Kirwan v. Poberesky Brief Amici Curiae in Support of Petitioners

    N os. 94-1620 and 94-1621

I n  T he

gutpratt? Gkmrt of tty Inttrft
O c to b e r  T e r m , 1994

W il l ia m  E. K ir w a n  et a l,
Petitioners,v.

D a n ie l  J. P odberesky ,
___________  Respondent.

M o n ica  G reen e  et a l,
Petitioners,v.

D an iel  J. P odberesky ,
___________ Respondent.

On Petitions for Writs of Certiorari to the 
United States Court of Appeals 

for the Fourth Circuit

BRIEF OF INSTITUTIONS OF HIGHER EDUCATION 
AS AMICI CURIAE IN SUPPORT OF PETITIONERS

(Institutions Listed on Inside Cover)

John T ownsend R ich 
Shea & Gardner 
1800 Massachusetts Ave,, N.W. 
Washington, D.C. 20036-1872 
(202) 828-2185 

Counsel of Record for the 
Institutions of Higher

May 1,1995 Education as Amici Curiae

W i l s o n  - Ep e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



L IS T  OF IN S T IT U T IO N S  JO IN IN G  T H IS  B R IE F  *

UNIVERSITY OF ARKANSAS 
BAYLOR UNIVERSITY 
GEORGETOWN UNIVERSITY 
UNIVERSITY OF HAWAII 
UNIVERSITY OF ILLINOIS 
UNIVERSITY OF MICHIGAN 
UNIVERSITY OF MISSOURI 
UNIVERSITY OF MONTANA 
UNIVERSITY OF NEW MEXICO 
NORTHWESTERN UNIVERSITY 
THE OHIO STATE UNIVERSITY 
OREGON SYSTEM OF HIGHER EDUCATION 
UNIVERSITY OF RHODE ISLAND 
RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY 
UNIVERSITY OF TEXAS SYSTEM 
TEXAS A&M UNIVERSITY SYSTEM 
UNIVERSITY OF UTAH 
VALPARAISO UNIVERSITY 
WASHINGTON UNIVERSITY OF SAINT LOUIS 
BOARD OF DIRECTORS, INDEPENDENT COLLEGES 

AND UNIVERSITIES OF TEXAS, INC.
UNIVERSITY OF ARIZONA COLLEGE OF LAW 
NEW ENGLAND SCHOOL OF LAW 
OHIO NORTHERN UNIVERSITY, CLAUDE W. PETTIT 

COLLEGE OF LAW
SOUTHWESTERN UNIVERSITY SCHOOL OF LAW 
ST. MARY’S UNIVERSITY SCHOOL OF LAW 
TEXAS TECH SCHOOL OF LAW 
THURGOOD MARSHALL SCHOOL OF LAW AT 

TEXAS SOUTHERN UNIVERSITY 
TOURO COLLEGE, JACOB D. FUCHS BERG LAW 

CENTER

* There are no parent or subsidiary companies within the mean­
ing of Rule 29.1.



T A B L E  OF CO N TEN TS
Page

TABLE OF AUTHORITIES  .................................... ii

INTEREST OF THE AMICI CURIAE AND SUM­
MARY OF ARGUMENT ............................................. 1

ARGUMENT........ ............................................................  4
I. RACE-SPECIFIC OR MINORITY-SPECIFIC

SCHOLARSHIPS ARE WIDESPREAD AT 
INSTITUTIONS OF HIGHER EDUCATION 
AND SERVE IMPORTANT INSTITUTIONAL
GOALS WITHOUT UNDULY BURDENING 
OR DIMINISHING THE OPPORTUNITIES 
OF INELIGIBLE STUDENTS ..........................  4

II. UNDER THE FOURTH CIRCUIT’S AP­
PROACH TO RACE-SPECIFIC OR MI­
NORITY-SPECIFIC SCHOLARSHIPS, FEW 
WOULD SURVIVE .............................................  8

CONCLUSION .................................................................. 12



11

TABLE OF AUTHORITIES
CASES: Page

Brown V. Board of Education, 347 U.S. 483
(1954) ................................................................... 2

Metro Broadcasting, Inc. V. FCC, 497 U.S. 547
(1990) ................................ ....................................  5

Regents of the University of California V. Bakke,
438 U.S. 265 (1978) ............................................. 5,11

United States V. Fordice, 112 S. Ct. 2727 (1992).... 5
Wygant V. Jackson Board of Education, 476 U.S.

