“You can endow whatever scholarship you want, except you can’t endow a scholarship that discriminates on the basis of race”
My appearance on Chicago’s Morning Answer regarding the Equal Protection Project’s challenge to racially discriminatory scholarships: “The sheer number and volume indicates to us, at least, that there is a serious problem at Western Illinois University because in all the dozens of these we filed, we’ve never found more than one or two at a university, and we found 16 here.”
I appeared this morning on Chicago’s Morning Answer show with Dan Proft and Amy Jacobson (no relation). This is one of my favorite shows on which to appear, and I’ve been on many times before.
The topics covered the various Trump trials and legal problems and the Sixteen Discriminatory Scholarships at Western Illinois U. Challenged By Equal Protection Project.
You can watch the full video here. I’ve excerpted below the portion that pertains to the Western Illinois U. scholarships.
Partial Transcript (Auto-Generated, May Contain Transcription Error)
Amy Jacobson:
So Professor Jacobson, let’s talk about these discriminatory scholarships at Western Illinois University. What’s going on there?
WAJ:
At Equal Protection Project, EqualProtect.org, we have brought dozens of claims against colleges and universities who have discriminatory programs. And usually they’re a one-off. We find one, or we get a tip, more likely, about one at a particular university. Well, we did get a tip about Southern, I’m sorry, Western Illinois University. And we started to look into it and we found 16 of them.
We found 16 scholarships there that discriminate on the basis of race, discriminate in favor of, they use various terms, sometimes they say black students, sometimes they say minority students, the different terms, but basically they discriminate on the basis of race. Some of them also discriminate on the basis of sex. I think there’s one that’s only open to black females. So we have filed a complaint with the US Department of Education over these openly discriminatory programs.
The sheer number and volume indicates to us, at least, that there is a serious problem at Western Illinois University because in all the dozens of these we filed, we’ve never found more than one or two at a university, and we found 16 here.
Proft:
So, some people may look at this story and say, well, wait a second. Like, what if I’m a successful black entrepreneur and I want to endow a scholarship in my name or my family’s name at Western Illinois University, specifically for black students to have the opportunities that I had, then what, how would that be? Well, what’s wrong with that? How would that run afoul of the law?
WAJ:
Sure. Well, this is a public university which is administering the scholarship. It doesn’t matter where the money came from. It’s promoted on their website. It’s promoted to their students. It’s administered by the school and it is open only to students of the university.
That being the case, there’s this thing in the 14th amendment called the Equal protection Clause, which is that every person is entitled to equal protection of the laws. We had a Supreme Court decision last summer about that in the context of admissions to a university. So it’s against the constitution. A public university cannot do that. It doesn’t matter where the money came. It also violates civil rights laws. It violates Illinois law.
So, you can have whatever intention you want. You can endow whatever scholarship you want, except you can’t endow a scholarship that discriminates on the basis of race or on the basis of sex.
And I think one of them even discriminates on the basis of sexual preference and gender identity because it’s not open to students who are not L-G-B-T-Q. So, this is a problem there. I don’t know what’s going on at Western Illinois, maybe they just lost sight of things. Maybe this accumulated over time, but they need to get a handle of it on it, and they need to comply with the law.
Proft:
Right. The key there is that they’re a government institution. So, I mean, so this is why something like the United Negro College Fund or other private scholarship organizations are under, you know, a different legal regime than is a government institution.
WAJ:
That’s right. And there is a case pending out there, it’s up in the 11th Circuit Court of Appeals, about whether even these private scholarships can discriminate on the basis of race, not based on the US Constitution, but there’s actually a civil rights law, post civil war, that prohibits discrimination in contracting. But that’s a different legal issue. So whether a private foundation can do this is an open legal question at this moment in time, but there’s no open legal question that a public university cannot do this.
Proft:
He is Professor William Jacobson. He’s clinical professor of law and director of the Securities Law Clinic at Cornell. He’s also the founder of legalinsurrection.com and President of the Legal Insurrection Foundation, as well as the Equal Protection Project. And again, that website, professor is?
WAJ:
Equalprotect.org,
Proft:
Equalprotect.org. Professor Jacobson, thanks as always for joining us. Appreciate it.
WAJ:
Great. Thank you.
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Comments
Professor Jacobson is fighting the good fight. I hope the next GOP President awards him the Presidential Medal of Freedom, alongside Dr. Thomas Sowell (upon whom President Trump should have conferred the award, during his term).
