Congress has created programs that dole out money to colleges that admit blacks and Hispanics at or above a fixed percentage.

These programs are unconstitutional. Congress should defund and repeal them.

Decades ago, Congress created numerous programs that confer benefits on what are called Minority Serving Institutions (“MSIs”). Cumulatively, these programs shovel about a billion dollars annually to hundreds of colleges and universities that, by virtue of student bodies that reach certain levels of minority representation among students, have been designated as MSIs. Schools that are not so designated are prevented from competing for these funds.

These MSI programs are unconstitutional. Congress should defund and repeal them.

The case for doing so is set forth in this letter from Gail Heriot, Peter Kirsanow, and Dan Morenoff to Lindsey Graham and Bill Cassidy, chairmen of the Senate Budget Committee and the Senate Committee on Health, Education, Labor & Pensions, respectively. Heriot, Kirsanow, and Morenoff lead the American Civil Rights Project (ACR). (I serve on the ACR board.)

The letter begins by explaining how the MSI programs operate:

A college or university can qualify as an HSI [Hispanic Serving Institution] only if it can certify to the U.S. Department of Education that at least 25% of its students are Hispanic. To qualify as a Predominantly Black Institution (“PBI”), at least 40% of an institution’s students must be African American or Black. . . .

In theory, some of the MSI programs require that some portion of the required demographic be “needy,” but even in those MSI programs, the requirement can be—and seemingly always is waived. Meanwhile, schools with a large number of needy students that don’t happen to qualify as MSIs are excluded from participating in the MSI treasure trove.

The authors then highlight the blatant unconstitutionality of the MSI programs:

Federal money is being doled out to colleges and universities based on the race or ethnicity of their students. If you have any doubt about whether this is racially or ethnically discriminatory, all you need to do is “flip it.” If Congress had created a spending program that gave money only to colleges and universities whose student populations were at least 25 percent White, no one would claim that this was anything but racial discrimination. It’s unthinkable that a court would fail to see these programs for what they are--rank discrimination.

Under longstanding constitutional doctrine, a racially or ethnically discriminatory law or program must be strictly scrutinized. To withstand that scrutiny, it must be narrowly tailored to serve a compelling governmental interest. It is hard to imagine how any MSI program could satisfy such scrutiny.

The authors distinguish the case of MSIs from past cases in which the Supreme Court Court has allowed (or even flirted with) race-based discrimination. For example, the discrimination here can’t be justified on the now-discredited basis of “‘diversity” because this law could funnel money to schools that are the opposite of diverse — indeed to schools that are 100 percent Hispanic or black.

The authors are careful to distinguish MSIs from HBCUs (historically black colleges and universities):

It is worth noting how different the MSI programs are from the older HBCU program. The MSI programs qualify and disqualify schools in the here and now based on the racial-mix of their current enrollment. The HBCU program qualifies schools solely based on the “H” for “Historically.”

It provides funding to schools that existed prior to the fall of Jim Crow that served Black Americans during segregation. Congress continued to fund HBCUs after the passage of the Civil Rights Act of 1964 on the premise that these specific schools suffered from massive underinvestment prior to Jim Crow’s fall and after. Schools’ eligibility for HBCU funding is thus premised on the theory that continued subsidies are justified as a remedy for past discrimination—including discrimination by the federal government—against the recipient institutions.

Moreover, there is no reason to view HBCU funding as encouraging race discrimination in the modern era. Unlike MSIs, HBCUs are not required to maintain any particular racial mix among their students, and a few, like Bluefield State University in West Virginia have since acquired enrolled majorities of other races. In addition, research continually shows that HBCUs do not suffer from the same racial gaps in academic credentials that other selective institutions often do.

As that last paragraph notes, MSI programs aren’t just discriminatory on their own terms. They also encourage colleges and universities to discriminate.

Only a naïf could believe that schools won’t—and don’t—fall all over themselves to gain and retain MSI status. That’s where the money is. Institutions like Marquette University, Portland State University, the University of California at San Diego, and the University of San Diego are currently focused like a laser on achieving MSI status.

One very easy and quick way to achieve that goal is by lowering admissions standards for students of the targeted race specifically. In recent years, another has been to drop the use of standardized tests for all students, knowing that this will increase the number of targeted minority students who qualify for admissions, even if it will also increase the number of students admitted who are unprepared to compete academically. Both methods are being employed.

But it is not just the colleges and universities that are trying to achieve MSI status for the first time that are motivated to discriminate. Every year, each of the hundreds of existing MSIs must re-certify that it has maintained its prescribed racial balance, so it is important not to slip below that threshold. The incentive these programs create to discriminate is continuous.

Some schools have been honest about their motivation as they inch toward the 25-percent HSI-qualifying goal.

In 2019, Florida Gulf Coast University noted in an official document entitled the “Florida Educational Equity Report” that it “continues to see an increase in enrollment of Hispanic students currently accounting for approximately 20 percent of enrollment.” “Once the University reaches 25 percent Hispanic enrollment, we will be eligible to apply for the Hispanic Serving Institution designation (HSI) which would open up the door to additional federal funding.” No one should be surprised to learn that by 2021, FGCU was up to 24 percent Hispanic enrollment.

At some point, courts are likely to rule that MSIs are unconstitutional. But Congress shouldn’t wait for the courts to act. It should defund these programs. This would allow for the streamlined reconciliation process used for appropriations issues — in other words with no filibuster possible. In addition, Congress should repeal the programs' authorization outright, thereby preventing a future Congress from restoring their funding.

Another advantage of not waiting for the courts is that if Congress wishes to, it can replace the MSI programs with increased funding for worthwhile and lawful programs. Congress could, for example, find ways to distribute the money to institutions that educate large numbers of Pell grant recipients. A court, by contrast, can only prohibit MSIs.

In conjunction with the Manhattan Institute, the ACR Project recently prepared model legislation offering a variety of such options. They range from shifting funds into the underfunded Pell Grant program, to shifting funds to support the needs of English-language learners, to shifting funds to block-grants to the states (under either of a pair of allocation formulas), to a blending of these options.

Congress should seriously consider these options. At a minimum, it should defund and repeal the unconstitutional MSI programs.