The fate of hundreds of millions of dollars in scholarship money has been thrown into uncertainty in Ohio after seven state universities placed their race-conscious programs under review to check their legality. The move comes after Ohio Attorney General Dave Yost warned administrators that using race as a factor in awarding funds is potentially unconstitutional.
Yost based his guidance on the U.S. Supreme Court’s June 2023 decision in Students for Fair Admissions v. Harvard, which banned the utilization of race in college admissions, except in limited circumstances. Yost’s interpretation of the court’s opinion was not unexpected, as he had previously signaled a crackdown on race-conscious programs the day after the Supreme Court issued its ruling.
Ohio is not the first state to take action against race-conscious scholarship programs in the wake of the Supreme Court’s decision. Missouri’s attorney general swiftly prohibited the consideration of race in financial aid decisions, while officials at the universities of Kentucky and Missouri have likewise eliminated race as a factor in scholarships and grants.
The developments in Ohio and beyond raise the question of whether scholarships that use race as part of their criteria are on their way out. The short answer, based on a review of the 2023 Supreme Court decision and other precedent, is ‘no.’ However, such programs will now face a more rigorous legal test and will need to prove they meet strict standards to pass muster.
Campus leaders have some guidance on how to navigate this new landscape. In August 2023, the federal departments of Justice and Education provided advice on how schools could maintain a diverse student body without considering race in admissions decisions. The guidance suggested factors such as socioeconomic status, ZIP codes, high schools attended, academic achievements, and demonstrated contributions to society as potential alternatives.
However, the federal agencies did not directly address how the court’s ruling would affect scholarships and financial aid. Legal experts will likely need to refer to the 2023 Supreme Court decision for further clarification.
In its review of the admissions programs at Harvard and the University of North Carolina, the Supreme Court applied a strict scrutiny standard, the highest level of legal review under the 14th Amendment’s equal protection clause. To pass this test, policies or laws that affect fundamental rights must serve a ‘compelling state interest’ and be written to minimize their impact on such rights.
In 2003 and 2016, the court had ruled that a diverse student body is a compelling interest. However, in the 2023 Harvard/UNC case, the court found that both universities’ race-conscious admissions programs failed to meet the strict scrutiny standard. The programs were deemed to involve racial stereotyping, lack ‘sufficiently focused and measurable objectives warranting the use of race,’ and ‘unavoidably employ race in a negative manner.’
These programs were held to violate both the equal protection clause of the Constitution and Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in programs or activities that receive federal assistance, such as student loans and Pell Grants.
Some legal scholars argue that the court’s decision effectively bans the use of race in awarding scholarships, just as it did in admissions. However, this view overlooks two important points. First, the Supreme Court did not rule that diversity can never be a compelling state interest or that race can never be considered in educational programs. Second, the court’s decision specifically applies to programs that receive federal assistance.
Even race-conscious admissions programs are not entirely off the table if they can pass the strict scrutiny test. The Supreme Court indicated that consideration of race might be allowed if there is ‘an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review.’
For example, the Supreme Court has upheld race-based policies at U.S. military academies, recognizing that a diverse officer corps is a compelling state interest in the context of national defense. However, in the wake of the Harvard/UNC decision, even these programs will need to explore alternative strategies for achieving diversity.
Approaches to diversity in admissions that do not rely on race, such as those suggested by the Departments of Education and Justice, can provide guidance for school administrators. Institutions like MIT and Stanford Law are already using criteria such as income, ZIP code, and civic engagement to maintain diversity in their programs.
The use of race in scholarships and admissions is not the only legal challenge facing race-conscious programs. In July 2023, 13 state attorneys general sent a letter urging Fortune 100 CEOs to eliminate all such programs at their companies. Critics of race-conscious programs have also questioned their use in scholarships and financial aid programs funded from outside a university, including fellowships that consider race in supporting underserved students.
In contrast, some campus leaders and legal experts argue that the court’s decision should be limited to race-conscious admissions and should not extend to other programs where race might be used as a factor. They emphasize that the court did not outright ban the use of race in all contexts.
For students seeking to improve their chances of obtaining scholarships, it is important to be aware of the permissible criteria for awards and to do your own research. Stay informed about potential changes in state laws or policies that could affect scholarship opportunities, and consult with financial aid administrators at your school to understand how they are interpreting the Harvard/UNC decision.
It is also crucial not to rely solely on financial aid from the college you attend. Explore and apply for scholarships and financial aid from sources outside the university, as the Supreme Court decision only applies to institutions that receive public funds.