And that case should lose. If it wins, tyranny follows. A scholarship is not a commercial transaction; it’s a gift, a donation, and we each have the inherent, unalienable right to give our money to whomever we like, on any basis we like. Saying we can’t is saying that it’s not our money, it’s the government’s money, and the end of that road is that we can’t socialize with whomever we like, invite whomever we like into our homes, or even date or marry whomever we like.
Even commercial sex workers have the right to discriminate! Would someone try using that law against a prostitute who only caters to members of the same race, or of the opposite sex (or vice versa), or in a specific age range?!
Then give it to them directly; sorting out who you “like” by race in a public application using race as the sole determinant is just plain, palpably and demonstrably racist. Part of the systemic racism that Democrats are responsible for.
Apply the test: offer the same scholarship for whites, and see what the (predictable) reaction will be. If there is an outcry, what is being done is racist.
The defendant in that case is giving the scholarship directly to those applicants it selects, based on race, as is its inherent right.
And yes, of course the same would be legal for whites. Nobody disputes that. Who cares if there would be an outcry? Outcries are legally irrelevant. They have no power. This isn’t about an outcry, it’s an attempt to use the state’s power to forcibly impose the plaintiffs’ anti-racist feelings on the defendant, and on all people who dare to choose what they do with their own property in a completely non-commercial setting.
Always dislike saying I agree with Milhouse, but I agree with Milhouse on this for sure.
Read the whole thing: ” Well, this is a public university which is administering the scholarship.”
WAJ agrees that the United Negro College Fund could do this on its own, but not WIU.
And prostitutes are independent contrators, a category that can discriminate at will.
Why don’t you read it. The case in the 11th circuit is about a private scholarship, exactly like the UNCF.
And prostitutes being contractors means they are directly covered by the law in question, against discrimination in contracting. If the private entity that is handing out scholarships is not allowed to discriminate, then a fortiori prostitutes are not allowed either.
Now do Christian bakeries.
Bakeries are public accommodations, and so subject to the anti-discrimination laws, something that the bakeries themselves do not deny.
The bakeries are not claiming the right to discriminate, they’re correctly pointing out that they’re not discriminating, because they’re perfectly willing to do business with gay and straight people on the exact same basis. They will not create a cake celebrating same-sex marriage, regardless of who the client is. Likewise they will create a cake celebrating just about anything else, again regardless of who the client is.
Here we are talking about open discrimination on the basis of race. In the case of a public university there’s no question that it’s illegal. But the 11th circuit case is about a private entity, which is not engaged in contracting at all, but in making a private donation. And if the courts were to find that that is a contract and subject to the anti-discrimination law, that would be really scary, because there’s no end to that. Marriage is also a contract, and so is prostitution.
Actually the baker in question in the CO case will also NOT make halloween cakes either, same reason, religious belief.
And again, he won’t make them for anyone, Christian or pagan, so once again he isn’t discriminating against anyone.
Milhouse: Even commercial sex workers have the right to discriminate!
Title II doesn’t apply to one-on-one interactions, but if prostitutes are attached to a hotel or brothel, then the business may be covered by anti-discrimination law. However, customers can certainly discriminate.
BierceAmbrose: Now do Christian bakeries.
As a public accommodations, then they can’t discriminate, such as by refusing to serve mixed race couples. The recent brouhaha is whether or not baking is an artistic expression, which is exempt from anti-discrimination law.
The case in the 11th circuit isn’t under Title 2 (42 USC §2000), it’s under 42 USC §1981, discrimination in contracting.
And they aren’t. Why would they?
More to the point, nor are they refusing to serve same sex couples. They are completely willing to sell such couples exactly the same products that they’re willing to sell to anyone else. And they refuse to sell the products at issue to anyone.
The main point is that these scholarships are administered by a public institution. If someone wants to contribute their money to a specific group, then they need to find a different way to do it. TID.
Ty Professor, great interview.
These are. The one in the 11th circuit case is not.
Similar problem applies to consideration in CA and other states of reparations based on being Black. Racial preference by any government entity. are constitutionally barred. SCOTUS spoke to such preferences in the recent college admission case and made clear racial preferences violate the constitution’s equal protection clause . As this was a constitutionally based SCOTUS decision, it cannot be overridden by any new statute law.
There is a slippery slope here, and a deliberate effort to redefine “equal protection” and “fundamental fairness.” People like Kimberle Crenshaw believe that the law allows the fashioning of discriminatory remedies to address any inequity in society. Even without the finding of a past discrimination to remedy.
Once you accept that assumption, then it is a short step to accepting broad based and very expensive “reparation payments” for remediation of past poorly-defined injustices.