A Month Later, Educators Are Still Seeking Final Word on Race-Exclusive Scholarships
Washington--A month after the Education Department touched off a national firestorm with a move to curtail race-exclusive scholarships, education representatives here are still looking for clarification--or reversal--of the Administration's policy.
Michael L. Williams, the department's assistant secretary for civil rights, has not spoken publicly on the issue since a Dec. 18 news conference at which he modified an earlier statement that such scholarships, with certain exceptions, violate Title VI of the Civil Rights Act of 1964.
Mr. Williams was to be on leave until this week, and other department officials are refusing to comment on the issue, according to a department spokesman.
But the issue was a prime topic last week in conversations between Lamar Alexander, President Bush's nominee as Secretary of Education, and leading members of the Senate Labor and Human Resources Committee, according to Senate aides.
Mr. Alexander did not express an opinion on the matter, the aides said, but is certain to be pressed for his views when the committee holds hearings on his nomination.
Senator Paul Simon, a panel member, postponed plans to hold hearings this week on the scholarship controversy to allow Mr. Alexander more time to formulate a position, aides to the Illinois Democrat said.
Under the modified policy enunciated by Mr. Williams, colleges may administer race-exclusive scholarships as long as the awards are financed with private funds earmarked for that purpose, or are established under a court order.
Members of the Congress have vowed to draft legislation that would reverse the policy, either separately or as part of the reauthorization of the Higher Education Act later this year.
College officials, meanwhile, appear to be taking a wait-and-see attitude, with many vigorously defending minority-scholarship programs and pledging to continue them.
James E. Sulton, who handles minority affairs for the president of the University of Wisconsin system, said the 137,000-student system would unconditionally "continue to administer our undergraduate-retention grant, our freshman grant, our minority-teacher forgivable-loan program, and our graduate, professional, and doctoral program."
He said the system annually administers some $2.2 million in minority grants and scholarships.
College and university officials see Mr. Williams "as a flash in the pan," Mr. Sulton said.
Nearly 700 colleges responding to a recent survey said they awarded grants or scholarships to minority students regardless of financial need. (See related story on this page.)
The furor over the Administration's policy began with a Dec. 3 letter from Mr. Williams to the executive director of the Fiesta Bowl about the bowl's plans to give $100,000 each to the University of Alabama and the University of Louisville, the schools playing in the annual football contest, for the establishment of minority-scholarship funds.
In the unsolicited letter, Mr. Williams stated that the Education Department's office for civil rights "interprets [Title VI of the Civil Rights Act of 1964] as generally prohibiting race-exclusive scholarships."
He further stated that, while private entities could create scholarships limited to a particular race, colleges receiving federal funds could not assist in administering them. Schools could adopt such programs if they are under court order to desegregate, he added.
The letter brought expressions of outrage from civil-rights and education officials, who said Mr. Williams was unilaterally reversing long-established policy and threatening to destroy years of progress in opening college doors to minorities.
Mr. Williams said later that he had not expected the "political firestorm" that erupted from his move, which he called "politically naive." He said that before sending the letter he had consulted Secretary of Education Lauro F. Cavazos, the department's general counsel, and a number of lower-level White House officials.
President Bush, already under fire for his veto of the 1990 civil-rights bill and efforts by some Republicans to make affirmative-action programs a campaign issue, said he was "very disturbed" by the opinion and ordered it reconsidered.
In response to the criticism and reportedly at the behest of the White House, Mr. Williams outlined a revised, six-point approach to race-exclusive scholarships on Dec. 18.
He said colleges can administer privately funded scholarships for minorities, but cannot use their own funds or state funds for this purpose if they receive federal money.
Acknowledging that "the position that has been very clear to us has not been clear to the colleges and universities," Mr. Williams said schools would have a four-year grace period to ensure they comply with the new policy, and that he would investigate race-based scholarships only in response to specific complaints.
Mr. Williams also said that U.S. Supreme Court rulings in Regents of the University of California v. Bakke, which held minority-admissions quotas to the university's medical school to be unlawful, and City of Richmond v. J.A. Croson Company, which struck down government-contract set-asides for minorities, forbid the distribution of race-exclusive scholarships funded by state and local governments.
Because of those decisions, he maintained, the OCR "cannot [address] administratively" such scholarships--a view questioned by other legal experts, who note that the office is specifically charged with enforcing civil-rights statutes and Supreme Court decisions on civil rights.
