The dispute between the Justice Department and Southern Illinois University over three minority graduate fellowships taps into an issue that has nagged educators for years: How can universities attract minority students without breaking the law?
It’s a tricky question, experts say, because there is no clear federal policy or court decision about race-based scholarships, fellowships and outreach programs.
In Missouri and Illinois, some universities have done away with such programs in recent years and are looking for alternate ways to make their classes diverse.
The movement to open up such programs intensified after two U.S. Supreme Court cases in 2003 regarding affirmative action. In those cases, brought against the University of Michigan, the justices ruled that race can be one factor, but not the only factor, that universities use in admissions.
“The Michigan cases have had a chilling effect on a lot of these universities,” said John Baworowsky, a vice president at St. Louis University, which eliminated a scholarship for black students two years ago. “We’re all trying to do a better job of appealing to students of diverse backgrounds while living within the confine of the law.”
Other schools, however, have not changed course. Southern Illinois University Edwardsville, for example, has no plans to eliminate a scholarship for minorities.
“We are very comfortable with our practices here at SIUE,” said Sharon Berry, director of the university’s financial aid office.
Part of the problem is a lack of consensus on what the Michigan cases mean.
Sheldon Steinbach, general counsel for the American Council on Education, said the decisions left little ambiguity about the legality of certain scholarships and programs.
“If you can’t have a race-specific admissions program, it stands to logic that you can’t have a race-specific fellowship program or a race-specific summer outreach program,” he said.
But Art Coleman, a former deputy assistant secretary in the U.S. Education Department under President Bill Clinton, said there is still a lot of confusion about what is allowed.
The Michigan cases dealt exclusively with admissions and didn’t address aid and outreach programs, said Coleman, now a Washington lawyer who leads seminars and has written policy manuals on the issue for the College Board.
After the Michigan cases, the Center for Equal Opportunity, a Virginia-based group that opposes racial preferences, ramped up its efforts to make schools open up their minority programs to people of all races. The group has sent letters to hundreds of schools where it found or received complaints about racially exclusive programs, said Roger Clegg, the group’s general counsel.
The center complained to Washington University and SLU about their scholarships—and later went to the federal government, prompting both schools to make changes.
Last year, the center filed a complaint with the Justice Department about three SIU minority fellowships at the Carbondale campus that provide students with stipends and tuition assistance.
In a letter to SIU in early November, the Justice Department said the university, because of the fellowship programs, “has engaged in a pattern or practice of intentional discrimination against whites, nonpreferred minorities and males” in violation of the Civil Rights Act of 1964.
For the last couple of weeks, federal and SIU officials have met behind closed doors to work out a compromise. If the Justice Department sues SIU, as it has threatened, experts say it would be the first time in the last decade that a race-based scholarship or fellowship has been challenged in court.
As the situation unfolds at SIU, administrators at other schools continue to stand by their minority scholarships and programs.