267 (1986) ............................................................  10,11

STATUTES:
Title VI of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000d (1988) ....................................     2,
Montana Code Ann. § 20-25-421(4) (a) (1993).....

OTHER AUTHORITIES:
Montana Board of Regents Policy 940.13.d (1994).. 7
Nondiscrimination in Federally Assisted Programs;

Title VI of the Civil Rights Act of 1964; Pro­
posed Policy Guidance (Dep’t of Ed.), 56 Fed.
Reg. 64548 (Dec. 10, 1991)..................................  4

Nondiscrimination in Federally Assisted Programs;
Title VI of the Civil Rights Act of 1964; Notice 
of final policy guidance (Dep’t of Ed.), 59 Fed.
Reg. 8756 (Feb. 23, 1994) ......................... .......  4, 5, 6

United States General Accounting Office, “Higher 
Education: Information on Minority-Targeted 
Scholarships” (January 1994) (GAO/HEHS- 
94-77) 4,8

-3
 c

n



In  T he

kapron? (tart uf tljp Initph Elates
O c to b e r  T e r m , 1994

No. 94-1620
W il l ia m  E. K ir w a n  et ah,

Petitioners,

D a n ie l  J. P odberesky ,
__________ Respondent.

No. 94-1621
M on ica  G r e en e  et al,

Petitioners,

D a n ie l  J. Podberesky ,
__________ Respondent.

On Petitions for Writs of Certiorari to the 
United States Court of Appeals 

for the Fourth Circuit

BRIEF OF INSTITUTIONS OF HIGHER EDUCATION 
AS AMICI CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE AND 
SUMMARY OF ARGUMENT1

This brief is submitted on behalf of twenty-seven insti­
tutions of higher education— listed on the inside cover of 
this brief— that wish to support the granting of writs of 
certiorari so that the decision of the Fourth Circuit in

1 The parties’ written consents to the filing of this brief are 
being filed today with the Clerk of the Court.



2

this case may be reviewed by this Court.2 Many of the 
institutions joining this brief have race-specific or 
minority-specific scholarship programs of their own. 
While these programs take many different forms and 
have been adopted by institutions with different circum­
stances and histories, they share a common characteris­
tic: they have proven to be effective tools in attracting 
and retaining minority students.

Like the University of Maryland at College Park 
( “UMCP” ), some of these institutions had a history of 
legal segregation before Brown v. Board of Education, 
347 U.S. 483 (1954 ), and have been subject to proceed­
ings and negotiations with the Office of Civil Rights of 
the Department of Education (and its predecessor) for 
many years after the passage of Title VI of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000d, aimed at en­
suring that the previously segregated system has been 
disestablished and the effects of prior discrimination 
eliminated. Some of these institutions— like UMCP—  
partly justify their race-specific scholarship programs as 
efforts to remedy past discrimination in response to en­
forcement proceedings instituted by the Office of Civil 
Rights in the past. The rejection by the Fourth Circuit 
of the “remediation justification” put forward by UMCP 
— in spite of the extensive evidence that the University 
assembled in support of its program— may jeopardize 
such programs at institutions that have been targeted by 
the Federal Government for enforcement proceedings 
under Title VI in the past.

Other institutions joining this brief do not have his­
tories of segregation or believe that they have already

2 The decisions in the lower courts appear at 764 F. Supp. 364 
(D. Md. 1991) (App. 109a) (granting defendants’ motions for 
summary judgment), 956 F.2d 52 (4th Cir. 1992) (App. 96a) 
(reversing and remanding), 838 F. Supp. 1075 (D. Md. 1993) (App. 
34a) (granting defendants’ motions for summary judgment), and 
88 F.3d 147 (4th Cir. 1994) (App. la) (vacating and remanding 
with directions to grant plaintiff’s motion for summary judgment).



