PRESS REPORTS: Feds “OK” Special Ed Programs for Black Students in College

THE CHRONICLE OF HIGHER EDUCATION, December 10, 2012

Education Dept. Clears Minority Programs of Discrimination at Colleges in 3

States

By Peter Schmidt

Washington

The Education Department’s Office for Civil Rights has scrapped long-running investigations of programs for minority students at colleges in Missouri, New York, and North Carolina, based mainly on its determinations that the programs either have ended race-based participation criteria or consider race narrowly enough to comply with federal antidiscrimination laws.

In letters released to The Chronicle last week, the civil-rights office said it was closing its investigation of several programs focused on black males at the City University of New York, and a separate program that had been geared toward minority students at the University of North Carolina at Greensboro, because the office had concluded that students of any race were eligible to participate.

The civil-rights office told the University of Missouri at Columbia it was closing an investigation of several financial-aid programs there based on its conclusion that the programs’ consideration of race was narrowly tailored to serve a compelling government interest that would not be sufficiently advanced by race-neutral eligibility criteria. The office said the university’s consideration of race in awarding financial aid “does not create an unduly severe or intrusive burden for students not eligible for such scholarships.”

Roger B. Clegg, who as president of the Center for Equal Opportunity filed the 2005 complaint that led to the Missouri investigation, said in an e-mail on Friday that his advocacy group was contesting the civil-rights office’s findings in that case and laying the groundwork to challenge the university’s programs in federal court if the office did not reverse itself.

Noting that the office’s letter of determination in that case hardly suggested that all such programs would withstand legal scrutiny—and that the Supreme Court appears poised to offer additional guidance on colleges’ use of race-conscious policies in a case involving admissions to the University of Texas at Austin—Mr. Clegg said, “we hope and expect that other schools will not conclude that they may close the doors to their programs in this way.”

Michael Meyers, who as executive director of the New York Civil Rights Coalition filed the 2006 discrimination complaint that led to the CUNY investigation, similarly said he planned to challenge the civil-rights office’s findings, which he called “a disingenuous and very shaky ruling.”

Delayed Responses

The federal office’s decision on Missouri, especially, represents a setback for critics of race-conscious higher-education policies, who during the administration of President George W. Bush persuaded many colleges to open up minority scholarships and programs to members of any race to avoid legal trouble.

The office, known as OCR, under President Bush did not actually find any colleges guilty of discrimination for operating race-exclusive programs—the Missouri, New York, and North Carolina investigations were among several involving minority programs that it began and left unresolved. But it had sent numerous signals that race-exclusive programs would not pass legal muster, declaring in a 2003 statement that “programs that use race or national origin as sole eligibility criteria are extremely difficult to defend.” The Justice Department under President Bush also got involved, pressuring Southern Illinois University to alter fellowship programs that had been reserved for women or members of minority groups.

The OCR’s investigations of the complaints similarly lingered unresolved for several years under the Obama administration. The agency finally mailed its determination letter to CUNY on November 23, and its letters to Missouri and Greensboro on November 26, but it did not otherwise announce its specific findingsIt referred to them only vaguely, without naming the institutions involved, in aCongressionally mandated report on its activities over the past four years that it released on November 28, just days before Russlynn H. Ali, the Obama appointee who had headed the office since May 2009, announced she was stepping down. The Chronicle obtained the letters from the Education Department after requesting details of actions referenced in the report.

Mr. Meyers, of the New York Civil Rights Coalition, said last week that he had not been notified by the OCR of its findings regarding his complaint about CUNY. Mr. Meyers, whose organization describes itself as committed to racial integration, characterized the office’s findings, and its failure to inform him of them, as evidence that it is “engaged in an exercise of Orwellian double talk and double standards of civil-rights law enforcement.”

Dollars for Diversity

Mr. Clegg’s complaint against the University of Missouri at Columbia had accused it of operating a range of racially exclusive financial-aid programs in violation of Title VI of the Civil Rights Act of 1964.

In its letter reporting its findings last month to Brady J. Deaton, chancellor of the University of Missouri, the civil-rights office said its investigation of the university had identified 34 scholarship programs that considered race or national origin as a condition for eligibility, and 18 more that considered students’ race or ethnicity as “a plus factor” in determining who received aid awards.

The letter said no scholarship had been awarded solely based on race or national origin “because other factors also are considered such as academic performance, demonstrated personal integrity, socioeconomic disadvantage, and involvement in the candidate’s school or community.” It added that the university evaluates each applicant for aid on an individual basis, in keeping with guidance handed down by the Supreme Court in its 2003 rulings in Grutter v. Bollinger and Gratz v. Bollinger, involving race-conscious admissions policies then in place at the University of Michigan at Ann Arbor.

Being a member of a minority group that is underrepresented on the campus, the letter said, “is not a guarantor of aid, nor is it the paramount factor affecting aid opportunities at the university.” In the 2009-10 academic year, it said, scholarships tied to race went to no more than 42 percent of such minority students.

