Legal Challenges to Race-Based Scholarships in Wisconsin

Since the early 2000s, the validity of the use of race in many scholarship applications has been questioned. States have been left rolling in a deep pool of uncertainty regarding what to do. Race-based scholarship programs have provided invaluable aid to minority students seeking to obtain a higher education. Without these programs, many qualified minority students would be unable to attend higher-learning institutions. As a result, the institution would be denied a diverse learning community and many valuable students would have to prematurely abandon their education goals.

Each scholarship serves its own purpose. There are scholarships that are offered to people of certain religious background. Others focus on providing economic aid to students who are pursuing certain degrees – such as engineering, medicine, or law. The purpose of race-based grants or scholarships is to increase the number of diverse students for the benefit of each institution. This purpose has been challenged by complaints alleging that race-based scholarships only further race discrimination.

The Supreme Court has established precedent regarding this debate. The Court held that when applying rights found in the Equal Protection Clause of the Fourteenth Amendment regarding this matter, a society is a collection of “knowing individuals” who are seen as autonomous and independent, and thus should be treated as individuals without regard to race. The Court further stated that when a program acknowledges individuals as being part of a group or classification, the program should be strictly scrutinized. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003).

As one commentator has noted, “[t]o pass strict scrutiny review, a race-conscious program must first have a compelling state interest. Diversity is the compelling interest most often used to defend affirmative action.” Andrija Samardzich, Note, Protecting Race-Exclusive Scholarships from Extinction with an Alternative Compelling State Interest, 81 Ind. L.J. 1121, 1124 (2006). In Grutter v. Bollinger, 539 U.S. 306 (2003), Justice O’Connor stated:

The Law School’s interest is not simply ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin.’ That would amount to outright racial balancing, which is patently unconstitutional. Rather, the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce.

Grutter, 539 U.S. at 330.

In recent months, this debate has hit close to home. In April of this year, the Wisconsin Institute for Law & Liberty (WILL) filed a lawsuit alleging that the Wisconsin Higher Educational Aid Board’s Minority Grant Program violates the Wisconsin Constitution as it discriminates against White students, African immigrants, and Asian students from countries other than Laos and Cambodia. The lawsuit seeks an order deeming the program unconstitutional and an injunction against race-based qualifications. After spending a few days researching the whereabouts of this lawsuit, I was unable to find it and I am not certain about the outcome. However, while Daniel Lannington, spokesperson for WILL, did not comment during an interview with Wisconsin Public Radio regarding the pending lawsuit, he did mention WILL’s new target: the University of Wisconsin’s Ben R. Lawton Minority Retention Grant, which lists similar eligibility criteria.

After Lannington’s statements, a spokesman for the Wisconsin University system stated that they have no plans to change the program’s eligibility requirements. We will have to wait and see what the court decides.

As a result of all the legal threats, uncertainty, and lack of consensus, smaller universities that have less economic backing have decided not to fight this battle. According to one local Corporate Alumni Engagement Officer, finding scholarship sponsors willing to change their qualification criteria has been beyond challenging. One of the challenges university scholarship administrators have been faced with has been trying to convince sponsors that their money will still be used to help minorities even when the qualification criteria does not include race. Further, she stated, administrators have had to find outside-of-the-box ways of addressing the race-based criteria some sponsors have required in order to continue their donations. One of these solutions has been interviewing possible recipients of the scholarship individually and arbitrarily to see if they qualify. This has created other problems, but for now, the administrator will continue using this approach to try to overcome the challenges.

Another solution that has been presented to overcome the race-based scholarship dilemma has been focusing instead on student’s socioeconomic status instead of race as a qualifying factor. But by doing this, in my opinion, we would only be further stereotyping and discriminating against students, not because a student being a person of color means that they are from a lower socioeconomic status. Additionally, merit is usually considered in conjunction with socioeconomic-based scholarships. If schools adopt this approach, then the entire purpose of race-based scholarships will be challenged.

What do you think about race-based scholarships? Are these scholarships an example of “formal equality” or “substantive equality”? Should schools see this debate as a “formal equality” vs. “substantive equality” debate? Should we get rid of race-based scholarships? Or should we have more? Should private institutions have different procedures than public ones?