3

remedied past discrimination. They justify their race- 
specific or minority-specific programs solely or prin­
cipally as legitimate efforts to promote or achieve a di­
verse student body, or expect in the future to justify their 
programs on these grounds. Those institutions fear that 
the Fourth Circuit’s ruling, including its cursory treat­
ment of UMCP’s contention that its scholarship program 
was justified in part on diversity grounds, also places in 
legal jeopardy their own scholarship programs.

Finally, other institutions do not have race-specific or 
minority-specific scholarship programs at the present 
time, but support the institutional and societal objectives 
served by such programs and wish to be free to adopt 
such programs in the future.

All of the institutions joining this brief are troubled 
by the implications and effects of the Fourth Circuit’s 
decision and urge its consideration by this Court. Race- 
specific scholarships have been an essential weapon in 
the arsenal of techniques used by colleges and universi­
ties to attract minority students and to retain them once 
they are admitted. Today, when the number of qualified 
minority students enrolled at many institutions of higher 
education is declining, the need for carefully targeted 
minority financial aid remains as high as ever. The 
Fourth Circuit’s decision fails to provide useful guidance 
for race-specific scholarship programs but instead vir­
tually slams the door on such programs, sending an un­
mistakable warning both to the administrators of such 
programs and to students of all races. The effects of the 
decision could be devastating to the effort— barely more 
than a generation old— to increase the participation of 
minority students at American colleges and universities.

The petitioners have already briefed the facts of this 
case in detail and demonstrated the ways in which the 
Fourth Circuit’s decision diverged from well-established 
law in this area. In addition, the petitions and the briefs 
of other amici demonstrate well the national importance



4

of this case. The institutions joining this brief support 
the petitions. In what follows, we highlight the impor­
tance of the case to institutions of higher education and 
some of the difficulties posed by the Fourth Circuit’s 
decision.

ARGUMENT

I. RACE-SPECIFIC OR MINORITY-SPECIFIC SCHOL­
ARSHIPS ARE WIDESPREAD AT INSTITUTIONS 
OF HIGHER EDUCATION AND SERVE IMPOR­
TANT INSTITUTIONAL GOALS WITHOUT UN­
DULY BURDENING OR DIMINISHING THE OP­
PORTUNITIES OF INELIGIBLE STUDENTS.

In 1991, in soliciting comments on proposed policy 
guidance on nondiscrimination in student financial aid, 
the Department of Education took note of evidence from 
the American Council on Education ( “ACE” ) showing 
that “ approximately 3.5 percent— about 45,000— of all 
minority students at four-year colleges receive ‘race- 
exclusive scholarships’, that is, scholarships for which stu­
dents of only a designated race or national origin may 
compete.” According to the ACE, “ colleges most often 
offer race-exclusive scholarships in order to increase the 
diversity of their student populations.”  56 Fed. Reg. 
64548 (Dec. 10, 1991).

By the time the Department issued its final policy 
guidance in 1994, 59 Fed. Reg. 8756 (Feb. 23, 1994), 
the General Accounting Office had studied the matter 
and reported that 64 percent of all undergraduate schools, 
32 percent of graduate schools, and 72 percent of all pro­
fessional schools had one or more minority-targeted 
scholarships.3

8 United States General Accounting Office, “ Higher Education: 
Information on Minority-Targeted Scholarships” (January 1994) 
(GAO/HEHS-94-77) at 59, Table III.2. The Report (at 1) defines 
“minority-targeted scholarships” as “ scholarships for which some 
form of minority status is an eligibility requirement.”



5

It is obvious from these figures that many institutions 
of higher education have found minority-specific scholar­
ship programs necessary and appropriate to serve im­
portant educational and institutional values. For institu­
tions that, like UMCP, have an acknowledged history of 
segregation, eliminating current effects of past discrim­
ination is of course an appropriate goal— indeed one re­
quired by law. In determining whether states have dis­
charged that obligation, this Court has consistently asked 
“whether existing racial identifiability is attributable to 
the State and examined a wide range of factors to de­
termine whether the State has perpetuated its formerly 
de jure segregation in any facet of its institutional sys­
tem.” United States v. Fordice, 112 S. Ct. 2727, 2735 
(1992). Many institutions, like UMCP, have decided 
that a limited number of race-specific scholarships appro­
priately advance that important goal without running 
afoul of the Fourteenth Amendment or Title VI. The 
Department of Education expressly recognizes the appro­
priateness of race-specific scholarships in achieving this 
goal, so long as there is a “ strong basis in evidence” for 
concluding that the college’s action is “necessary to rem­
edy the effects of its past discrimination.” 59 Fed. Reg. 
at 8757.

