IN 2003, the Supreme Court upheld but restricted the University of Michigan's use of race-based affirmative action. Later this month, the College Board, which is best known for administering the SATs, will issue a guide to clarify how that decision applies not only to admissions, but to race-based academic programs and scholarships as well. In the meantime, it is this law student's humble opinion that the University is doing something illegal. At the very least, the University is waiting to be sued for its affiliation with racially restrictive scholarships.
Since the end of the Civil War and the passage of the Fourteenth Amendment, it has been clear that governments and public institutions cannot discriminate on the basis of race. The University of Michigan cases reiterated that colleges, especially public ones, cannot make race a determining factor in admissions, even though they may use race as a "plus factor." While the Supreme Court did not address directly whether race could be a determining factor in awarding scholarships, other well-established cases overwhelmingly suggest the University may not restrict programs, such as its Walter N. Ridley Scholarship Fund, exclusively to students of one race.
In 1994, a Hispanic student sued the University of Maryland after he was denied a scholarship for African-Americans -- a case pitting one disadvantaged minority group against another that has parallels here at the University. The Fourth Circuit Court of Appeals in Richmond ruled very clearly that this scholarship was illegal unless it was used to remedy specific, demonstrable present effects of past discrimination. Merely showing that Maryland had discriminated in the past, or that black students were underrepresented, or that racial tensions continued to exist at the school was not enough. Whatever one thinks about the merits of this decision, the case set such a high hurdle that it effectively prohibited most publicly funded scholarships based on race.
The Ridley Scholarship, which is also restricted to African-Americans, is not publicly funded. It exists out of the generosity and good intentions of the University's African-American alumni. But despite the scholarship's admirable aims to equalize remaining racial disparities in our society today, the law is unsympathetic to good intentions and the scholarship is still likely illegal. Since 1957, the Supreme Court and lower courts have consistently held that even privately funded scholarships and academic programs are illegal if they are administered by public agencies.
Although the Ridley Scholarship is private, it is administered by Dawn Martin of the University's Alumni Association. Martin could not be reached for comment, but Paul Forch, the University's General Counsel, contends that the Alumni Association is "a separately incorporated non-governmental entity." In an e-mail, Forch also stressed the University's minimal role in "posting general information about the availability of private aid."
Be that as it may, when asked whether the University plays "no role" beyond making the information available, Forch demurred, contending that the phrase "no role" is "ambiguous." Thus, it seems that the University, as a state actor, is possibly breaking the law by involving itself with racially restrictive private scholarships to some degree that is more than minimal.
Even if the University has "no role" whatsoever in the Ridley Scholarship, the private fund is still likely illegal. Much to the dismay of some who believe out of principle (and not out of racial animus) that private citizens have the right to associate with only members of a certain race, Congress has stated otherwise. Under U.S. Code, racially restrictive contracts are illegal. To the extent that the Ridley Scholarship is a contract -- a payment to students in exchange for their matriculation and graduation from the University -- its racial exclusivity is illegal. Moreover, the IRS has denied the non-profit status of racially discriminatory private institutions like Bob Jones University. Since the Ridley Scholarship likely exists as a non-profit, it also violates the tax code.
Whatever the law may be, Prof. Kim Forde-Mazrui, director of the University's Center for the Study of Race and Law, contends that, from a moral perspective, race-based scholarships are a good thing. While that is a topic for another entire column, this column merely suggests that the University follow the law. Walter N. Ridley was the first black graduate of the University, and such a milestone surely deserves to be honored. What better way to celebrate that courageous pioneer who broke down the race barrier than to permanently dismantle the racial restrictions that persist today in all things social and academic?
Eric Wang's column appears Wednesdays in The Cavalier Daily. He can be reached at ewang@cavalierdaily.com.
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