Western Kentucky U Race-Based Scholarships Challenged by Equal Protection Project

Western Kentucky U Race-Based Scholarships Challenged by Equal Protection Project

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 are two scholarships at Western Kentucky University (“WKU”), a public university in Bowling Green, Kentucky, which are only open to non-white students, 1) the WKU Athletics Minority Fellowship (“AMF”), an undergraduate scholarship for minority students interested in careers focusing in collegiate athletics; and 2) the WKU Distinguished Minority Fellowship (“DMF”), a scholarship that aims to help undergraduate minority students attain graduate degrees.

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:

According to WKU’s website, the AMF provides “at least four undergraduate scholarships in the 2023-24 school year for students interested in careers focusing in collegiate athletics.”1 The purpose of the scholarships are “to enhance[e] the success of students of color – excluding student-athletes on athletic scholarship – within the athletic department’s administrative areas.”2 [image]

Those who are selected into the AMF program receive a $2,000 scholarship per academic year, or $1,000 per semester.3 The deadline date for applications was July 1, 2023.4 As this is the third consecutive academic year that the AMF scholarship has been offered,5 there is every expectation that it will continue into the foreseeable future.
The centrality of race to WKU’s AMF scholarship program is apparent. One of the requirements for eligibility for the scholarship is that the applicant “identify as an underrepresented ethnic minority.”6 [image]

According to the application for the AMF scholarship, a student is only an “underrepresented ethnic minority” if he or she is “Black/African-American,” “Black/African Descent,” “Asian, Native Hawaiian [or] Pacific Islander,” “Hispanic/Latino” or “American Indian/Alaskan Native.”7 [image]

In addition to the AMF scholarship, WKU’s “Distinguished Minority Fellowship,” or DMF scholarship, discriminates on the basis of race. As reflected in the screenshot of the application website below, the DMF scholarship is intended “to help minority students attain graduate degrees by providing tuition as well as employment opportunities.”8 [image]

The DMF scholarship provides “[u]p to nine hours of resident face-to-face tuition costs for the completion of a primary graduate degree,” plus eligibility for a stipend of “no less than $15,000 per academic year in association with a graduate assistantship.”9 [image]

To be eligible for the DMF scholarship, students “must have minority status.” According to the school, that means that they must be “African American, American Indian/Alaskan Native, Native Hawaiian/Pacific Islander, two or more races or Hispanic/Latino.”10

The Complaint then addresses the law, which reads in part:

To the extent that the purpose of the AMF and DMF scholarships is to “assist[ ] individuals from minority groups in obtaining their higher education goals,”17 achieving such racial balance is an objective that the Supreme Court has “repeatedly condemned as illegitimate” and “patently unconstitutional.” Parents Involved in Cmty. Sch., 551 U.S. at 726, 730 (“Accepting racial balancing as a compelling state interest would justify the imposition of racial proportionality throughout American society, contrary to our repeated recognition that at the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class”) (cleaned up, citation omitted).

And, irrespective of whether the AMF and DMF scholarships further a compelling interest, they are not narrowly tailored. Grutter v. Bollinger, 539 U.S. 306, 334 (2003) (to be to be narrowly tailored, a race-conscious program must be based on “individualized consideration,” and race must be used in a “nonmechanical way”). Here, the racial criterion is mechanically applied. If applicants are not African American, American Indian/Alaskan Native, Native Hawaiian/Pacific Islander or Hispanic/Latino, they are automatically ineligible for the scholarships. To the extent that any individualized consideration exists, it only applies to distinguish between applicants who have first satisfied the threshold ethnic/racial litmus test….

Because WKU’s ethno-racial eligibility criteria for the AMF and DMF scholarships are presumptively invalid, and since there is no extraordinary government justification for such invidious discrimination, WKU’s use of those requirements violates state and federal civil rights statutes and constitutional equal protection guarantees.

The story has attracted substantial media coverage, which is picking up steam. The Chronicle of Higher Education has a lengthy article focusing on EPP’s leadership role in challenging race-based scholarships, Colleges Face Demands to Stop Considering Race in Student Scholarships:

Colleges are facing pressure to stop considering race as a factor when awarding scholarships — adding fuel to a larger debate over what colleges can legally do to promote diversity and equity.

The latest target is Western Kentucky University, subject of a federal complaint filed over the weekend by the Equal Protection Project, an advocacy group that seeks “fair treatment of all persons without regard to race or ethnicity,” according to its website….

William A. Jacobson, a clinical professor of law at Cornell Law School, who founded the Equal Protection Project, has challenged many other programs this year that he believes are racially discriminatory at colleges, school systems, libraries, and other public institutions.

Jacobson said his team caught wind of Western Kentucky’s scholarship programs from a tip a couple of weeks ago , and they determined that the scholarships aren’t labeled as remediation for any specific discrimination on the university’s part — a key requirement for such programs to comply with civil-rights laws, he said.

As he sees it, the Supreme Court’s admissions ruling should also apply to financial aid. He’s surprised that many colleges haven’t yet changed their scholarship programs. “We don’t see any meaningful distinction between admissions to the university and admissions to particular programs and educational opportunities,” he said….

Despite the uncertainty surrounding legal implications, some colleges, like the University of Kentucky, interpreted the admissions ruling similarly to how the Equal Protection Project did, announcing the elimination of race as a factor in student scholarship awards. The University of Missouri system and Missouri State University, at the urging of the state’s attorney general, also plan to end the consideration of race in scholarship programs.

The Equal Protection Project wants to see three outcomes from the complaint against Western Kentucky, Jacobson said: a commitment from the university to end race-conscious programs, remediation for students whom the suit says were excluded from the scholarships, and a clear statement from the U.S. Education Department that “this sort of open discrimination is unacceptable.”

Fox News also covered the story:

“WKU should know better to run education and career programs that exclude students based on race. Such blatant discrimination always has been unlawful, but any doubt was resolved by the Supreme Court recently in its affirmative action ruling,” EPP founder William A. Jacobson said. “A goal of ‘diversity’ no longer can be used as an excuse to discriminate.”

As did The Daily Caller:

The university’s website specifies that the AMF program is “dedicated to enhancing the success of students of color” within administrative areas of the athletics department, and it awards $2,000 annual scholarships to recipients who “identify as an underrepresented ethnic minority.” The DMF program, which covers nine hours of tuition costs for a graduate degree and makes students eligible for a minimum $15,000 graduate assistantship stipend, requires students to be part of a minority group, according to the flyer….

“The harm from racial educational barriers is that it racializes not just the specific program, but the entire campus,” William A. Jacobson, Cornell Law School professor and founder of EqualProtect.org, said in a statement provided to the Daily Caller News Foundation. “Sending a message to students that access to opportunities is dependent on race is damaging to the fabric of campus. Universities need to adopt the approach of EqualProtect.org, which is that there is no ‘good’ form of racism, and the remedy for racism is not more racism.” …

“WKU should know better than to run educational and career programs that exclude students based on race,” Jacobson said. “Such blatant discrimination always has been unlawful, but any doubt was resolved by the Supreme Court recently in its affirmative action ruling. A goal of ‘diversity’ no longer can be used as an excuse to discriminate.”

We learned of these discriminatory programs through a tip we received. We are continuing to act on tips and to seek out opportunities to challenge discrimination done in the name of Diversity, Equity, and Inclusion. But we need your help. We are a small organization going up against powerful and wealthy government and private institutions devoted to DEI discrimination. Donations are greatly needed and appreciated.

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