On Tuesday, April 1, the University of Michigan will defend its use of racial and ethnic admission preferences before the Supreme Court. Central to UM’s defense is its claim that race is “just one factor” in deciding who gets in. It is important to note, then, that while this may be true for its general admissions decisions, UM is meanwhile running a dozen other programs for which race and ethnicity is either an absolute requirement or an absolute disqualification, depending on whether you are the “right” or “wrong” color. These programs include opportunities both for academic instruction and for financial aid and scholarships.
Consequently, our organizations — the Center for Equal Opportunity and the American Civil Rights Institute — sent a joint letter to UM on March 21 and asked it to open these programs up to all students, regardless of skin color or national origin.
If it does so, UM won’t be the first top university in recent months to conclude that it has been violating the law. Earlier this year, Princeton University and Massachusetts Institute of Technology announced that they were ending the racial exclusivity of certain summer programs at their respective schools. Other schools have followed suit. What’s remarkable is that it took them this long.
We contacted Princeton after we received a fax (from the brother of a disgruntled alumnus) regarding a summer program for which eligibility has been limited to “students of color.” In our letter, we pointed out that this violates Title VI of the Civil Rights Act of 1964, which bans “discrimination” “on the ground of race, color, or national origin” by recipients of federal funds (and this includes most universities).
We suggested, therefore, that Princeton open the program “to all students, regardless of skin color or ancestry.” We also said that, if we didn’t receive a satisfactory response, we would file a formal complaint with the Office for Civil Rights at the U.S. Department of Education, which administers Title VI for the federal government with respect to federally funded schools.
Princeton looked at its program and reached the conclusion that we were right. Indeed, it turns out that five years ago the Ford Foundation, which had initially funded the program, had also reached this conclusion and had thus stopped its funding.
MIT’s story is a bit more complicated. We first wrote to its counsel on February 20, 2001, after receiving a complaint from a parent whose child was ineligible for one of its summer programs, which excluded whites and Asians. MIT said it was confident that its program was consistent with federal law, and so we filed a complaint with OCR, which launched an investigation.
That investigation is still ongoing, but in the course of it MIT has concluded that, indeed, a racially exclusive program is indefensible. “Our best advice was that for racially exclusive programs, our chances of winning were essentially zero,” said Robert P. Redwine, MIT’s dean of undergraduate education. The university’s counsel added that its decision was based on “an analysis of what our peers were doing around the country, and what conclusion other institutions have reached ….” So MIT decided to end the racial exclusivity of its summer programs, too.
As a result of the publicity over Princeton and MIT, we received information about racially exclusive programs at other schools. In addition, the National Association of Scholars alerted its 4500 members across the country and asked them to bring to our attention other discriminatory programs. They have done so, and consequently we have sent out another two or three dozen letters, most recently to UM.
Our message is always the same: Continue the programs, by all means, but make them available to all, without regard to skin color or where someone’s ancestors came from. Limiting participation to students from disadvantaged backgrounds is fine, but it should not be assumed that all and only students of certain skin colors suffer from disadvantage. If you don’t change the programs, we tell the schools, then we’ll contact the federal government.
In only one case so far have we been obliged to file a complaint with the Office for Civil Rights. The other schools we’ve heard back from have either agreed outright to change the programs or are in the course of reevaluating them. The one exception, Saint Louis University, told us that it is confident its programs will pass OCR muster. We shall see. Last month OCR issued a statement warning that racially exclusive programs “are extremely difficult to defend.” And the school’s chances will not be helped by the fact that its dean of financial aid was recently quoted in the St. Louis Post-Dispatch as saying that the school has known for the past 10 years that its programs are illegal.
It is gratifying that schools have generally been willing to change their programs once challenged, but it is disturbing that such clearly illegal programs exist in the first place. The fact that universities have deliberately decided to break the law until caught underscores how important it is that the Supreme Court issue a strong and clear ruling in the University of Michigan cases. Sheldon Steinbach, chief counsel of the American Council on Education, said in an unguarded moment earlier this month that perhaps the reason the universities are so obliging to change their racially exclusive programs is that the want to “appear as clean as possible” for the Supreme Court. Sorry, but it’s too late.
At this point, many universities seem incapable of doing anything in a race-neutral way. It would not surprise us to learn that such schools allocate student and faculty parking spaces in a way designed to “celebrate diversity” in the college garage.
It will not do for the Court to allow such discrimination so long as it is “narrowly tailored,” and then leave it to the discretion and conscience of individual schools to do that tailoring. The universities have shown that they can’t be trusted. The Court cannot leave the door to discrimination ajar, or college officials will continue to try to drive a truck through it.
— Edward Blum is director of legal affairs for the American Civil Rights Institute. Roger Clegg is general counsel of the Center for Equal Opportunity.