UPDATED
Dismissed on a technicality, the lawsuit likely will be refiled, lawyer says
Lawyers representing Young America’s Foundation and two white students in a case alleging racial discrimination by the Department of Education are considering refiling the lawsuit after a judge recently dismissed it based on “procedural issues.”
“We are encouraged that the judge said the program is likely unconstitutional … and are working out next steps to deal with the procedural issues identified by the judge,” attorney Skylar Croy with the Wisconsin Institute for Law & Liberty told The College Fix in an emailed statement.
“We are committed to dismantling this discriminatory program,” Croy said Monday.
In a Dec. 31 order, Judge Peter Welte threw out the case regarding the federal McNair Post-Baccalaureate Achievement Program, the Grand Forks Herald reports.
He cited “procedural issues” and dismissed the case without prejudice, meaning it can be filed again, according to the report.
“Indeed, given recent United States Supreme Court decisions, including Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023), it seems likely the racial eligibility criteria fails to satisfy strict scrutiny. No doubt this is why many higher education institutions have proactively decided to no longer apply it,” the judge wrote.
The case alleges the federally funded McNair Program excludes Asians, Arabs, Middle Easterners, non-Hispanic Latinos, some Africans, and whites unless they meet a limited exception for first-generation low-income students, The College Fix reported previously.
According to the Herald:
Welte’s order explained what the plaintiffs were requesting — that the U.S. Department of Education remove the racial and ethnic requirements from the McNair Program and notify universities to do the same — could not be granted because necessary defendants were missing from the suit.
The case, filed in August, argued that McNair’s racial and ethnic requirement is unfair and has had a negative effect on students, including Avery Durfee of [the University of North Dakota] and Benjamin Rothove of the University of Wisconsin-Madison, who joined the suit along with the Young America’s Foundation and the area chapter Young Americans for Freedom. …
Welte’s order explained that, because the universities that the two student plaintiffs attend are not listed as defendants in the case, any decision Welte makes will not affect the universities and therefore cannot remedy the injuries the plaintiffs claim to have experienced.
In the lawsuit, the students and YAF allege the McNair Program’s race-based requirements violate the Constitution’s guarantee of equal protection.
The students say they would qualify for the program if they were not white.
“An official from my university told me that I could not apply to the McNair Program because of the eligibility requirements set by the Department of Education. … I joined this lawsuit to help expand scholarship opportunities to more students,” Rothove told The College Fix in September.
The McNair Program seeks to “increase the attainment of Ph.D. degrees by students from underrepresented segments of society.”
It is open to participants from “disadvantaged backgrounds” who have “demonstrated strong academic potential,” offering internships, seminars, tutoring, academic counseling, a stipend, and more, according to the U.S. Department of Education.
Editor’s note: This article was updated to include comments from the students’ attorney.
MORE: White students sue DOE over race-based exclusion in scholarship program
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