After the Court banned affirmative action in college admissions, all racial and ethnic classifications are under question.
American higher education is characterized by many forms of tuition discounts, often called “scholarships.” Some of them are based on distinguished academic achievement, but often that term is attached to other forms of financial subsidies to give the grants more panache. Are some forms of these subsidies illegal?
Athletic “scholarships,” so common on many campuses, are not related to academic performance, but are based on various kinds of physical potential and past sports achievements. Campuses may also provide scholarships to students with other kinds of talents, musical, artistic, and even journalistic, but no one seems to study their rules or distribution outcomes, although Title IX would also seem to apply.
Many campuses have scholarships with very specific qualifications created by donors. Endowments are chock-full of them. Money is fungible, and institutions are happy to receive these donations, even if the specificity of the qualifications may make finding a recipient difficult. Most often, these qualifications raise no legal issues. Scholarships that can only be awarded to students from a specified geographical area or who intend to study an identified subject, or who have a record of academic brilliance after admission, raise no obvious legal issues.
All racial and ethnic classifications, however, do raise questions under the principles laid out by the Supreme Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and the University of North Carolina (2023, hereafter SFFA). Some in higher education circles have argued that since SFFA’s immediate issue was admissions preferences, the ruling does not apply to other forms of discrimination. For example, University of Maryland, College Park Professor of Education Julie J. Park, who served as a consulting expert for Harvard in SFFA, wrote recently:
Critically, some of the programs deemed illegal by the Trump administration have not been ruled unlawful in the courts, such as scholarships and prizes that consider race or ethnicity in the selection process. The more accurate term to describe them is “vulnerable” rather than “illegal.” In Students for Fair Admissions v. Harvard, the Supreme Court specifically struck down a form of race-conscious admissions. While a court technically could apply SFFA in the future to render consideration of race in scholarships and recruitment efforts illegal, that day has yet to come, despite the current administration’s faulty interpretation of the ruling. …
The fuzziness over the legality of traditional race-conscious scholarships and recruitment programs will remain until the question is decided by the courts.
Professor Park does not discuss or quote any other cases or refer to the lengthy pattern of Office for Civil Rights (OCR) findings against racial and ethnic scholarship discrimination.
Ironically, one clear-cut racial scholarship court decision occurred in a case involving Park’s own campus. The University of Maryland had been segregated, and the campus tried to compensate by offering some scholarships only to Black students. In 1994, a unanimous Fourth Circuit Court of Appeals in Podberesky v. Kirwan found that that program violated the Equal Protection Clause of the Fourteenth Amendment. That Court’s opinion analyzed the concept of “underrepresentation” and found, even if black students were underrepresented, that would not justify race-exclusive scholarships.
The same day SFFA was decided, Missouri Attorney General Andrew Bailey ordered public universities to stop using race as a factor in scholarship decisions. The state had more than four dozen funds that used race or ethnicity as a criterion for awards. The problem was that many of these funds were privately donated, so the University of Missouri system had to go to court to keep the funds, while no longer using race or ethnicity as the donor intended.
Scholarship litigation has become more common after SFFA. Edward Blum, who was the head of Students for Fair Admissions, has created a new organization, the American Alliance for Equal Rights (AAFER). It is “dedicated to challenging distinctions made on the basis of race and ethnicity in federal and state courts” and with a national membership, it is well positioned to be the plaintiff wherever these distinctions are made. Partnering with the Consovoy McCarthy law firm, which won SFFA, AAFER has challenged racial preferences in a wide variety of fields.
In 2023, AAFER sued two prominent law firms—Perkins Coie LLP and Morrison & Foerster—for sponsoring diversity fellowships for first- and second-year law students if they were persons of color or LGBTQ+. In its complaint, AAFER cited SFFA several times and a Perkins staff memo that stated, “Employment decisions that are overtly made on protected basis ran afoul of the law before and after [SFFA].” Both law firms settled their cases by removing the preferences and probably set a precedent for other law firms around the country. (See American Alliance For Equal Rights v. Morrison & Foerster, 2023, and American Alliance For Equal Rights v. Perkins Coie, 2023).
One of the reasons that there have been so few court cases about discriminatory scholarships is that there is nothing ambiguous about these requirements.
While not exactly a scholarship, Southwest Airlines created an award program of free flights for Hispanic students. In exchange, these students had to agree with the Airlines to use their name, image, and likeness in various promotions. AAFER sued because the ¡Lánzate! program specifically excluded students from non-Hispanic backgrounds. To be eligible, “Student[s] must identify direct or parental ties to a specific country to determine Hispanic origin.” Since the airlines received various forms of federal funding, AAFER claimed there was a violation of Title VI. Southwest almost immediately terminated the ¡Lánzate! program and sent AFFER an offer of “one cent” to moot the case. AAFER refused the penny. Sidney A. Fitzwater, Senior Judge in the Northern District, Dallas Division of Texas, citing SFFA in several places, then ruled the plaintiffs had standing, the case was not moot, and they were entitled to nominal damages. (Americans Alliance For Equal Rights v. Southwest Airlines, 2024).
Private organizations that are not federally subsidized and that fund race-based scholarships may also be vulnerable to SFFA. In 2025, AAFER sued the McDonald’s Corporation regarding its forty-year-old Hispanic-only scholarship program. Within two weeks of the complaint, McDonald’s agreed that henceforward the scholarship program “will not have any eligibility requirements or preference based on applicants[‘] race or ethnicity.” (Stipulation of Dismissal. AAFER v. McDonald’s Corporation, 2025).
