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Affirmative Action and Financial Aid Affirmative action is often defined as the effort to improve access to higher education for minority and female students. It is typically implemented through special recruitment efforts and by giving special preferences to minorities. For example, given two comparable candidates, affirmative action chooses the minority candidate over the non-minority candidate.
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Some of the key goals of affirmative action are to correct past discrimination at the college or university, to provide access to education to qualified and talented students of every race especially underrepresented minority students , to level the playing field by compensating for or eliminating current cultural biases against minority students such as those inherent in standardized academic tests , and to create diversity in the academic environment.
Diversity, in particular, can improve the educational experience of all students by promoting a variety of perspectives and a robust and enlightening exchange of ideas and viewpoints. This document presents a lay interpretation of the laws and court cases affecting affirmative action, and does not provide legal advice nor is it intended to provide legal advice.
All colleges, universities and race-based scholarship sponsors should have their admissions and financial aid policies reviewed by a qualified attorney. Federal Law Current US Supreme Court rulings permit public colleges and universities to consider race in college admissions and financial aid when it furthers "a compelling interest of the state in obtaining educational benefits that derive from a diverse student body".
Race may be considered as part of a holistic and flexible individual review process, but not as part of an automated mechanical process based on points or quotas.
Race needs to be considered for more than just simple ethnic diversity. The focus must be on the educational benefits that derive from a diverse student body, and diversity must consider not only race but also other characteristics that contribute to diversity. Educational benefits can include cross-racial understanding, the different perspectives of students who have experienced discrimination and related disadvantages, the breakdown of racial stereotypes, and the promotion of effective participation by all racial and ethnic groups.
Race may also be considered to compensate for actual past discrimination at the college or university. The discrimination must have occurred at the educational institution and not just in the local community or society at large. The remedy must be in proportion to the past discrimination and thereby limited in duration.
The US Supreme Court rulings give more detail on how to structure affirmative action processes in a constitutional manner, but the guidance is still somewhat limited, as follows: The US Supreme Court rulings apply to all public institutions and any private institution which receives federal funding.
State Law Several states have passed state restrictions on the use of race in college admissions and financial aid.
Affirmative action legal definition of affirmative action
Since the US Supreme Court rulings permit the use of race in certain situations but do not mandate it, it is possible for individual states to pass more restrictive laws. The following states have passed laws further restricting the use of race in college admissions and financial aid.
Proposition bans the use of race in college admissions and financial aid at California state colleges and universities through an amendment to the state constitution. The key clause of Proposition states: The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.
Proposition permits colleges to continue to administer awards if the use of race or gender is required in order to receive Federal funds.
Florida Government Jeb Bush signed an executive order in November eliminating the use of race and ethnicity in college admissions to the state university system.
Instead, the state adopted the "Talented 20 Program" which guarantees admission to students graduating in the top 20 percent of their classes and completing a specific minimum high-school curriculum. The language is sufficiently broad as to affect both college admissions and financial aid: Similar language applies to the state, its political subdivisions and instrumentalities. The amendment to the state constitution went into effect on December 23, Note that these state laws only apply to public institutions, not private colleges and universities.
The argument that private colleges and universities are affected by the ruling hinges on Title VI of the Civil Rights Act of CRA , which bans discrimination on the basis of race at any institution that receives federal funds. In addition, Title VII of the CRA, which bans discrimination in employment, may apply to graduate fellowship and assistantship programs to the extent that they can be construed as employment. However, the recent US Supreme Court rulings did find that colleges have a compelling interest in the use of race in admissions, and so affirmative action is not in itself unconstitutional.
The government may treat individual people differently according to race only for the most compelling reasons and when the racial classification is narrowly tailored to further those compelling interests. When race must be considered to further a compelling interest, it does not violate the equal protection clause of the 14th amendment when the use of race is narrowly tailored to achieve the compelling interest and the goal is sufficiently compelling to warrant the use of race.
This means that private colleges can continue to consider using race in college admissions and financial aid, to the extent that they do not rely on mechanical formulas involving race. Since private colleges tend to review every application and use a more subjective process, they can avoid the need to use an automated system involving race. This gives them an advantage over public colleges, which are often faced with a much larger applicant pool and class size.
In addition, schools that receive Federal funds are bound by Title I, Part B, Section a of the Higher Education Act of which prohibits using federal funds, directly or indirectly, to discriminate on the basis of race, religion, sex or national origin, by Title IX, Section of the Education Amendments of , which bars discrimination on the basis of sex note exception in a 9 for scholarships awarded by beauty pageants , and by the Age Discrimination Act of , which bars discrimination on the basis of age.
There are also several Federal regulations that prohibit discrimination in the provision of financial aid. For example, 45 CFR Similarly, 34 CFR Race-based Scholarships Funded by Private Donors There is also some debate about whether schools may administer minority scholarships that are funded by private donors.
