“A group instrumental in overturning affirmative action at the Supreme Court has teamed up with Tennessee’s attorney general” to challenge a race-based federal funding law, reports The College Fix:
Students for Fair Admissions joined Attorney General Jonathan Skrmetti this month in filing a lawsuit against the U.S. Department of Education arguing the agency’s Hispanic-Serving Institutions grant program is unconstitutional.
Under the program, the department awards millions of dollars in federal grants annually to colleges and universities if they enroll a certain number of Hispanic students.
“But the HSI program excludes colleges and universities that fall below its arbitrary ethnic threshold of 25% Hispanic,” the lawsuit states. “…There is no valid reason to make federal funds turn on race or ethnicity.”
The lawsuit was filed three months after the American Civil Rights Project sent a letter to Congress calling Minority-Serving Institution programs “patently unconstitutional.” ACRP first brought the possibility of such a lawsuit to the attention of Skrmetti.
“Just imagine what would happen if the federal government decided it would give money only to institutions that are at least 25% white,” says Gail Heriot, a recently retired law professor from the University of San Diego and chair of the American Civil Rights Project. “The race or ethnicity of an institution’s students should have nothing to do with whether it receives this federal funding.”
The Tennessee lawsuit argues that federal funds “should help needy students regardless of their immutable traits, and the denial of those funds harms students of all races.”
Currently the grants are used to improve scientific or lab equipment, construction or renovation projects, faculty development, academic tutoring, counseling programs, and student support services, among other endeavors, according to the U.S. Department of Education.
The HSI grant programs discriminate against regions that have relatively few Hispanics. Although there are many institutions in Tennessee that have Hispanic students, none of them are eligible for the HSI grant, because it requires that at least 25% of a college’s student body be Hispanic to qualify.
“This program isn’t about encouraging diversity,” says Professor Heriot. “A college’s student body could be 100% Hispanics and it would still be eligible for the funding.”
Conversely, the 25% threshold “leaves many needy students out in the cold,” notes Attorney General Skrmetti. The University of Memphis “is ineligible for the grant despite its 61% minority enrollment because its student body is insufficiently diverse according to the federal government’s arbitrary requirement.”
There are over 600 Hispanic-Serving Institutions in the United States, and that number grows every year. But they are mostly in California, Texas, Florida, Puerto Rico, New York, New Mexico and New Jersey.
The Center for Equal Opportunity, which opposes all racial preferences, says the HSI grant program violates the Constitution’s equal-protection guaranty.
“Hispanic students who just happen to live in regions with relatively lower Hispanic populations are shut out from the benefits of the program,” says Shawna Bray, CEO’s general counsel. “These kinds of incentives benefit no one, and could possibly end up perversely incentivizing segregation.”
The American Civil Rights Project has drafted a model bill that would convert MSI funds into need-based financial aid, by increasing the appropriation for the Pell Grant program.
The lawsuit does not challenge Historically Black Colleges and Universities. Professor Heriot explains, “The HSI program is very different from the Historically Black Colleges and Universities program. HBCUs are on an entirely different and firmer constitutional footing. They are not required to have or maintain a particular racial composition of its student body. These days HBCUs are majority white. To be eligible as an HBCU, a college or university must have been discriminated against in the past in the way it was funded.”
