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Appellate Court Rejects Race-Based Scholarships

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A federal appeals court has ruled that a University of Maryland scholarship program for black students is unconstitutional unless it is shown to be a remedy for the present-day effects of past acts of racial discrimination.

The Jan. 31 ruling by a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va., is legally binding only in Maryland, North Carolina, South Carolina, Virginia, and West Virginia.

It is likely, however, that the ruling will have implications for race-based scholarship programs in numerous state higher-education systems.

In December, Secretary of Education Lamar Alexander declared that most college scholarships awarded on the basis of race are illegal. But the Administration's policy included several exceptions, including scholarships designed to remedy past discrimination. (See Education Week, Dec. 11, 1991.)

Mr. Alexander also suggested that the courts would ultimately have to decide the legality of such aid.

"This decision would end up striking down most minority-scholarship programs" at state universities, said Richard Samp, the chief counsel of the Washington Legal Foundation, a conservative public-interest group that backed the challenge to the Maryland program.

At issue in the case was the Benjamin Banneker academic scholarship program at the University of Maryland, which provides four years of full tuition, room, and other expenses to at least 20 African-American students a year. The current value of the scholarship exceeds $33,500 over four years.

The university said the program is tied to its ongoing desegregation effort, which is still under the supervision of the federal government.

In his challenge to the program, Daniel J. Pedberesky, a sophomore at the university who is part Hispanic, contends that he met all the academic requirements of the scholarship program but was denied aid solely because he is not African-American.

A federal judge in Baltimore dismissed the lawsuit, but the appeals panel reinstated it, saying that "a finding of past discrimination is not sufficient" to justify a race-based remedy such as the Banneker aid. "There must be some present effect of this past discrimination that the program is designed to redress," Circuit Judge Jane A. Restani wrote in the appellate opinion.

The opinion was based on the 1989 U.S. Supreme Court ruling in City of Richmond v.J.A. Croson Company, which held that a race-based remedy, such as a racial set-aside in city contracts, must be based on evidence of lingering discrimination.

The appellate panel did not go so far as to invalidate the scholarship program, but it returned the case to the federal district court, where it said Maryland officials must prove that the race-based scholarship program is addressing vestiges of past discrimination at the university.

Without such evidence, the opinion said, the district judge should rule for the plaintiff.

Andrew H. Baida, an assistant attorney general of Maryland, said the appeals court "did not accept our argument that the continuing federal supervision of our desegregation efforts was sufficient enough to show [the existence of] present effects of past discrimination."

Maryland officials have not decided whether to appeal, Mr. Baida said.

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