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Administration Asks Court To Overturn Ban on Race-Based Aid

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Washington

The Clinton Administration has joined the University of Maryland in asking the U.S. Supreme Court to overturn a lower court ruling that the institution's scholarship program for black students is unconstitutional.

In a brief filed last week, Solicitor General Drew S. Days 3rd argued that the U.S. Court of Appeals for the Fourth Circuit in Richmond used the wrong Constitutional standard when it ruled against the university's Benjamin Banneker Scholarship Program.

Mr. Days said the appeals court failed to consider that the program was established as an effort to combat the effects of discrimination. The university was segregated by law until the 1950's and, in practice, for almost three decades after that, according to federal and university officials.

The brief noted that the office for civil rights at what was then the Department of Health, Education, and Welfare had determined in the 1960's that the university discriminated against black students and began developing a remedy in 1969 in cooperation with the institution. The scholarship program was a part of that remedy.

Indeed, the Administration argued that the appeals court ruling has thrown into question the federal government's ability to monitor institutions for civil-rights violations, indicating that the Justice Department may seek the use of race-exclusive scholarships in litigation pending against the states of Louisiana and Alabama.

The ruling "fails to recognize the legal significance of the fact that O.C.R. has found the Maryland system of higher education to be in violation of Title VI" of the Civil Rights Act, the brief said.

A Narrow Argument

But the Administration stopped short of making a broader statement on the legality of race-based aid. In the past, Secretary of Education Richard W. Riley has stated that the scholarships should be allowed for such purposes as insuring campus diversity, as well as to remedy past discrimination.

Race-based scholarships became a high-profile issue in December 1990, when Michael L. Williams, who served as the Education Department's assistant secretary for civil rights in the Bush Administration, proclaimed them to be illegal. Mr. Riley issued guidelines last February essentially overturning that policy. (See Education Week, 2/23/94.)

The suit pending before the High Court was filed by Daniel Podberesky against the university in 1990 after he was rejected for the Banneker scholarship. His father is white and his mother is Hispanic.

A U.S. District Court in Maryland dismissed the case. Podberesky appealed to the Fourth Circuit, which remanded the case back to the lower court, which again dismissed it. The appeals court then ruled in favor of Mr. Podberesky, and the university appealed to the Supreme Court earlier this year. The Court has not yet decided whether to accept the case, Kirwan v. Podberesky (Case No. 94-1620).

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