Mr. Williams also defended his move away from his earlier position.
"I think our [original] decision was legally correct, but obviously there are different ways of looking at this," he said. "There are other legal theories, legal bases, that will still fit. And the position we took fits those legal theories."
He also emphasized that race can be a legitimate factor in awarding scholarships as long as it is considered with other criteria, such as financial need.
While a few civil-rights and education officials praised the Administration and Mr. Williams for reconsidering the department's position, most scrambled to understand the new interpretation or attacked it outright.
Many educators criticized Mr. Williams for "making policy by press release" and questioned whether the department's position was legally binding and would be upheld in court. They noted that the department did not rule on a complaint or publish regulations before arriving at its position.
David S. Tatel, a Washington lawyer who was the civil-rights chief for education under the Carter Administration, argued that Mr. Williams's statements did not bind the use of federal funds and amounted to nothing more than "personal opinion."
Janell M. Byrd, assistant counsel for the NAACP Legal Defense and Educational Fund, said the policy "seems to run head-long into the Civil Rights Restoration Act of 1988," which states that if an institution receives federal aid, the institution as a whole must not discriminate.
The law overturned a Supreme Court ruling, in Grove City College v. Bell, that held that anti-discrimination laws applied only to the specific program receiving federal funds.
"If it is somehow illegal or discriminatory for the university to fund minority-specific scholarships with its own funds, then it would seem to be illegal for them to administer them as well," Ms. Byrd said.
John Scully of the conservative Washington Legal Foundation praised Mr. Williams's original statement on the issue, and said he hoped that the second announcement would not amount to a reversal. "If they're going to enforce the law, I applaud that," he said. "If they're not going to, or ignore the law, I disagree."
Mr. Scully, who has filed a complaint with the OCR against Florida Atlantic University and the University of Florida over their use of minority scholarships, said he has been contacted by a number of students willing to challenge race-exclusive scholarships at their schools.
Mr. Williams said five complaints over minority scholarships are pending with the OCR.
While critics said Mr. Williams's statements diverged sharply from long-standing policy, the assistant secretary maintained that he was attempting to clarify a department position that over the past decade had been on both sides of the issue.
Among the inconsistencies cited by the department:
In March 1982 and March 1983, department civil-rights officials ruled that race-exclusive scholarships as voluntary affirmative action were legal under the Civil Rights Act of 1964 and were consistent with the Bakke decision.
"Admissions quotas, the policy at issue in Bakke, unlike many other policies, may result in the exclusion of an individual from a university on the basis of race or national origin. The availability of a particular financial aid program does not have such a far-reaching effect," Burton M. Taylor, director of the division of postsecondary education for the OCR, wrote in 1982 to a complainant who challenged a minority-scholarship program at the Massachusetts Institute of Technology.
In March 1988, an OCR regional director told Dartmouth University officials that a race-exclusive scholarship program proposed by Proctor & Gamble was legally questionable and should be redirected toward economically disadvantaged students.
Fourteen months later, a different OCR regional director said that black-only scholarships to David Lipscomb University in Nashville were legal because they were being used to redress past discrimination. White-only scholarships were illegal because whites had not been discriminated against, the official said.
In 1986, an OCR official said the office could not rule on the legality of a proposed minority-scholarship program at Southwest Missouri State University because the school was not under court order to desegregate and did not present evidence that it wanted to establish the scholarship to redress past discrimination.
Most higher-education groups say they are not sure what to tell their members about the policy's potential impact. It is unclear, for example, how and whether the policy might be applied to scholarships earmarked for children of alumni or students from certain geographical areas.
"The subtlety of the way these things are being played leaves open a great deal of legal questions and administrative questions," said Tim Christensen, associate director of the National Association of Financial Aid Administrators.
For now, most groups are advising schools to continue their current scholarship programs until the grace period expires or the policy is reversed--by the courts, the Congress, or the department itself.
Congressional moves to overturn the policy are already under way.
Senator Simon has directed his staff to draft legislation that would reverse the policy.
Representative F. James Sensenbrenner, Republican of Wisconsin, is considering similar legislation.
The House Education and Labor Committee held a hearing on the policy last month. Representative Kweisi Mfume, a Maryland Democrat, called on Mr. Williams to resign, and the panel's retiring chairman, Augustus F. Hawkins of California, said Mr. Williams's cancellation of plans to testify was "an affront to the committee, to the Congress, and to American people."