On September 30, the Education Department issued a regulation conditioning billions of dollars in federal grants on whether applicants do things such as race-conscious hiring. This will incentivize school systems to discriminate based on race in hiring in order to get more money from the federal government. It has already drawn criticism from a former Education Department official and a Republican Congressman.
As The College Fix reports, “Now, the department will tie funding decisions to the applicant’s dedication to hiring ‘personnel who are members of groups that have historically encountered barriers’ due to their ‘gender; race; ethnicity; color; national origin; disability; age; language; migration; … sexual orientation’ and other factors.'”
This incentive to consider race in hiring seems like a violation of the federal appeals court ruling in Lutheran Church-Missouri Synod v. FCC (1998). That court ruling says that the government cannot give entities an incentive to hire minorities based on their race, by tying those incentives to discretionary benefits (like broadcast licenses). Not even veiled incentives are permitted, and the government cannot incentivize the use of race even if it does not amount to a racial quota.
The Education Department cites an “interest in awarding grants to a diverse and inclusive group of applicants” as a basis for its regulation update. But diversity is not generally a valid reason to give minorities a preference, according to the Supreme Court’s decision in Students for Fair Admissions v. Harvard College (2023).
As The College Fix notes,
Angela Morabito, a former press secretary for the department, opposes the changes. She told The College Fix in a recent phone interview that merit should be at the forefront for federal grantmaking criteria because the institutions that have the strongest qualifications will also be “prepared to serve the students the best.” “So when you’ve got the Biden-Harris Administration [and] Secretary Cardona infusing this DEI ideology into how billions of dollars every year get distributed, that’s a problem because it means they may not be picking the best grant applicants for a particular grant award,” Morabito said.
She recently published an article at the Independent Women’s Forum with more details about the changes. Morabito is a fellow at the forum and spokesperson for the Defense of Freedom Institute.
Previously, grant applicants were eligible to receive federal funding based on merit and other qualifications, according to her report. Now, schools, colleges, and other institutions will be more likely to receive federal funding if they hire employees and admit students who fall within specific demographic categories, according to the report.
Morabito said it is in Americans’ best interests for the grants to be awarded by state and local governments, and not solely controlled at the federal level. “It would mean more funding gets to the people it’s supposed to be serving and less of it gets absorbed by a giant bureaucracy, and it means that the people who are closest to the work can make the decisions that will drive the best outcomes for the students,” Morabito told The Fix.
Congressman Burgess Owens (R-Utah), who serves on the House Education Committee, will try to block the regulation using the Congressional Review Act. But that is unlikely to work.
The Congressional Review Act requires both house of Congress to vote to block a regulation, and the Democrats currently control one house (the Senate). The Democrats will likely block his attempt to use the Congressional Review Act. Pollsters predict that after the November election, the Democrats will likely control at least one house of Congress (they probably will pick up control of the House of Representatives, while losing control of the Senate), and thus be able to block any Republican attempt to use the Congressional Review Act to block Biden administration regulations.
