Over a decade ago the U.S. Circuit Court of Appeals for the Fourth Circuit ruled that racially exclusive scholarships are unconstitutional, a decision that the Supreme Court let stand (Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994), cert. denied, 115 S. Ct. 2001 (1995)). (The text of opinion can be found here. In a twist that some will regard as ironic, Daniel Podberesky, the plaintiff who successfully challenged a merit scholarship program limited to blacks, is Hispanic.)
Virginia is in the fourth circuit, and yet the University of Virginia still advertises and presumably awards a slew of racially exclusive scholarships.
The Walter N. Ridley Scholarship at the University of Virginia provides scholarship for black students admitted to U.Va. Named for the University’s first black graduate, The Ridley Fund is the product of the vision and generosity of the University’s Black Alumni and friends. Since its creation in 1987, hundreds of alumni, parents, and friends have joined forces to award over 300 scholarships.
The Walter N. Ridley Scholarship is only one of several racially exclusive scholarships provided by the Walter N. Ridley Scholarship Fund. Others include:
The Jerome B. Holland Scholarship “was created in 1987 to help the University compete for the most promising African American students in the country; students who are actively sought by the nation’s most prestigious public and private institutions of higher learning.”
The Gregory Raven Batipps Memorial Scholarship and Literary Prize were [sic established “to recognize talented African American students at the University of Virginia that have contributed to the University community through scholarship and literary works.”
The Ravenell Ricky Keller III Scholarship provides “financially deserving, talented African American students with the opportunity to participate in International Exchange programs at the University of Virginia.”
The Susan B. Merchant Fund “was established in November 1996 by Susan’s father, John F. Merchant, founder of the Ridley Fund and the first black law school graduate, for the purpose of benefiting UVA students in a manner consistent with the purposes of the Ridley Fund.”
The Meikel Andrade Memorial Scholarship “is given to an exceptional African-American female entering her first year at UVA….”
The Annetta Thompson Scholarship of $500 is awarded to a deserving 4th year Ridley Scholar
In addition, there are a number of other Ridley funds whose intended recipients are not identified.
The University of Virginia has a highly regarded law school, as well as a general counsel who is not known for incompetence. Has it received advice from these or other sources that its racially exclusive scholarships are not inconsistent with the controlling 4th Circuit opinion in Podberesky?
Or is it standing in the schoolhouse door (metaphorically speaking), handing out money in a manner that has been ruled unconstitutional, hoping that no plaintiff comes forward to challenge the practice? If so, is that honorable behavior on the part of the University that still prides itself on its own Honor System?
UPDATE [6 March]
Several commenters on this post have suggested that there is nothing improper about UVa’s racially exclusive scholarships because they appear to be funded by private funds. It’s a very good point; it may be a legally winning point; but it is certainly not a slam dunk.
First, let me say that I have no objection (or at least no legal objection) to racially exclusive scholarships if they are in fact funded exclusively by private funds and have no public involvement. William Gray, the director of the United Negro College Fund, has a point (though a limited one), when he points out “that no complaints are being lodged against the many privately financed scholarships for members of various white ethnic groups, such as Italian-, Norwegian-, and Polish-Americans.”
There would and should be complaints, however, if such ethnically exclusive scholarships were supported with any public funds. And since Gray arranged for the UNCF to administer the Gates Millennium Scholars program, which will distribute $1-billion to minority students over 20 years, he presumably is well aware that privately funded racially exclusive scholarships are alive and well. Of course, as I’ve argued here a number of times (see here, citing here and here) following the ruling in the Bob Jones case I don’t believe any of those private funds, or the organizations administering them, should qualify for a tax exemption, nor should contributions to them be tax deductible.
Second (in case you’ve forgotten, all the above was “First”), it’s a bit odd for liberals to be defending private racial exclusivity, since in other arenas the private nature of alleged discrimination does not prevent them from trying to eradicate it. Here’s just one example, from People For The American Way:
While religious schools are permitted under Title VII to engage in religious discrimination in hiring when using private funds, serious constitutional issues are raised when those private schools receive public funds…. Federal taxpayers should not be required to subsidize private institutions that engage in religious discrimination in employment, however justifiable that discrimination may be for an institution when it is operated solely with private funds.
Does PFAW oppose public universities supporting privately funded discriminatory scholarships? If so, I’ve missed it.
Our case involves a public university’s use of allegedly private funds, but it is also instructive to note how liberals respond when the players are reversed. They vociferously oppose students being able to use vouchers at religious schools, arguing that the public funds in the voucher — even though given to individual students to spend wherever they want — implicates the organization that cashes the students’ checks under all the federal anti-discrimination statutes and amounts to an establishment of religion. Or take the case of tiny Grove City College in western Pennsylvania (discussed here). Grove City adamantly refused all federal funds because it wanted to be free from federal regulation of its sports programs under Title IX. No matter. Liberals claimed that it was the indirect beneficiary of federal aid because a few of its students paid their tuition with benefits derived (often through a parent’s service) from the GI Bill.
In short, where liberals want to eradicate discrimination nothing, for all practical purposes, is private. Where they want to protect it — as with the ability of public institutions to benefit from racially discriminatory scholarships and private parties to receive tax breaks for contributing to racially discriminatory activities — privacy all of a sudden becomes an important value. (Similar examples abound. As discussed here, liberals did not believe that the Boy Scouts had a First Amendment “associational freedom” right to exclude gays, but they do believe that law school faculties do have a First Amendment “associational freedom” right to exclude military recruiters without jeopardizing federal funds received by their institution.)
Finally, and most relevant to the substance of my original post, the University is so pervasively involved with the operation of these restrictive scholarships that their ostensibly private nature may be severely compromised or even obliterated.
- They are prominently mentioned throughout the University’s web sites as examples of what the University is doing to promote diversity;
- The University houses the offices that administer the scholarships, and its officers work hand in glove with them. For example, Patricia Lampkin, UVa’s Vice President for Student Affairs, points with pride to her conversations with the director of the Ridley Funds about ways the University “may collaborate in achieving his goals.”
- Indeed, the University pays over 20% of the operating budget of the alumni association that administers the restrictive scholarships.
In the final analysis, however, the question of whether the fig leaf of “private funds” is large enough to cover the University’s embarrassing entanglement with racial discrimination is not, or should not be, technical and legalistic. The real question is whether or not the University’s involvement with these restrictive scholarships passes the smell test, and that test is very simple: would the “private funds” defense work if the University co-operated (and funded) to the same degree organizations supporting white UVa students?
UPDATE II [6 March 1:55PM]
The Office of Civil Rights of the U.S. Dept. of Education has ruled against privately funded minority scholarships in a case that bears considerable resemblance to the practice at UVa.
The U.S. Department of Education has issued policy guidance setting forth the circumstances under which race-targeted financial aid is permissible under Title VI as interpreted by the federal government. See 59 Fed. Reg. 8756 (Feb. 23, 1994). This guidance has been reiterated in light of subsequent federal court decisions and has been interpreted by the Department’s Office for Civil Rights (OCR) in a number of agency findings, including a decision stating that privately funded “minority scholarships” at Northern Virginia Community College were not justified under Title VI because the College failed to demonstrate that the scholarships were needed for recruitment and retention of minority students, and because the college was involved in the creation of a foundation to administer the scholarships. [This discussion begins with a note that it had been updated as of January 2005.]