Scholarships Discriminating Against Asians and Whites At U. Colorado Challenged By Equal Protection Project
CU-Denver and CU-Boulder’s “voluntary and ongoing participation in and active promotion of the McNair Scholarship program, which awards funding, research and scholarship opportunities to students based on their 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 ….”
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. EPP now has filed almost 20 civil rights complaints, leading numerous institutions to alter or drop their discriminatory practices.
The latest civil rights complaints involve the University of Colorado at Denver and Boulder. The complaints involve a similar scholarship program that the schools voluntarily participate in, and that discriminate against white and asian students. From the Denver Complaint:
The Ronald E. McNair Postbaccalaureate Achievement Program (“McNair Scholars Program”) is one of eight federal programs, known as TRIO programs, that were “designed to identify and provide services for individuals from disadvantaged backgrounds.”1 Each TRIO program is “targeted to serve and assist low-income individuals, first-generation college students, and individuals with disabilities to progress through the academic pipeline from middle school to postbaccalaureate programs.”2 The U.S. Department of Education provides grants for these programs to “institutions of higher education, public and private agencies and organizations … with experience in serving disadvantaged youth and secondary schools,” which then “plan, develop and carry out the services for student.”3
The McNair Scholarship Program, which was authorized by the 1986 amendments to the Higher Education Act of 1965, see 20 U.S.C.§ 1070a-15, “awards grants to 4-year postsecondary institutions to provide services to students who are low-income and first-generation (i.e., lowincome students where neither parent has received a bachelor’s degree), as well as students from groups underrepresented in graduate education.”4 [image omitted]
The goal of the program “is to increase the attainment of Ph.D. degrees by students from underrepresented segments of society.”5 Under this program, which is available at 187 undergraduate institutions across the United States and Puerto Rico,6 federal funds are awarded to institutions of higher education to prepare undergraduate students from “disadvantaged backgrounds” for doctoral studies “through involvement in research and other scholarly activities.”7 These funds are used to provide McNair Scholars “with research opportunities, faculty mentoring and seminars,” and cover such things as paid summer research internships, graduate school visits, fee waivers for graduate school application fees and funding for travel to academic conferences.8 For example, at CU Denver, each McNair Scholar participates in a summer research internship for which they receive a stipend to assist with living expenses.9 [image omitted]
Although the statute provides that groups that are underrepresented in graduate education “includ[e]” “Alaska Natives,” “Native Hawaiians” and “Native American Pacific Islanders,” see 20 U.S.C. § 1070a-15(d)(2)(A-C), federal regulations have expanded the definition to also include “Black (non-Hispanic), Hispanic [and] American Indian” individuals. See 34 C.F.R. § 647.7(b) (“The following ethnic and racial groups are considered underrepresented in graduate education: Black (non-Hispanic), Hispanic, American Indian, Alaskan Native … Native Hawaiians … and Native American Pacific Islanders[.]”).11
CU Denver’s voluntary and ongoing participation in and active promotion of the McNair Scholarship program, which awards funding, research and scholarship opportunities to students based on their 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 CU Denver’s voluntary participation in the blatantly discriminatory McNair Scholarship program and the circumstances under which it was 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 Boulder Complaint is substantially similar.
It makes no difference, and is no defense, that this is a federal program:
11 Insofar as this federal regulation explicitly limits “groups underrepresented in graduate education” to certain enumerated races and ethnicities, the regulation is unlawful. See, e.g., Faust v. Vilsack, 519 F. Supp. 3d 470 (E.D. Wis. 2021) (federal loan forgiveness program for black farmers violated equal protection). OCR need not resolve that issue, however, because CU Boulder’s participation in the McNair Scholars program has always been entirely voluntary. By electing to participate in that program, CU Boulder has affirmatively chosen to violate the Fourteenth Amendment and antidiscrimination laws.
The filings have received substantial attention in the Colorado media market.
