Artist in Residence must be black, but once selected, can bring another person (black or not) at the other person’s own expense.
The Equal Protection Project (EPP)(EqualProtect.org) of the Legal Insurrection Foundation has challenged numerous racially discriminatory programs done in the name of Diversity, Equity, and Inclusion. This discrimination comes in a variety of ways, but the overarching theme is to exclude or diminish some people, and promote others, based on race, color, or ethnicity.
The latest iteration was a program at the University of Nebraska at Lincoln, organized in cooperation with a New York City based outfit called Black Public Media, that prioritized black filmmakers for a subsidized residential program. The lead on a team needed to be black, but once the black person was accepted, he or she could pick anyone (black or not) as the second person. That second person was not subsidized.
EPP has filed a Civil Rights Complaint with the Office of Civil Rights of the U.S. Department of Education. As full copy is at the bottom of this post, and reads in part:
We bring this civil rights complaint against the University of Nebraska-Lincoln (“UNL”), a public institution, for creating, supporting, and promoting – in connection with a New York City-based nonprofit called Black Public Media 1 – a program called the “Black Public Media Residency” (“BPMR”) for “Black filmmakers, creative technologists and artists who need access to emerging technology, studio time or work space.”2
UNL’s creation, ongoing sponsorship and active promotion of a program giving admissions preference based on race and skin color violates the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution as well as Title VI of the Civil Rights Act of 1964 (“Title VI”) and its implementing regulations. See 42 U.S.C. § 2000d et seq.; 28 C.F.R. Part 100; see also Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003) (“We have explained that discrimination that violates the Equal Protection Clause of the Fourteenth Amendment committed by an institution that accepts federal funds also constitutes a violation of Title VI.”).
The unlawfulness of such racial preferences in admissions was confirmed recently by the United States Supreme Court in Students for Fair Admissions Inc. v. President & Fellows of Harv. Coll., 2023 U.S. LEXIS 2791 (2023). There, the Court declared that “[e]liminating racial discrimination means eliminating all of it …. The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal.” Id. at 34 (cleaned up). “Distinctions between citizens solely because of their ancestry [and race] are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Id. at 35 (citation omitted).
OCR should investigate the blatantly discriminatory UNL BPMR program and the circumstances under which it was created, promoted, and approved, take all appropriate action to end such discriminatory practices and impose remedial relief. This includes, if necessary, imposing fines, initiating administrative proceedings to suspend, terminate, or refuse to grant or continue federal financial assistance, and referring the case to the Department of Justice for judicial proceedings to enforce the rights of the United States.
The details of the program are set forth in the Complaint:
According to the UNL website, the BPMR “was launched at the University of Nebraska–Lincoln during the summer of 2022” as “a collaboration” between Black Public Media and UNL’s Johnny Carson Center for Emerging Media Arts (“Carson Center”).3 [image omitted]
Its purpose is “to serve Black filmmakers, artists and creative technologists – given the well-documented, low numbers of Black filmmakers, executives and artists working in the tech industry and the high cost to acquire specialized equipment … and training on emerging technology equipment and software.”4 [image omitted]
The residency is an in-person one- to three-week experience on UNL’s campus that provides participants “access to specialized equipment, studio facilities and workspace … [and] formal instruction.”5 In addition, the residency provides each participant with a $5,000 to $10,000 grant from Black Public Media “to develop their projects further.”6 This years’ residency took place between July 7 and July 29.7
According to the program’s “FAQ” on the Black Public Media website – which is described as “the fine print” – the program seeks “to develop the talent of producers of color,” and therefore “seek[s] projects in which a person of African descent is in a key creative position” such as “writer, director, and producer roles.”8 Once that Artist-In-Residence has been selected, one additional team member of that artist’s project may accompany him or her to the program at UNL at their own expense, and “[t]he second team member does not need to be Black or of African descent.”9
So the way it is structured, a black filmmaker must be the primary person to apply, but that black filmmaker once selected, can select any person, including a non-black person.
