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 various ways, but the overarching theme is to exclude or diminish some people and promote others, based on race, color, or ethnicity.
The latest iteration is a tuition waiver program at Bismarck State College in North Dakota, which is open only to non-whites. EPP has filed a Civil Rights Complaint with the Office of Civil Rights of the U.S. Department of Education. A full copy is at the bottom of this post, and reads in part:
We bring this civil rights complaint against Bismarck State College (“BSC”), a public institution, for its Cultural Diversity Waiver (“CDW”) program – a racially discriminatory program that reduces tuition for specific racial and ethnic groups for the purpose of “encourage[ing] enrollment of a culturally diverse student body for the benefit of all students and the academic community.”1 To be eligible for the tuition reduction, students must be “African American/Black, Alaska Natives, Asian American, Hispanic, Native American, Native Hawaiian, Latino/a/x, Multiracial, [or] Pacific Islander.”2 The CDW program is only available to non-white applicants.BSC’s ongoing sponsorship and active promotion of a tuition reduction program for which eligibility depends on ethnicity and race 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 Complaint also provides a detailed analysis of the program:
On August 1, 2021, the North Dakota State Board of Higher Education promulgated Policy 820(1), which provides that institutions of higher education in the state are “encouraged” to “provide for … [a] waiver of tuition and fees …. to promote enrollment of a culturally diverse student body.”3 [image omitted]Based on this authority, BSC created, implemented and promoted a program called the Cultural Diversity Waiver (“CDW”), pursuant to which BSC reduces eligible undergraduate students’ tuition by $1,250 per semester.For Academic Year 2022-2023, the CDW program was available to students who were “members of federal recognized American Indian Tribes,” “Alaska Natives,” or “[m]embers of a culturally diverse group who are defined as historically underrepresented,” with that category defined as “African American, Asian American, American Indian or Hispanic. [image omitted]For Academic Year 2023-2024, the CDW program is available only to undergraduate students who identify as “African American/Black, Alaska Natives, Asian American, Hispanic, Native American, Native Hawaiian, Latino/a/x, Multiracial, and Pacific Islander.”5 A screen capture from an informational page about the CDW program on BSC’s website is reproduced below: [image omitted]The application for the CDW requires students to identify their race and ethnicity from a pre-populated list, and white or Caucasian are not available options.6 A screenshot of the application’s dropdown menu of qualifying races/ethnicities is depicted below. [image omitted]Students who are selected for the CDW program receive a tuition reduction of $1,250 per semester for up to eight semesters, for a total of $10,000.7 Applications for the fall semester were due on August 1, 2023, and applicants for the spring semester must apply by January 1, 2024.8 [image omitted]
The Complaint concludes:
The Office for Civil Rights has the power and obligation to investigate BSC’s role in creating, sponsoring, supporting and promoting the CDW program – and to discern whether BSC is engaging in such discrimination in its other activities – and to impose whatever remedial relief is necessary to hold the school accountable for its unlawful conduct. This includes, if necessary, imposing fines, initiating administrative proceedings to suspend or terminate federal financial assistance, and referring the case to the Department of Justice for judicial proceedings to enforce the rights of the United States under federal law. After all, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Parents Involved in Cmty. Sch., 551 U.S. at 748.Accordingly, we respectfully ask that the Department of Education’s Office for Civil Rights impose remedial relief as the law permits for the benefit of those who have been illegally excluded from the CDW program based on discriminatory criteria, and that it ensure that all ongoing and future programming through BSC comports with the Constitution and federal civil rights laws.
The Complaint has already attracted a fair amount of local media coverage. The Bismarck Tribune writes;
The Legal Insurrection Group argues that since “white or Caucasian are not available options,” the waiver is discriminatory and violates federal law.BSC in a statement to the Tribune said the Cultural Diversity Waiver is in compliance with North Dakota State Board of Higher Education’s Policy 820, which encourages schools to promote culturally diverse student bodies through waivers for tuition and fees. The North Dakota University System did not immediately respond to a Tribune request for comment.The Legal Insurrection Group has filed numerous lawsuits against universities in other states challenging similar policies. The initiative is in part a response to a federal Supreme Court ruling this summer which outlawed race as a consideration in college admissions. Some conservative groups believe the same legal reasoning should be applied to other programs.Advocates for race-conscious programs say policies like BSC’s make higher education more affordable for members of minority populations who tend to hold less wealth than white Americans. A Federal Reserve survey of household wealth shows that the median net worth for white families in the U.S. was $184,000 in 2019, while the median net worth for Black families was $23,000.
The authorizing statute does not require racial discrimination. It simply permits diversity efforts. The North Dakota system made this point in a statement to KX News:
Bismarck State College offers at least a dozen tuition waivers and reductions based on a variety of conditions such as employment, academic achievement, law enforcement, senior citizen, and more.BSC’s Cultural Diversity Waiver is based on the State Board of Higher Education’s Policy 820, which governs waivers and tuition assistance.Section 820.1, approved on August 1, 2021, grants schools the ability to develop tuitions and waivers to create a culturally diverse student body.“Institutions are encouraged to use this authority to promote enrollment of a culturally diverse student body, including members of Indian tribes and economically disadvantaged students, for the benefit of all students and the academic community, to promote enrollment of graduate students and research, and for other purposes consistent with an institution’s mission,” the SBHE policy reads in part.Other universities around the state also offer Cultural Diversity Waivers similar to BSC’s.The Equal Protection Project, however, points to this year’s U.S. Supreme Court decision in Students for Fair Admissions Inc. v. President & Fellows of Harv. Coll., arguing, “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.’” ….
One official at the North Dakota University System (NDUS), of which the State Board of Higher Education is a part, told KX News, “Each NDUS institution develops and administers its tuition and fee waiver programs to meet their needs using locally approved procedures,” and then restated Policy 820.1, focusing on efforts to promote enrollment of a culturally diverse student body.
The Daily Caller News Foundation also reported on the EPP Complaint:
“We are troubled that with all Bismarck State’s nondiscrimination rules, no administrator thought to ask why the university was continuing an obviously discriminatory program and to put an end to it,” EPP founder William A. Jacobson said in a statement provided to the Daily Caller News Foundation. “What is the campus culture that allows such discrimination to continue in the open?” ….“Bismarck State needs to extend the deadline for the upcoming tuition waiver program cycle so that students who did not apply because of the racial and ethnic barriers have a chance to apply,” Jacobson said. “Bismarck State also needs to retroactively apply tuition waivers to students who were excluded based on these racial and ethnic barriers.”
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