use HBCU-affiliated status to disguise their programs in order to serve openly racial ends.
In particular, they cannot claim to fight racial injustice by favoring HBCU graduates without discriminating by race. That does not pass the smell test.
The Justice Department is right to investigate institutions’ use of proxies for race. When schools say they are using HBCU affiliations as a proxy for race, the Justice Department should believe them. William & Mary Law School is just one of the most obvious examples.
More broadly, though, presidents and deans need to hear this message: Stop discrimination at your college by ceasing to discriminate.
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• Adam Kissel is a visiting fellow at The Heritage Foundation. Dan Morenoff is executive director of the American Civil Rights Project and an adjunct fellow at the Manhattan Institute.