Over the last year, the Center for Equal Opportunity (CEO) and the American Civil Rights Institute (ACRI) have sent letters to, at last count, 26 different universities complaining about their racially exclusive programs. By “racially exclusive,” we are not including policies that simply count race as a factor in evaluating a student’s worthiness (though we don’t like that either). Rather, these are programs — typically involving internships or summer programs, on one hand, or scholarships and financial aid, on the other — for which being of the “right” race or ethnicity is an absolute requirement, and being of the “wrong” color means immediate disqualification.
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 students of certain skin colors suffer from disadvantage, and that students of other skin colors never do. If you don’t change the programs, then we’ll file a formal complaint with the Office for Civil Rights at the U.S. Department of Education. And, we would add, if the federal government doesn’t pursue the matter, there are private attorneys who will.
The response we have gotten has been remarkable. Fifteen of the schools — 58 percent — have agreed to change their programs. Just like that. Two more universities may soon join that tally, since they are in the process of reviewing the programs we challenged. Another six schools have said they want to wait for the Supreme Court to rule on the legality of racial and ethnic preferences in the University of Michigan cases (a dubious course, since it is very unlikely that the Court’s ruling, whatever it is, would provide a haven for programs that are not just racially preferential but racially exclusive). In only three instances were the schools confident enough of the legality of their programs that the matter is now pending before the Education Department’s Office for Civil Rights.
The first two schools to change their programs were the Massachusetts Institute of Technology and Princeton University. CEO and ACRI contacted Princeton on January 8 after we received a fax from the brother of a disgruntled alumnus regarding its Junior Summer Institute. Eligibility had been limited to “students of color,” and 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, which enforces 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, reached the same conclusion and had thus stopped underwriting it.
MIT’s story is a bit more complicated. We first wrote to its senior counsel on February 20, 2001, after receiving a complaint from a parent whose child was ineligible for its summer program, which excluded whites and Asians. MIT said it was confident that its program was consistent with federal law, and so last year we filed a complaint with OCR, which launched an investigation.
That investigation is still ongoing, but MIT has concluded that we were right after all, and that a racially exclusive program is indeed 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 senior 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 has 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. It was especially valuable that the National Association of Scholars alerted its 4,500 members across the country and asked them to bring to our attention other discriminatory programs, which they did.
Once we receive a complaint, we look into it, and where a school does in fact seem to be running a racially exclusive program, we write to its general counsel. We’ve done so 26 times, and 15 times so far that postage stamp has resulted in a programmatic change at the university. It has helped that, earlier this year, the Office for Civil Rights issued a warning that racially exclusive programs are “extremely difficult to defend.”
It is gratifying that so many schools have 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 pending cases challenging racial and ethnic admission preferences at the University of Michigan. (UM, by the way, is the recipient of one of our letters; it has a dozen racially exclusive programs, in addition to its race-driven general admissions program.)
It will not do for the Court to allow such discrimination so long as it is “narrowly tailored” — to use the applicable legal jargon — and then leave it to the discretion and conscience of individual schools to do that tailoring. Universities have shown that they can’t be trusted to discriminate just a little bit. If the Court leaves the door to discrimination ajar, 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, and Roger Clegg is general counsel of the Center for Equal Opportunity.