In addition, for institutions of higher education that 
have adopted race-specific or minority-specific programs 
— both those that have a history of past discrimination 
and those that do not— those programs serve the impor­
tant goal of furthering the “ attainment of a diverse 
student body,” the goal identified in Bakke as “ a constitu­
tionally permissible goal for an institution of higher edu­
cation.”  Regents of the University of California v. Bakke, 
438 U.S. 265, 311-12 (1978) (Powell, J .). See also 
Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 
(1990) ( “ a ‘diverse student body’ contributing to a ‘ “ro­
bust exchange of ideas” ’ is a ‘constitutionally permissible 
goal’ on which a race-conscious university admissions pro­
gram may be predicated * * *” ).



6

Attainment of a diverse student body at a university 
serves important educational goals. As the Department 
of Education observed, many colleges “ seek to create on 
campus an intellectual environment that reflects” the na­
tion’s own diversity, as “America * * * has forged one 
Nation from many people of a remarkable number of 
different backgrounds.” 59 Fed. Reg. at 8757. Such a 
diverse intellectual environment benefits students of all 
races and backgrounds. The UMCP Decision and Re­
port Regarding the Benjamin Banneker Scholarship Pro­
gram (hereinafter the “Report” ), reproduced in the A p­
pendix to the petitions at pp. 139a-220a, not only states 
UMCP’s commitment to a diverse student body to further 
its educational goals, but demonstrates that other insti­
tutions share that commitment, quoting affidavits in the 
record from Donna E. Shalala, then Chancellor of the 
University of Wisconsin-Madison and now Secretary of 
the Department of Health and Human Services (App. 
213a-214a), William H. Danforth, Chancellor of Wash­
ington University (App. 215a-216a), and Sheldon Hack- 
ney, then President of the University o f Pennsylvania and 
now Chair of the National Endowment for the Humani­
ties (App. 215a, n.126). Ms. Shalala stated that her 
own university “cannot provide a quality education— that 
is, an education which will prepare students to live, work 
and provide leadership in the United States— without the 
active participation of and exposure to a diverse student 
body.” App. 214a. Dr. Danforth said:

“While de jure segregation is a thing of the past 
(albeit the recent past), the attitudes and stereotypes 
that accompanied legal segregation have not dis­
appeared. Changes in beliefs and attitudes require 
time and education. We think it important that 
American institutions, in partnership with govern­
ment, take active steps to make these institutions 
places where African Americans feel welcome and 
to continue the work of dismantling old ideologies 
and prejudices.” App. 215a.



7

Such quotations could be multiplied endlessly, but we 
believe that the importance that institutions have long 
placed on a diverse student body is not a matter of serious 
dispute.

T o attain desirable student diversity, many institutions 
— like UMCP— have decided that one appropriate tool 
is the race-specific or minority-specific scholarship. Dr. 
Danforth, in the affidavit just quoted, reported that the 
number of African Americans who applied to Washington 
University tripled after a scholarship program targeted at 
African Americans, and awarded to up to ten freshmen 
each year, was instituted in 1987.4 UMCP adopted an­
other form of such a program. Its Banneker Scholarship 
Program awards twenty to thirty full scholarships per year 
to high-achieving black students already selected for ad­
mission and encompasses about one percent of financial 
aid moneys available to UMCP students. Other institu­
tions may target different groups— Asian Americans, His- 
panics, Native Americans,5 or other race or minority 
groups— and may have programs that are considerably 
more limited in number, covering only one or two stu­
dents. Isolated instances of race-specific or minority- 
specific scholarships may arise at a university because 
committed graduates or other philanthropists may have 
contributed money in honor of a prominent graduate. 
Moreover, while UMCP decided to award its Banneker

