Colleges scrutinize race-based financial aid after affirmative action ruling

After the Supreme Court rejected race-based affirmative action in college admissions, some state and university leaders are already asking what that means for scholarships and financial aid aimed at students from underrepresented groups–and some scholars are predicting more legal skirmishes over race and higher education.

Some state leaders moved quickly to make clear that they intend to interpret the ruling broadly.

In Missouri, Attorney General Andrew Bailey (R) announced immediately after the high court’s rulings that he had “put dozens of universities and municipalities across the state on notice to immediately cease any use of illegal, discriminatory race-based policies.”

He said relevant institutions must stop using race-based standards to make decisions about things such as “admissions, scholarships, programs, and employment.” Other policies, such as making standardized testing optional, to the extent they are intended “to evade the clear constitutional prohibition on disfavoring applicants because of race,” are also unlawful, he wrote.

Bailey did not immediately respond to a request for comment.

The University of Missouri System posted a public statement saying they would discontinue the “small number of our programs and scholarships” that used race and ethnicity as a factor for admissions and scholarships to abide by the Supreme Court ruling. The state’s universities will honor aid already promised to students, they noted.

Uriah L. Orland, a spokesman for the university system, said Friday the change would affect a little over 5% of institutional aid across the four campuses. The total institutional aid for this past academic year was more than $301 million, and the portion that considered race or ethnicity as a factor was a little over $16 million.

In Wisconsin, Robin Vos, the Republican speaker of the state assembly, promised to introduce legislation to “correct discriminatory laws on the books.”

Chancellor Jennifer L. Mnookin at the University of Wisconsin at Madison, the state’s flagship campus, said in a statement after the ruling that the school had increased its underrepresented undergraduate student population by about 50% over the last five years, but still lagged many of their peers. They would need to change admissions policies to comply with the law. “At the same time, I want to reiterate that our commitment to the value of diversity within our community, including racial diversity, remains a bedrock value of the institution.”

Kelly Tyrrell, a spokeswoman for UW-Madison, wrote in an email Friday that the university is assessing the implications of the recent Supreme Court ruling and expecting the guidance the federal government intends to provide in coming weeks. “We will also remain engaged with the state legislature,” she said.

Elsewhere, Eli Capilouto, president of the University of Kentucky, wrote in a statement to campus last week of its commitment to inclusivity and diversity, but also noted that “based on our initial understanding, it appears that the Court has restricted the consideration of race with respect to admissions and scholarships.”

Jay Blanton, a spokesman for the university, said Friday that Capilouto’s statement was based on an initial review of the decision. “We are in the process of analyzing the decision further,” he wrote in an email. “At this point, we have not made any decisions or changes with respect to policies and programs, such as scholarships.”

The University of Kentucky does not offer any scholarships based solely on race, but he said there are a number of scholarships that are offered in which race is one factor among many considered in awards.

Admissions and financial aid, recruitment and retention and support of students, are so intertwined at colleges that it’s natural that people are asking questions after the Supreme Court ruling, said Nicholas Hillman, a professor in the School of Education at UW-Madison.

Karen McCarthy, vice president of public policy and federal relations at the National Association of Student Financial Aid Administrators, said school officials are asking question such as, “‘What are the gray areas? How do we advance diversity and equity considerations but still be compliant with this decision and the law?'” Her association has been encouraging institutions not to rush to judgment.

But some legal scholars said the implication for financial aid, even though the cases were focused on admissions, is clear.

“Race-based scholarships are not going to be allowed,” said Erwin Chemerinsky, dean of the University of California at Berkeley’s law school. “In states that have eliminated affirmative action already, they have also eliminated race-based scholarships.”

At Berkeley, scholarships can be given based on financial need or merit but there are no race-based scholarships, he said, in keeping with the state’s ban on affirmative action.

A private donor or foundation – one that doesn’t receive federal funding and is not part of the government – could create scholarships to benefit students based on race, he said. But the university couldn’t administer that fund.

“The majority opinion stressed that race can’t be used as a factor in admissions decisions,” Chemerinsky said. “I think that would also lead to the conclusion it can be used in financial-aid decisions, either.”

David Bernstein, a professor at George Mason University’s law school, also said he believes the court’s rulings will apply to financial aid and scholarships.

He said some schools had scholarships that were already dubious under previous Supreme Court rulings, but that hadn’t faced legal challenges. “Now there is an emerging infrastructure to file lawsuits,” he said. “I think that will affect giving out scholarships limited to minorities, or even scholarships where having minority status is preferred.”