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E.D. Policy On Race-Exclusive Aid Reverses Bush Position

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The Education Department is set this week to release long-awaited policy guidelines that would reverse the Bush Administration's position that race-exclusive scholarships violate federal civil-rights law.

According to a news release from the department, the new policy will set out circumstances under which such scholarships are legal, but will do so in terms broad enough to cover most existing higher-education policies.

The announcement that the proposal would be published in the Federal Register as soon as Feb. 23 came as word leaked out from briefings the department had conducted for higher-education representatives.

The federal government's minority-scholarship policy has been mired in controversy since December 1990, when Michael L. Williams, then the assistant secretary for civil rights, essentially declared that most scholarships reserved for members of minority groups are illegal under Title VI of the Civil Rights Act of 1964, which bars race discrimination in federally funded programs.

In an interview, Secretary of Education Richard W. Riley said the new policy guidance recognizes minority scholarships as a critical tool for achieving diversity in higher education while staying within the parameters of the law.

"The important thing is, we have in large measure clarified what our interpretation of the laws and regulations would be,'' he said.

Mr. Riley said the scholarship policy was influenced by a recent General Accounting Office report, public comments, and past practice.

"It's not any change from what's been the practice of all previous Presidents since the Civil Rights Act was passed, except this rather confusing policy guidance in 1990,'' Secretary Riley said.

Diversity and Discrimination

According to the department's news release, the policy would allow institutions to make race-based scholarship aid available:

  • To disadvantaged students, even if the awards go disproportionately to minorities.
  • When authorized by federal law, as in the Patricia Roberts Harris Fellowship.
  • To remedy the effects of an institution's or state system's past discrimination. The Administration would give institutions the discretion to determine whether they need such scholarships.
  • If the scholarships are "narrowly tailored'' to diversify the campus.
  • If they originate with private sources who wish to restrict the money to minorities in an effort to promote diversity or remedy discrimination.

The department also announced last week that students receiving minority scholarships established by noninstitutional organizations would not be required to go to a predominantly white institution, but could attend historically black colleges and universities.

In contrast, the policy proposed by former Secretary Lamar Alexander in December 1991 stated that race-based scholarships were legal only to remedy an institution's past bias, as determined by a judge, federal officials, or a legislature; when federally authorized; or when such aid funded by private sources would not "limit the amount, type, or terms of financial aid available to any student.''

As in the new policy, Mr. Williams had also suggested targeting aid to disadvantaged students.

The most significant difference is that the Bush Administration argued that minority scholarships cannot legally be used simply to foster campus diversity, although Mr. Alexander said colleges could legally offer scholarships for that purpose if race is one of several criteria.

At the request of lawmakers, Mr. Alexander and then Mr. Riley deferred issuing final guidance until the G.A.O. report was ready. Last month's release of the report, which studied institutions' use of race-based aid, paved the way for this week's announcement. (See Education Week, Jan. 26, 1994.)

Court Action Expected

Department officials expect most institutions' programs to pass muster, but schools that must alter them will have two years to do so. In the meantime, no student's aid would be jeopardized.

The policy is to go into effect 90 days after publication.

Higher-education groups praised the department's decision.

"I'm elated because I think it sends the right signal at the right time,'' said Peter McGrath, the president of the National Association of State Universities and Land-Grant Colleges.

Higher-education officials had complained that the Bush Administration policy sent a chilling message to minority students, and said special scholarships are crucial to let them know they are welcome on predominantly white campuses.

But opponents of the scholarships said that the U.S. Supreme Court will ultimately determine the legality of race-based scholarships, and some proponents agreed.

"We already are challenging race-based scholarships, and this policy has no bearing on our lawsuit,'' said Richard Samp, the legal counsel for the Washington Legal Foundation. "All this is saying to colleges and universities is, if you follow this policy, [the federal government] won't go after you.''

The foundation is challenging a University of Maryland scholarship program aimed at assisting black students. The case is pending in the U.S. Court of Appeals for the Fourth Circuit.

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