Perhaps a new lawsuit by AAFER against the American Bar Association (ABA) will have the most symbolic value: American Alliance For Equal Rights v. American Bar Association, 2025. ABA membership encompasses nearly a quarter of all lawyers in the country, and its model rules of professional conduct bar lawyers from “discrimination on the basis of race” because that would “undermine” the principle that “all people are created equal.” Nevertheless, ABA’s Legal Opportunity Scholarship Fund, run by its Diversity, Equity, and Inclusion Center, awards $15,000 to entering law student applicants who are “members of an underrepresented racial or ethnic minority (e.g., Black, African-American, Hispanic-American, Asian-Pacific Islander). It is too soon to know whether the ABA will eliminate its twenty-five-year-old race-based criteria for scholarships as the AAUW did or, if it contests the AAFER lawsuit, on what grounds it will choose to do so. Presumably, it will have access to top legal talent in making that decision.
Statutory law is quite clear regarding institutions that receive federal funding. Title VI of the 1964 Civil Rights Act states specifically: “No person in the United States shall, on the ground of race, color or national origin, be excluded from participation in, denied the benefit of, or be subjected to discrimination in any program or activity receiving Federal financial assistance.” Since almost all public and private campuses receive some federal money, Title VI applies to all their activities, including financial aid. In 1972, Congress extended anti-discrimination protection to sex-based programs through Title IX: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”
One of the reasons that there have been so few court cases about discriminatory scholarships is that there is nothing ambiguous about these requirements. They have been enforced for decades without litigation by the Office for Civil Rights (OCR) in the US Department of Education under various Presidential administrations.
No existing public race- or sex-based scholarship meets those SFFA tests or the textual requirements in the Title VI and IX.
For example, since 2019, Mark Perry, emeritus professor of economics at the University of Michigan-Flint, has filed nearly 1,000 complaints about more than 2,500 violations of Title VI and Title IX at more than 850 colleges and universities regarding race-based or sex-based scholarships, fellowships, grants, awards, and programs. Perry estimates that about two-thirds of his complaints have been successfully resolved by terminating the discrimination, and the other one-third are still being either evaluated or investigated by OCR.
More recently, the Equal Protection Project (EPP) of the Legal Insurrection Foundation, led by Cornell University Professor William Jacobson, has begun to file complaints with OCR against race-based scholarships and mentorship programs across the country. A University of Virginia mentorship BIPOC program was opened to everyone a few days after an EPP complaint. Race-based scholarships at Indiana University, Columbus, Minnesota State University Moorhead, North Central University, and the University of Rhode Island have become race-neutral or have been eliminated after similar complaints.
There are some advantages and disadvantages to the OCR complaint process. Nothing like the standing requirements that litigation requires exists. Complaints can be filed by anyone in any geographical area, and they do not have to allege that any personal harm was caused by the practice being challenged. Complainants do not have to hire an attorney or bear litigation costs. Discovery is performed by OCR staff and is usually fairly simple because the challenged practice can be found on the campus website or other public documents.
Still, there are downsides in terms of establishing a coherent legal framework. After investigation, if the complaint is accurate, the complainant usually will receive an OCR letter that states the complaint has been resolved because the campus has made the scholarship race or sex neutral or has discontinued the program entirely. Even if the discriminatory practice has lasted for decades, there is no fine, no reprimand of anyone, and no adverse publicity. Further, unlike other federal regulatory agencies, OCR does not publish the results of its completed investigations. They can only be accessed through arduous Freedom of Information Act requests. Consequently, there is an incentive for a campus to preserve discriminatory programs until they are found out after an OCR complaint or someone litigates.
OCR, however, does release Dear Colleague Letters (DCL) from time to time, expressing its general view of civil rights law. The most recent DCL is unambiguous about the illegality of race-based scholarships. It states:
Although SFFA addressed admissions decisions, the Supreme Court’s holding applies more broadly. At its core, the test is simple: If an educational institution treats a person of one race differently than it treats another person because of that person’s race, the educational institution violates the law. Federal law thus prohibits covered entities from using race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. Put simply, educational institutions may neither separate or segregate students based on race, nor distribute benefits or burdens based on race.
All this litigation and regulatory enforcement action is based on the Civil Rights Act and the broad principles of SFFA. Arguing that since that case was admissions fact focused, it is not binding regarding other higher education discrimination is like contending that Brown v. Board of Education only found that the schools in Topeka Kansas were in violation of the Fourteenth Amendment Equal Protection clause or that maybe it applied more broadly to K-12 schools, but not necessarily to higher education.
Sitting at the apex of the judicial system, the Supreme Court takes only a few cases each term, but frequently reviews them in such a way as to create broad rules that should be applied in lower courts in a variety of fact situations. In Brown, the Court ruled that “separate educational facilities are inherently unequal,” which doomed racial segregation in all forms of education. In SFFA, the Court ruled that the Equal Protection clause required that any governmental use of race as a remedial tool must be based on an identified previous Constitutional or statutory violation and then be subjected to the strict scrutiny test of finding a compelling interest and narrow tailoring in implementation. No existing public race- or sex-based scholarship meets those SFFA tests or the textual requirements in Title VI and IX. As the Court concluded in SFFA, “Eliminating discrimination means eliminating all of it.”
After the Court banned affirmative action in college admissions, all racial and ethnic classifications are under question.
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