Rice University, for example, has rejected donations from alumni who sought to place racial restrictions on scholarship funds. On the other hand, there is no problem with purely private minority scholarships such as the Gates Millennium Scholarship Fund and the United Negro College Fund.
The problem arises when the college has a role in the selection of recipients or provides resources for the raising of funds. If the private donor specifies a selection method that provides the school with little or no room for subjective judgment, such as requiring the minority scholarship to be awarded to the most academically talented minority student who demonstrates financial need, such an award would likely be constitutional.
Likewise if the donor selects the recipients directly. The issue is who controls the selection process and the extent of this control. The form used to apply for c 3 tax exempt status, IRS Form , asks in Schedule B, Section II, Question 4 whether Does or will the organization or any department or division within it discriminate in any way on the basis of race with respect to admissions; use of facilities or exercise of student privileges; faculty or administrative staff; or scholarship or loan programs?
If "Yes," for any of the above, explain fully. In many cases the college can ask the courts to strike the racial restrictions of existing funds. Examples cited by the IRS summary include Lockwood v. William Marsh Rice University, S. These court cases found the racial restrictions to be impractical and an impediment to the operation of the schools. One could also argue that the creation of a tax exempt scholarship fund establishes a kind of public trust, and that public policy can dictate the manner in which the funds are expended.
Restrictions that are contrary to public policy can and should be invalidated. In cases involving public colleges, the courts have also shown a willingness to strike racial restrictions on constitutionality grounds. Facilitating race-based scholarships would be clearly incompatible with public policies that prohibit states from discriminating on the basis of race, directly or indirectly. See, for example, Pennsylvania v.
Board of Directors, U. Such universities have no choice but to eliminate the program, transfer the funds to a generic scholarship program, or change the selection criteria to no longer use race or gender. Proposition also considers private gifts and endowments to be university funds, and so prohibits donor preferences.
If the university cannot ask the donor to modify the terms or a court refuses to permit the modification of the selection criteria when the donor is no longer living , the university may have no choice but to transfer the funds to an external non-profit organization.
However, this restriction on private gifts and endowments has yet to be tested in the courts. There is, however, another option that may work for many institutions.
This option is known as pooling.
| National Review
Specifically, the institution would award funds to all students based on non-race-specific criteria, such as GPA and financial need. Practically speaking, this is what happens anyway for most awards. The only problem would occur when the donor funds exceed the financial need of available students, in which case the restricted funds must remain unexpended. The school cannot allow the availability of racially restricted funds to influence the number, amount or types of awards it offers, since that would be tantamount to setting a quota.
Specifically, the school cannot increase the overall number of awards simply to avoid having unexpended funds left in the racially restricted scholarship pool. The awarding philosophy must be independent of any considerations arising from the existence of racially restricted scholarships. From this perspective, pooling only works when the racially restricted scholarships account for a small portion of the financial aid awarded by the school.
The school should also ensure that its current awarding policy is determined independent of any consideration of the racially restricted scholarship funds.
This includes any historical acknowledgment of the availability of the restricted funds. The school should sever any such historical ties by calculating the amount of the financial aid budget based on objective principles without regard to race. They indicate situations in which a college could administer minority scholarships using its own or donated funds.
Another approach is to have a completely separate and independent legal entity administer the scholarship. The college cannot control the entity in any way or be involved in the selection of recipients. Some colleges, for example, have completely independent alumni associations than can operate such scholarships. A good example is the Alumni Association of the University of Michigan a separate legal entity that is independent of the college , which announced that it would begin providing minority scholarships after the passage of the Michigan Civil Rights Initiative Proposal 2.
Financial Aid for Disadvantaged Students A college may make awards of financial aid to disadvantaged students, without regard to race or national origin, even if that means that these awards go disproportionately to minority students.
Financial aid may be earmarked for students from low-income families. Financial aid also may be earmarked for students from school districts with high dropout rates, or students from single parent families, or students from families in which few or no members have attended college.
None of these or other race-neutral ways of identifying and providing aid to disadvantaged students present Title VI problems. A college may use funds from any source to provide financial aid to disadvantaged students. Financial Aid Authorized by Congress A college may award financial aid on the basis of race or national origin if the aid is awarded under a Federal statute that authorizes the use of race or national origin.
Financial Aid To Remedy Past Discrimination A college may award financial aid on the basis of race or national origin if the aid is necessary to overcome the effects of past discrimination. Such a finding may also be made by a State or local legislative body, as long as the legislature has a strong basis in evidence identifying discrimination within its jurisdiction for which that remedial action is necessary.
In addition, a college may award financial aid on the basis of race or national origin to remedy its past discrimination without a formal finding of discrimination by a court or by an administrative or legislative body. If the award of financial aid based on race or national origin is justified as a remedy for past discrimination, the college may use funds from any source, including unrestricted institutional funds and privately donated funds restricted by the donor for aid based on race or national origin.
A State may award financial aid on the basis of race or national origin, under the preceding standards, if the aid is necessary to overcome its own past discrimination or discrimination at colleges in the State.