ABC 7 News in Denver interviewed me (while I was at an airport holding my laptop, hence the shaky video quality):
An anti-affirmative action group has filed federal complaints against CU Boulder and CU Denver alleging its distribution of federal scholarships are race-based and discriminatory.
Both schools participate in the federal federal Ronald E. McNair Postbaccalaureate Achievement Program, also known as the McNair Scholars Program. The Equal Protection Project claims white and Asian students face additional hurdles when being considered for the scholarships.
“We have filed close to 20 similar complaints for other universities,” said attorney William Jacobson, president and founder of the Equal Protection Project. “Our goal is to stop these bad practices.” ….
“What they’ve done is they have created a hurdle that some students have to jump over, but others don’t based upon their race or ethnicity,” said Jacobson. “And that’s the problem with those scholarships.” ….
Jacobson said multiple organizations that have faced similar complaints from the Equal Protection Project have altered or dropped their programs in response.
Colorado-based civil rights attorney Terrance Carroll said fighting a complaint could escalate to a lawsuit and become costly and time-consuming for universities.
“We’ll have administrators who will become risk averse,” he said. “They don’t want to come to court, and so they look really long and hard at whether we should have programs like this at all. And sadly, unfortunately, I think many colleges and universities will likely back away from these types of programs.”
The Boulder Daily Camera newspaper also covered the story:
William Jacobson, president and founder of the EPP, said the Supreme Court case affirms the scholarship program’s unlawfulness when it ruled that student body diversity is not an interest that justifies racial discrimination.
“I’m assuming Boulder and other schools do this because they want a more diverse environment, whether you think that’s good or bad doesn’t matter, we don’t need to reach that judgment,” Jacobson said. “Assuming it’s a good thing, you still can’t discriminate on the basis of race in order to achieve that diversity. You need to find a different way.”
The EPP challenges the legality of programs in higher education — including scholarships, grants and tuition reductions — that have a goal of increasing racial diversity and exclude certain races. The EPP is part of the Legal Insurrection Foundation, an organization that has a conservative law and politics blog and a critical race theory website.
Fox 31 in Denver also interviewed me (from the same airport, but I didn’t have to hold my laptop, I was able to use a Southwest gate desk):
A group based out of Rhode Island is bringing a legal complaint against the University of Colorado in Boulder and Denver, claiming the universities violated people’s civil rights by participating in a federal program for students from underrepresented groups.
“We just started in February of this year, and we filed about 20 complaints wherever we see programs that, by their terms and conditions, discriminate on the basis of race,” William Jacobson said.
Jacobson is the founder of the Equal Protection Project, a project within the Legal Insurrection Foundation based out of Rhode Island. The group brought civil rights complaints against each of the schools.
“If a student is Black, Hispanic, Native American in one or two other categories, that student is automatically eligible to apply. That doesn’t mean they’ll get the scholarship, but they’re eligible. But if a student is not one of those categories, the student has to show some sort of hardship or factor that should entitle them to apply. So what you have is you have different standards depending on the race and ethnicity of the student, and we believe that that’s unlawful,” Jacobson said….
“I don’t remember how these (schools) came in specifically, but it’s possible that these came in through a tip,” Jacobson said. “The fact that there are other schools doing it, doesn’t in a sense justify it. And so yes, there are many schools that participate in this. The fact that we didn’t bring complaints against all of them at one time doesn’t mean that we won’t bring them in the future.”
The complaints notably come after the U.S. Supreme Court ruled to end affirmative action in colleges earlier this summer. The group claims its complaints are not a result of that decision.
“I’d say the Supreme Court decision solidified the law on our behalf, but it was not the motivating decision for us to bring these sort of claims,” Jacobson said.
A CU Boulder spokesperson responded in a statement: “The University of Colorado Boulder just became aware of the complaint filed by the Equal Protection Project against the university to the Department of Education’s Office for Civil Rights (OCR). Our campus strives to comply with all federal requirements related to the awarding of financial aid, is evaluating this complaint and will respond to any inquiry we might receive from OCR.”
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