The Lincoln Journal Star in a story that also ran in the Omaha World-Herald, reported:
A legal nonprofit that has targeted colleges and universities offering preferential treatment based on race accused the University of Nebraska-Lincoln of racial discrimination for creating and supporting a residency program for Black filmmakers.
The Equal Protection Project, which was involved in the U.S. Supreme Court case challenging Harvard University’s race-conscious admission policies, filed the complaint against UNL with the U.S. Department of Education’s Office of Civil Rights on Aug. 6….
William Jacobson, a Cornell University professor and the founder of conservative blog Legal Insurrection, which launched Equal Protection Project in February, said requiring at least one person on the team of creatives to be Black diminished the opportunities for others.
“The racial discrimination of the (UNL) program is particularly pernicious because it requires that student teams organize themselves around race, with one team member required to be Black,” Jacobson said in a statement. “This puts students in the position of choosing among their peers focused on race. Making students complicit in the discrimination is offensive and troubling.”
Three filmmakers and artists – Eboni Zamani of Philadelphia, J. Bird Lathon of Clarksville Tennessee, and Conrad Burgos Buffalo, New York – were selected for the second year of the residency program funded through a $40,000 award from the National Endowment for the Arts, which ran between July 10-21.
Because UNL receives federal funding, it is required to follow Title VI of the Civil Rights Act of 1964 banning discrimination on the basis of race, the complaint states, even if the discrimination advances “a benign ‘intention’ or ‘motivation.’”
“Thus, regardless of UNL’s reasons for creating, sponsoring and promoting the BPMR, it violated Title VI by doing so,” the complaint states. “And, because UNL is a public institution, its creation, sponsorship and promotion of the BPMR also violates the Equal Protection clause of the Fourteenth Amendment.”
The complaint also refers to the Students for Fair Admissions case decided in June by the Supreme Court, which found that racial categories were often overly broad and did not further the educational goals of an institution.
The Equal Protection Project asks the Office of Civil Rights to “investigate the blatantly discriminatory” program and implement penalties, including “imposing fines, initiating administrative proceedings to suspend, terminate, or refuse to grant or continue federal financial assistance.”
Jacobson also said the NU system should “appoint a special investigator” to look for other programs that provide preferential treatment on the basis of race.
UNL did not immediately respond to a request for comment.
The Lincoln Journal Star story also noted EPP’s history of challenging discriminatory practices:
The action against UNL is the latest in a series of actions taken by the Equal Protection Project this summer against colleges and universities that offer residencies, internships, or other programs that give preference to racial minority or other underrepresented groups.
The EPP filed a civil rights complaint against the State University of New York at Buffalo’s School of Law for its Discover Law Undergraduate Scholars Program, a four-week residential program for 20 high-performing students that gives preference to students of color and first-generation students.
In early June, the organization also targeted an internship program offered by the University of Minnesota for Black and Native American students that has been in place since the 1980s, the MinnPost reported.
The University of Minnesota quickly renamed and relaunched the program, eliminating the preferences for students from minority groups, but that didn’t assuage EPP or state lawmakers who criticized the program as discriminatory.
The Equal Protection Project also filed a complaint against Missouri State University earlier this year, alleging the small business boot camp for women and people of color was discriminatory against white males.
“While the law has been clear for decades that racial discrimination in education is unlawful, after the Supreme Court’s Harvard decision there can be no doubt that universities may not even take race into account to advance diversity objectives,” Cornell Law professor and founder of EqualProtect.org William A. Jacobson said in a statement. “Yet that is exactly what the U. Nebraska-Lincoln program does, it reserves a spot on program teams for black students in order to foster diversity, creating a disadvantage and lessening of opportunities for others.”
Jacobson said the way the program makes students “complicit” in discrimination is “offensive and troubling.”
“The racial discrimination of the U. Nebraska-Lincoln program is particularly pernicious because it requires that student teams organize themselves around race, with one team member required to be black,” he said. “This puts students in the position of choosing among their peers focused on race.”
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