4 Affidavit of William H. Danforth, UMCP Decision and Report 
Exhibit 68, ffff 8-12.

5 For example, the State of Montana specifically authorizes the 
University of Montana system to waive tuition and fees for persons 
of one-fourth Indian blood in residency in the State. Montana 
Code Ann. § 20-25-421(4) (a) (1993). Pursuant to that authority, 
the Montana Board of Regents has required all public university 
campuses to give tuition and fee waivers to such persons when 
they meet financial need prerequisites. Montana Bd. of Regents 
Policy 940.13.d (1994). The University’s main campus in Missoula 
has granted an average of 173 waivers annually over the past few 
years pursuant to this policy.



8

Scholarships regardless of need, other institutions con­
tinue to require a showing o f need, even where particular 
scholarships are limited to members of particular groups.

With all the variations in the form of race-specific or 
minority-specific scholarships, and with all the variations 
in the histories and philosophies of the institutions that 
have adopted them, such programs typically provide a 
small percentage of the total scholarship money available 
to students and award money to a small percentage of 
the minority students at the institution.® These scholar­
ships ordinarily and demonstrably supplement existing 
scholarship programs, rather than taking money away 
from existing programs. The money for the scholarships 
often has been donated for the specific purpose advanced 
by the particular scholarship, so that there is no good 
reason to believe that the money would nevertheless have 
been available had the institution refused to accept it as 
funding for a race-specific or minorty-specific scholarship. 
Thus, not only do these scholarships serve important 
institutional goals at the institutions that have adopted 
them, but they do so in a limited way that imposes little 
or no direct “burden” on ineligible students.

II. UNDER THE FOURTH CIRCUIT’S APPROACH 
TO RACE-SPECIFIC OR MINORITY-SPECIFIC 
SCHOLARSHIPS, FEW  WOULD SURVIVE.

Faced with a lawsuit challenging its race-specific schol­
arship program, UMCP undertook a careful review of the 
program and issued a 71-page Decision and Report with 
69 exhibits. App. 139a-220a. That Decision and Report 
summarized the University’s history of discrimination 
against African Americans; examined the available evi­
dence that significant present effects of past discrimina­
tion continued to exist at the University, concluding that 
such effects do exist; pointed out the minimal effect of

6 See GAO Report, supra, at 4-5 & 60, Table III.4.



9

the program on ineligible students; demonstrated that 
other programs to recruit and retain minority students 
have not been as successful as hoped, while the Banneker 
program has proved effective; and committed itself to 
review the need for the program every three years (see 
App. 212a). While that Decision and Report convinced 
the district court that UMCP’s program was justified 
under this Court’s decisions, the Fourth Circuit ruled the 
program unlawfully discriminatory in an opinion that 
gives little or no credit to the University’s effort, rejects 
some justifications as a matter of law, and finds the 
Banneker Program “not narrowly tailored” to remedy past 
discrimination.

It is hard for the institutions of higher education that 
have a direct interest in these issues to read the Fourth 
Circuit’s decision as signalling anything other than ex­
treme judicial hostility to any race-specific or minority- 
specific scholarship program an institution might offer—  
no matter what justification and evidence the institution 
assembles in its defense and no matter how limited the 
program in relation to other financial aid offered by or 
through the institution. No institution of higher educa­
tion that justifies its own race-specific or minority-specific 
scholarship program as a reasonable means to achieve 
diversity can rest easy if the Fourth Circuit’s decision 
goes unreviewed and is taken as a guide by other Circuits. 
Several examples make the point.

First, the University’s Decision and Report contained 
direct evidence of a causal connection between the vestigial 
effects of de jure segregation, the contemporary attitudes 
of African Americans towards UMCP, and the present 
effects of those attitudes on their willingness to attend 
UMCP. The district court found the evidence “over­
whelming” that UMCP continues to have a poor reputa­
tion among African Americans, attributable to its past 
discrimination, and that this poor reputation affects re­
cruitment of African-American students. 838 F. Supp.



