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Appellate Court Declares Black Scholarships Illegal

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Washington

A federal appeals court has ruled that a scholarship program for black college students is unconstitutional because it was not "narrowly tailored" to redress past racial discrimination.

A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit late last month reversed an earlier district-court ruling in favor of the University of Maryland at College Park, a public institution that has offered about 30 full scholarships to academically talented black students each year since 1979. (See Education Week, Nov. 24, 1993.)

"I think it's a complete victory for our side," said Richard A. Samp, the chief counsel for the Washington Legal Foundation, the public-interest law firm that represented the plaintiff, Daniel J. Podberesky. "If a state with such a history [of bias] is not permitted to offer race-based scholarships in an effort to remedy that past," he said, "then I can't think of any state that could do so."

The University of Maryland did not admit black students until 1954, the year of the U.S. Supreme Court's historic decision in Brown v. Board of Education.

The Fourth Circuit decision "tells even the best and the brightest African-American youth that they should expect to be sideline players when it comes to higher education," said Elaine R. Jones, the director-counsel of the NAACP Legal Defense and Educational Fund, which represented black scholarship recipients who intervened in the case.

The university is expected to ask the full appeals court to rehear the case. If denied, it would likely appeal to the Supreme Court.

Controversy over race-based scholarships has simmered since 1990, when Michael L. Williams, the Bush Administration's assistant secretary of education for civil rights, declared that race-exclusive awards violated federal civil-rights law. The Education Department proposed rules that essentially backed Mr. Williams's view, setting out narrow circumstances under which race could be a scholarship criterion.

Last February, the Clinton Administration released a new set of guidelines on race-based scholarships that reversed that position.

As of last week, federal officials had not issued any statement on the Fourth Circuit ruling.

A Recruiting Tool

Mr. Podberesky, a Hispanic student, brought the suit against the University of Maryland in 1990. Because of a dispute with the university over the calculation of his high school grade-point average, Mr. Podberesky, then a freshman, did not meet the criteria for a Key scholarship, an award open to students of all races. He did meet the academic criteria for a Banneker scholarship--the university's program for black students.

The university contended that the scholarships reserved for blacks were necessary to address four vestiges of discrimination: its poor reputation among African-Americans, the underrepresentation of black students in its student body, black students' low retention and graduation rates, and a campus atmosphere perceived as hostile to them.

The ruling issued by the three-judge panel cited a two-step process for determining the constitutionality of "race-conscious remedial measures." The panel said that an institution must demonstrate a "strong basis in evidence for its conclusion that remedial action is necessary," and the measure must be "narrowly tailored" to meet remedial goals.

The court found that the University of Maryland failed to meet either test.

"We are troubled by the decision, because if it were allowed to stand it would eliminate one of most effective tools for recruiting African-Americans," said Roland H. King, a spokesman for the university.

The number of blacks in the university's undergraduate population has risen from 7.4 percent in 1979 to 12.3 percent this fall.

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