These are some of the articles and documents I used to write this post:

Henry Redman, WILL Sues State Higher Education Board to Stop 36-Year-Old Scholarship Program Targeted at Minority Students, Wisconsin Examiner (Apr. 16, 2021).

Rich Kremer, State Minority Scholarship Program Faces Legal Challenge for Race Discrimination, Wisconsin Public Radio (Apr. 15, 2021).

Kelly Meyerhofer, Madison Residents Sue over College Financial Aid Program Limited to Certain Students of Color, Wisconsin State Journal (Apr. 16, 2021).

Andrija Samardzich, Protecting Race-Exclusive Scholarships from Extinction With an Alternative Compelling State Interest, 81 Ind. L.J. 1121 (2006).

[This post has been edited to remove a potentially confusing affiliation.]

This Post Has 3 Comments

  1. Jennah Curtin

    I think this is a critical conversation to have, it is of the likes that’s not easy or necessarily embraced in the world of education. Scholarships can be incredible vehicles to help students reach opportunities that they may not otherwise be afforded. That being said, I think it can be incredibly telling that as we can see, money talks. It’s incredibly important that students from minority communities are allowed and encouraged to seek higher education. There is an undeniable and pervasive gap in the components of being a member of our society. Race is a piece of identity born into. It is not elective and it shouldn’t be treated as if it is. I can’t help but feel that to argue to eliminate race-based scholarships is to equivocally say that all students of all races come from the exact same background with the same opportunities and resources, from parents with the same time commitments and careers spanning back generations that have provided a solid foundation. It’s just not the truth. The issues we would perpetuate in our educational system by eliminating race-based scholarships are the kinds of issues that we seek to alleviate and aid by offering them in the first place. I would be losing layers of deep connections from my friends’ experiences and knowledge if they were barred from receiving a higher education because of the inability to get the financial aid that helps bridge the gaps that exist to no fault of their own. We now are attempting to bridge that gap in the form of these kinds of scholarships, but it’s nowhere near enough to make the playing field level. That being said, it speaks volumes for the character and resilience of the minority students in our community. I stand behind race-based scholarships and their underlying effort for inclusivity.

    1. Alliyah

      I think it’s absolutely correct to question these scholarships basis and ability to discriminate against whites, but is that a white person, or is it that scholarships for education to be made available to anyone who is worthy to be there and struggling.

  2. Frank Goudy

    Obviously any scholarship based strictly upon race or sexual orientation is illegal. Any attempt to rationalize it otherwise is just that — a rationalization and an attempt to backhand SCOTUS.

    From Ballotpedia:

    In a 6-3 decision on June 23, 2003, the Supreme Court ruled that the university’s admission system was unconstitutional and violated the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and Title VI of the Civil Rights Act of 1964. The majority declared that the system of automatic distribution of points to every underrepresented minority applicant did not fit the individualized consideration requirement established in Regents of the University of California v. Bakke, nor was it a narrowly tailored consideration of race. The majority also rejected the argument that diversity cannot constitute a compelling state interest. The majority opinion was delivered by Chief Justice William Rehnquist and joined by Justices Sandra Day O’Connor, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Stephen Breyer.

    Rehnquist wrote the following in the majority opinion: “Moreover, unlike Justice Powell’s example, where the race of a ‘particular black applicant’ could be considered without being decisive, see Bakke, 438 U.S., at 317, the LSA’s automatic distribution of 20 points has the effect of making ‘the factor of race … decisive’ for virtually every minimally qualified underrepresented minority applicant.”

    However, this ruling seems to be roundly ignored as long as it discriminates against Whites and heterosexuals. Just recently billionaire Jeff Green abandoned the Mormon church and established LGBT scholarships. Indeed, I would not be surprised that if I walked into the University of Illinois (my home state) and said that I would like to set up scholarships for Hispanics or Blacks I would be welcomed. If I then changed that to Whites-only I would be rejected.

    I invite readers to check on scholarships available to non-Whites vs. Whites.

    Perhaps this whole issue will be revisited again in another SCOTUS ruling. But as of now racial politics seems to be overwhelming, and against Whites, even if they are from poorer backgrounds.

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