In Print: Volume 86: Number 4
Disappearing Without A Case—The Constitutionality Of Race-Conscious Scholarships In Higher Education
By Alexander S. Elson
86 Wash. U. L. Rev. 975 (2009)
(PDF)
While the story of race-conscious scholarships has received attention in the higher education and civil rights communities, it has gone largely unnoticed by the general public. This is due in large part to the informal, behind-the-scenes manner in which such scholarships have been challenged. Nearly all of the evidence documenting the demise of race-conscious scholarships exists in complaints and letters sent between the legal organizations challenging race conscious scholarships (such as CEO and ACRI), the colleges and universities that implement the scholarships, and OCR, the institution responsible for enforcing Title VI. As the courts have not addressed the constitutionality of race-conscious scholarships in the years since Grutter v. Bollinger, colleges and universities have become extremely vulnerable to these external pressures calling for the scholarships’ elimination.
The purposes of this Note are twofold. First, it tells the story of race-conscious scholarships. Part II begins with a discussion of the historical and contemporary justifications for race-conscious scholarships, and it concludes with a detailed description of the behind-the-scenes letter writing campaign that has led to their demise.
Second, this Note argues that race-conscious scholarships are constitutional. Part III sets forth the legal framework. In its 2003 Grutter decision, the Supreme Court held that race-conscious university admissions policies designed to promote student body diversity9 can withstand strict scrutiny under both the Equal Protection Clause of the Fourteenth Amendment and Title VI.
While Grutter resolved nearly twenty-five years of doubt with respect to the constitutionality of race-conscious admissions programs, it left programs outside of the admissions context, such as race-conscious scholarships, outreach and recruitment, and support and retention programs, in a constitutional haze. Part III analogizes Grutter in the context of race-conscious scholarships and concludes by describing the importance of that context in Equal Protection analysis.
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