10

at 1084-87 (App. 54a-62a). The Fourth Circuit, how­
ever, trivialized this record evidence with the remark that 
“mere knowledge of historical fact is not the kind of pres­
ent effect that can justify a race-exclusive remedy.” 38 
F.3d at 154 (App. 10a). One can only wonder at this 
casual conflation of “mere knowledge of historical fact” 
with the specific cause-and-effect relationship that the Uni­
versity was offering evidence to establish and that the 
district court found to be established. This casual rejec­
tion of record evidence sends a dismaying signal to other 
institutions.

Second, the district court found that, by attracting 
“high-achieving black students” to the University, the Ban- 
neker Program “ serves to enhance UMCP’s reputation in 
the African-American community, increase the number of 
the African-American students who might apply to the 
University, improve the retention rate of those African- 
American students who are admitted and help ease racial 
tensions that exist on the campus.” 838 F. Supp. at 1095 
(App. 83a). In rejecting this justification, the Fourth 
Circuit found it relevant to say: “High achievers, whether 
African-American or not, are not the group against which 
the University discriminated in the past.” 38 F.3d at 158 
(App. 20a). Again, one can only wonder at this state­
ment when the record is undisputed that the University 
had previously excluded all African Americans, regardless 
of the level of their achievement.

Third, while UMCP had justified its program in part 
on the ground that Banneker Scholars would serve as 
mentors and role models for other African-American stu­
dents, thereby attracting more African-American students 
— a justification the district court again found persua­
sive— the Fourth Circuit dismissed the contention on the 
ground that “ [t]he Supreme Court has expressly rejected 
the role-model theory as a basis for implementing a race­
conscious remedy, as do we,” citing Wygant v. Jackson 
Board of Education, 476 U.S. 267, 276 (1986) (plural­



11

ity opinion). 38 F.3d at 159 (App. 22a). Wygant, how­
ever, merely found that the school board’s interest in pro­
viding minority role models for its minority students was 
insufficient to justify a lay-off program for teachers under 
which the percentage of minority teachers to be retained 
was tied to the percentage of minority students. That 
case cannot fairly be read as requiring the rejection of 
UMCP’s role-model justification of the considerably nar­
rower Banneker program— which grants financial aid to 
African Americans in numbers far below their representa­
tion at the University and which is merely one small part 
of the University’s overall financial aid program.

Finally, having decided that the University’s motion 
for summary judgment could not be granted because, in 
the Court’s view, the program was not “narrowly tailored 
to remedy past discrimination,” the Court failed to ad­
dress UMCP’s separate justification that the program was 
necessary to achieve the University’s goal of a diverse 
student body and proceeded— on grounds that are difficult 
to decipher— to direct the district court to grant the plain­
tiff’s motion for summary judgment. 38 F.3d at 161-62 
(App. 28a-29a). Moreover, when the Fourth Circuit 
had discussed the diversity justification in its first deci­
sion in 1992, it had appeared to read Bakke as preventing 
a university from ever justifying a scholarship program 
limited to black students on the ground of achieving “gen­
uine diversity.” 956 F.2d at 56 n.4 (App. 103a n.4).

All agree that decisions of institutions of higher educa­
tion to adopt race-specific or minority-specific scholarship 
programs are not immune from judicial review. Applica­
ble precedent of this Court provides that there is a con­
stitutional or statutory standard to be met. But the 
Fourth Circuit’s decision goes far beyond that precedent 
in applying what it sees as the appropriate standard in 
such a way as to condemn almost any university’s attempt 
to justify race-specific and minority-specific scholarship 
programs.



12

This Court should grant review of this case to ensure 
that the Fourth Circuit and other circuits do not, by the 
device of applying standards that cannot realistically be 
met, effectively outlaw race-specific and minority-specific 
scholarship programs.

CONCLUSION

For all of these reasons, as well as the reasons set forth 
in the petitions, this Court should grant the petitions for 
writ of certiorari.

Respectfully submitted,

John  T ownsend R ich 
Shea  & Gardner 
1800 Massachusetts Ave., N.W. 
Washington, D.C. 20086-1872 
(202) 828-2185 

Counsel of Record for the 
Institutions of Higher

May 1,1995 Education as Amici Curiae