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Court Lets Stand Ruling Invalidating Race-Based Aid

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Washington

The U.S. Supreme Court last week let stand a controversial federal appeals-court ruling that invalidated a scholarship program for black students at the University of Maryland.

The High Court's action, while not a ruling on the merits of the appeal, nevertheless prompted widespread debate about the future of minority-targeted financial aid.

Opponents of race-based aid predicted that the Justices' refusal to review the Maryland case would encourage legal challenges to similar programs across the nation.

"It would behoove university administrators to review their financial-aid programs and to redesign them where appropriate, because I think many of them sit on perilous legal ground," said Michael L. Williams, the former Education Department civil-rights chief who created a firestorm in 1990 when he questioned the legality of race-based scholarships. (See Education Week, 1/13/93.)

Defenders of the Maryland scholarship program, which included the Clinton Administration and most major higher-education and civil-rights groups, expressed dismay that the High Court declined to take the case, Kirwan v. Podberesky (Case No. 94-1620).

But they sought to downplay any national implications of the Court's May 22 action.

"This is a case based uniquely on the circumstances at the University of Maryland," said Judith Winston, the Education Department's general counsel.

The department is standing by its policy that institutions may award financial aid based on race or national origin to remedy past discrimination or to promote student diversity, she said. Those guidelines were issued in 1994, reversing a Bush Administration policy that backed Mr. Williams's view. (See Education Week, 2/23/94.)

"We continue to believe that the [U.S. Court of Appeals for the] Fourth Circuit was overly narrow in its application of the proper legal standard to the facts of the case," Ms. Winston said.

Case Background

The case involves the Benjamin Banneker scholarship program at the University of Maryland's main campus in College Park. The program was created in 1978 amid a long-running legal challenge of the university's desegregation efforts by the federal government.

Under the Banneker program, African-American students receive full four-year scholarships if they meet certain academic and leadership standards. The university has a similar program open to all students known as the Francis Scott Key scholarship. Each program has awarded about 30 full scholarships each year.

In 1990, Daniel J. Podberesky, a white student whose mother is Hispanic, filed suit challenging the Banneker program

Mr. Podberesky's academic credentials fell short of the requirements of the Key program but would have qualified him for the Banneker scholarship had he been black. He argued that the race-specific scholarship program was a violation of Title VI of the Civil Rights Act of 1964 as well as the guarantee of equal protection in the 14th Amendment to the U.S. Constitution.

The Fourth Circuit court struck down the Banneker program last fall, ruling that the university had failed to show that it was narrowly tailored to address the past effects of segregation.

The Clinton Administration had strongly urged the High Court to review the case, arguing that the Fourth Circuit had failed to give enough weight to the fact that Maryland had been found in violation of Title VI.

The appeals court's decision "will cause substantial confusion regarding the legal and constitutional standards applicable to scholarship programs" designed to remedy past discrimination, the Administration said in its brief.

Janell M. Byrd, a lawyer with the NAACP Legal Defense and Educational Fund, which represented a group of Banneker scholars in the case, said the High Court's action may indeed prompt similar legal actions.

"Those opposed to affirmative action will now go out and say 'you've got to change your programs,'" she said. "Those [universities] afraid of being sued may run in the other direction."

More Lawsuits?

Richard A. Samp, a lawyer with the Washington Legal Foundation, an advocacy group that challenged the Banneker program on behalf of Mr. Podberesky, agreed that such challenges are likely to occur.

"The education establishment is firmly wedded to these kind of programs," he said. "If they can come up with the slightest reasoning to distinguish their situation from that at the University of Maryland, they will. They won't voluntarily change."

Mr. Williams, who came under heavy criticism for his position on race-based scholarships, said in an interview that he feels "vindicated" by the Fourth Circuit ruling and the Supreme Court's refusal to review it.

"I don't think you can use race-specific conduct in order to achieve racial or ethnic diversity," Mr. Williams said. "We have to be honest about the fact that the real reason college campuses do not look like America is because we have failed in K-12 education to prepare minority youngsters to enter college."

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