The letter said the office’s investigators had accepted, as consistent with its own guidance to colleges, the university’s argument that race-conscious scholarship programs should be considered in the context of all financial aid awarded by the university, to make clear that being ineligible for a particular race-conscious scholarship does not preclude a student from receiving other scholarship funds. It also said the university had offered assurances that it was periodically reviewing the necessity of linking financial aid to race to achieve a diverse student body, and had shown that its past history of racial segregation, its location 120 miles away from the nearest urban center, and perceptions of an unwelcoming environment for minority students on the campus had hindered it from enrolling such students without offering scholarships tied to race or ethnicity.

The letter said the office also had accepted the university’s argument that, were the university precluded from considering race in awarding scholarships, such funds would probably be plowed into programs that aim to attract and retain minority students but do so much less efficiently and effectively. The OCR also said it had accepted the university’s assertions that converting the scholarships for which only minority students are eligible into scholarships that merely consider race or ethnicity as a factor would result in smaller aid awards to minority students, leading fewer to enroll.

Michael A. Middleton, the university’s deputy chancellor, on Friday issued a statement in which he said, “We’re very pleased with the ruling from the OCR. Diversity is important on our campus as we prepare our students for the global marketplace.”

In his e-mailed statement, Mr. Clegg of the Center for Equal Opportunity said the OCR letter to Missouri “should hardly be read as encouraging racially exclusive programs,” especially considering that the investigation lasted more than seven years and the letter spelled out “a variety of hoops that the university had to jump through” to show its programs could withstand strict scrutiny. He rejected several of the office’s key conclusions.

“We continue to believe that racially exclusive programs cannot survive the Supreme Court’s stated requirement in Grutter and Gratz that any use of race must also involve ‘individualized consideration,’” he said. The argument that students whose race precludes them from applying for a minority scholarship can always apply for some other award, he said, “smacks of ‘separate but equal,’ ignores the fact that each scholarship is different in terms of, for example, resources and prestige,” and otherwise does not hold up “since the court has long rejected similar set-asides in admissions.”

Questions of Separation

The OCR investigation of the City University of New York involved a total of 18 cases. One examined whether the CUNY system’s Black Male Initiative, established in 2005, violated both Title VI and Title IX of the Education Amendments of 1972, which prohibits sex discrimination at institutions that receive federal funds. A second case examined whether the CUNY system and its campuses were discriminating based on race or sex in selecting faculty and staff to carry out the effort. The other cases examined each of the 16 campuses where programs focused on black males had been set up.

In its letter last month to Matthew Goldstein, chancellor of CUNY, the office said it was closing all 18 cases as moot based on CUNY’s assurances in its promotional materials and discussions with the OCR that “all programs and activities of the Black Male Initiative are open to all academically eligible students, faculty, and staff, without regard to race, gender, national origin, or other characteristic.”

The letter acknowledged that the availability of such programs to all was not widely publicized when the CUNY system and its campuses began the effort, and that Queensborough Community College initially recruited only black males for participation in its program. But, the letter said, CUNY later altered its promotional materials, and Queensborough its promotional materials and recruiting practices, to make clear that any student could participate.

In response to the allegation that the CUNY effort had led to employment discrimination, the OCR letter said the question of whether there was race-based employment discrimination fell outside its jurisdiction under Title VI. Noting that 38 women held leadership positions associated with Black Male Initiative programs, it said it had found no evidence of sex discrimination in employment in violation of Title IX.

Jay Hershenson, a spokesman for the CUNY system, on Friday issued a written statement that said CUNY “is very pleased” with the OCR’s finding. The Black Male Initiative, his statement said, “was not created to promote race-exclusive programs but instead to help black males and others compete more effectively in higher education through mentoring, internships, and other support services.”

Mr. Meyers, of the New York Civil Rights Coalition, offered a much different take, arguing in e-mails that the OCR’s letter to Mr. Goldstein represented “the government sanctioning separate but equal on the pretext that the segregation—by race and sex—is a supposed ‘benefit’ to ‘African-American males.’” He argued that the Black Male Initiative had been exclusively for black males “on its face” and in every way it has been organized, advertised, and administered, sending messages to everyone else “that they need not apply.”

“This,” Mr. Meyers said, “is an appalling betrayal of the public policy and our federal laws that seek to end segregation and discrimination based on skin color and—in this case—discrimination based on the groups’ skin color and sex.”

Especially compared with its other recent decisions, the OCR’s resolution of the Greensboro case was more in keeping with how it had resolved such complaints under President Bush. In its letter to Linda Brady, the campus’s chancellor, the office said it was closing its investigation of the campus’s Scholars Recognition Program, which honors high-achieving students through an award ceremony rather than money, because the campus had voluntarily abandoned race as a criterion for eligibility, focusing instead on other indicators of potential disadvantage. The person who filed the complaint has never been publicly identified.

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