Race-Based Aid, After a Statewide Ban

Andy Guess | Inside Higher Ed
October 24, 2007

State bans on affirmative action often leave public universities straining to reach out to minority students without falling afoul of the law. Whether inspiring changes in admissions policy, as Proposition 209 eventually did in the form of the University of California at Los Angeles’s “holistic” review system, or spurring a greater commitment to outreach programs, colleges seeking to keep their populations as diverse as possible often turn to methods that could indirectly boost minority enrollment.

The University of Michigan is the latest system to confront the effects of such bans. Proposal 2, the Michigan Civil Rights Initiative, passed by voter referendum last November and prohibits “state and local government from discriminating against or granting preferential treatment to any individual or group based on race, sex, color, ethnicity or national origin in the areas of public employment, public contracting and public education.” In the views of administrators, who have fought the initiative at every turn, the law leaves the university’s hands tied both at the admissions stage and in the financial aid office, where scholarships can no longer be directed specifically to members of underrepresented groups.

But that doesn’t preclude outside, private organizations from stepping in. The Alumni Association of the University of Michigan — a private, nonprofit group that is legally separate from the university system — last week announced its plans to begin offering scholarships next fall that would consider race and gender in its selection process. The association sees the program as a way to bolster the campus’s minority recruitment efforts despite the legal restrictions imposed on the university itself.

“Our board of directors was very interested after Proposal 2,” said Catherine Niekro, the association’s vice president for marketing and communications, to “help maintain and build diversity on campus.”

By all accounts, the university isn’t complaining. “The University of Michigan welcomes all resources that support access to higher education and, specifically, those that have the potential to assist qualified admitted students to fulfill their dreams and potential at U-M,” Kelly Cunningham, a spokeswoman, said in an e-mail.

The alumni association’s program is still in the planning stages; questions such as the specific admissions criteria and how many scholarships will be initially offered have not yet been settled. Niekro said the alumni board hoped to hash out the details over the next several weeks. The “seed money,” she said, will come in the form of $650,000 from the organization’s endowment, with subsequent donations — directed to the scholarship fund — expected not only from interested alumni but from corporations as well.

Niekro said the plan was not initiated with the university’s involvement. But “campuswide, the response has been pretty positive,” she said. “They’re our friends, but they’re not us,” said another university spokeswoman, who added that they’d first heard rumors about the alumni plan over the summer.

Initiatives by outwardly affiliated, but legally separate, alumni associations aren’t new. The University of Texas at Austin’s alumni group, the Texas Exes, began offering similar scholarships (such as the Black Texas Exes Challenge Grant Scholarship) after a federal appeals court ruled Texas’ affirmative action policies unconstitutional in 1996. Like the Michigan effort, the scholarships are privately funded; they factor in both need and academic achievement.

The UCLA Alumni Association also offers minority scholarships, but it can continue to do so only because its program was “grandfathered” in — that is, it existed before Proposition 209 passed in 1996 and could therefore remain in operation, although a legal web hampered any subsequent fund-raising efforts because the endowment is managed by the UCLA Foundation, which has explicit ties to the university system. Earlier this year, a private group of black UCLA alumni announced a $1.75 million fund for African-American students raised independently of both the university and the official alumni association.

Such private scholarships aimed at minority students serve as a way to attract students who might otherwise be tempted by generous financial-aid packages at competing private universities.

“My thought process is that ... individuals have found a way to support students that might not necessarily have the opportunities to be able to fund their education. And because Proposition 209 specifically focuses on institutions [not] being able to do it, these private organizations, that really can fund students for any criteria they want, become more important,” said George Brown III, the assistant director for alumni scholarships at UCLA’s alumni association. “Private institutions don’t have same problems,” he added, so as a result, “public institutions feel the brunt of trying to recruit viable minority students.”

The problem may be particularly acute in Michigan, suggested Edward P. St. John, a professor of higher education at the university. “The need for improvement in student aid is an artifact of the failure of the state of Michigan to invest sufficiently in need-based student aid,” he said in an e-mail. “Michigan ranks far below other states in the Great Lakes region and the national average for states on this funding of need-based grants. It is extremely difficult [for] prepared, low-income students to pay for public four-year colleges in the state; the net costs after Pell and state grants are far in excess of expected family contributions plus subsidized loans at federal lending limits for low-income students. This is a severe and extreme injustice specific to Michigan.”

Potential Legal Pitfalls

Whether the Michigan plan passes legal muster comes mainly down to whether it is, in fact, completely separate from any state-affiliated entities that would fall under the purview of Proposal 2. Roger Clegg, the president and general counsel of the Center for Equal Opportunity, which opposes affirmative action, noted that in essence, neither the university nor the alumni association would be able to assist the other in administering the minority scholarship program.

Michigan’s association, as an independent 501©(3) organization, doesn’t appear to have such a connection with the university; still, its Web site does reside on the university’s umich.edu domain, the Alumni Center is located on campus and its mission statement calls the group “a committed partner of the University.”

Beyond Proposal 2, Clegg said, the plan could violate federal law: “If the agreement with the recipients of the scholarship money amounts to a contract, then they are covered by 42 [United States Code] section 1981, which forbids racial discrimination in contracting.”

“If there’s no connection with the university ... and if the organization is itself not considered a part of the state, and if this is potentially a gift, if there is no contractual issue, then it might be able to do this,” he concluded.

On the potential legal issues involved, at least, the NAACP Legal Defense and Educational Fund agrees. Anurima Bhargava, the director of the fund’s education practice, pointed out that “scholarships are not immune under federal or state laws.”

Along with the American Civil Liberties Union, the NAACP filed a lawsuit last December seeking a “declaratory ruling” that Proposal 2 would not apply to policies at public universities that consider race in addition to other factors in admissions.

“Proposal 2 was not intended nor should it be interpreted to prohibit the efforts of alumni and other concerned citizens to ensure that students of color and women have access to higher education,” Bhargava said.

Meanwhile, St. John suggested that despite the current focus on financial aid and admissions, the post-affirmative-action landscape in the state will need to look earlier —- and concentrate on income groups — in order to increase access for underrepresented students.

“[Proposal] 2 has accentuated the need for increasing the university’s commitment to outreach, including partnerships with high schools, and to need-based student aid. However, these critical issues were evident long before [Proposal] 2 was put on the ballot. The passage of [Proposal] 2 has made it more evident that [the university] cannot afford to abdicate its responsibility to improve fairness in access,” he said.

“The University of Michigan is now responding to critical needs in the state by taking steps to equalize enrollment opportunity for admitted students across income groups. Many students — whites and minorities — will benefit from these new efforts.”