The University of Missouri system is removing racial criteria from endowed scholarships, saying they run afoul of the Supreme Court’s affirmative action ban. Donors feel disrespected—and some may be ready to go to court.
By Liam Knox
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The University of Missouri’s flagship campus in Columbia. The system has been trying to remove racial criteria from endowed scholarships, against many donors’ wishes.
Michael B. Thomas/Getty Images
Almost as soon as the Supreme Court struck down affirmative action last June, Missouri attorney general Andrew Bailey fired off a response.
Within hours of the rulings in Students for Fair Admissions v. Harvard and UNC Chapel Hill cases (SFFA), Bailey ordered the state’s public colleges and universities to comply—which in his view meant removing race-conscious policies “not just [in] college admissions, but also scholarships,” an extrapolation that many legal experts say is unnecessary.
University officials quickly began amending institutional grants and scholarships across the system’s four campuses, according to Christian Basi, the Missouri system’s director of public affairs. Since then, they’ve worked methodically to bring other awards in line—including endowed scholarships that donors specified should go only to members of certain racial or ethnic groups. Such scholarships represent 2.3 percent of all financial aid awarded at the system’s flagship in Columbia, and 6.7 percent at the St. Louis campus.
Many of the scholarships have already been amended regardless of donor consent, thanks to a clause officials began adding to donor contracts about 15 years ago that allows for revisions in the event of a change in federal law, Basi said. Over the past year, the university has been contacting benefactors of scholarships established before then, working with them to make the awards race-neutral.
But there are holdouts—53 of them—who Basi said the university has either been unable to reach or who have “disagreements” over the change. Officials hope they can resolve any issues amicably, Basi said, but time is running out. If they’re not brought into line with Bailey’s order before the fall, the scholarships will be frozen for the next academic year.
The system board of curators is prepared to act unilaterally if they don’t get donor buy-in: Last month they filed a petition asking for the power to override the old agreements and remove racial criteria with or without the donors’ approval.
Several of the donors in question spoke with Inside Higher Ed, some on the record, some on background for fear of jeopardizing ongoing discussions with the university. They said the conversations have been fraught, coercive and disappointing. Several said they felt “betrayed” by their erstwhile institutional partners, though many conceded that the university system was in a difficult political and legal position.
Melinda Holmes, who helped endow a scholarship in honor of her father, Richard Holmes—the first Black professor at the University of Missouri School of Medicine—told Inside Higher Ed that she received an impersonal form letter from the university informing her that the scholarship’s criteria for African American students would have to be changed. She was devastated and distressed, but more than anything, she was “pissed off,” she said.
“It’s hard to find ways to help people. This was an exciting way to do that, and to honor my father, who faced a lot of discrimination as a Black doctor in Missouri and could tell you how hard it is to go it alone,” Holmes said. “There’s a part of me that really feels like this is an insult to his legacy, to all the years he gave there.”
Some donors said they hadn’t been contacted by university officials about changing the criteria for their race-based scholarships. Sisters Mary Willis and Cynthia Willis-Esqueda established the Frank Neal Willis Jr. Minority Scholarship Fund in their father’s name at the University of Missouri at Kansas City in 2004, which they specified should go to domestic students from underrepresented backgrounds—Native American and Mexican, like both their mother and father, or African American, to honor their parents’ legacy fighting for civil rights in Kansas City.
When Inside Higher Ed reached out to the siblings for comment, they said it was the first they’d heard about the proposed change—and were incensed at the idea that their father’s legacy would be sullied.
“I’m shocked and surprised,” said Willis, a professor of sociology and anthropology at Missouri State University. “My father went to UMKC, taught there for 35 years. They can’t be respectful of this small little fund in his name?”
Basi said that university records show attempts to contact the Willises in May, before the board’s petition was filed, but the family maintains they never received such a message.
The underlying premise behind Missouri’s efforts is that the SFFA decision applies to financial aid and scholarships as well as admissions, a broad interpretation of the ruling that has been widely adopted by Republican policymakers like Bailey—and which Basi said the university system stands behind.
“We wouldn’t be taking these steps if we weren’t confident [in our interpretation],” Basi said.
That interpretation is very much up for debate. It’s led some colleges to take action on race-based scholarships that they’ve later reversed, and put other race-conscious initiatives, such as financially subsidized academic bridge programs, in limbo.
Even the document Basi sent Inside Higher Ed to justify the Missouri system’s legal view—a resource for colleges put out last July by the higher ed law firm Education Counsel—is inconclusive. While it notes that race-conscious scholarships carry “a high risk of legal exposure,” the document is careful to say that the SFFA decision “did not expressly address issues relating to scholarships and financial aid.” It does not recommend the elimination of any race-conscious scholarships, nor does it make mention of endowed gifts.
Art Coleman, founding partner of Education Counsel, said universities like Missouri are in a difficult spot because the legal precedent for proving compelling interest in diversity programs has been wiped clean by SFFA.
“Schools still have to show a compelling interest to consider race as a factor in any policy or program that considers a student’s racial status; that’s a longstanding rule the Court didn’t change,” he said. “What the [Supreme] Court did in the SFFA case that was so consequential was wipe out 45 years of legal history on what a compelling interest may be. As a consequence, we can’t point to clear authority right now that will guide forward-looking interests like diversity. That remains to be litigated.”
That legal void also means Missouri’s push to override donor intent could create an opening for litigation to clarify the SFFA decision’s relevance to scholarships, or at least to endowed gifts.
Doug White, a philanthropy scholar and adviser who has studied high-profile donor disputes in higher ed for decades, said Missouri’s contract clauses allowing for amendments if federal law necessitates—often called “escape clauses”—aren’t uncommon. But without solid evidence that the law around minority scholarships has indeed changed, the university may have opened itself to litigation. They’d be wading further into those waters if the board of curators’ petition to unilaterally alter donor agreements is approved, he said.
“This has to be fought, not for political reasons but from a donor protection perspective,” he said. “Once you get politics involved in how charitable funds are used, we’re really going down the wrong path.”
Some of Mizzou’s affected funds are endowed by large foundations or wealthy individuals—The Anheuser-Busch African-American Scholarship at the University of Missouri at St Louis, for instance—worth up to $100,000. But many more are small funds established to honor the legacy of someone with strong ties to the university, and often stewarded by their direct descendants. A few amount to less than $1,000 a year; the Frank Willis scholarship gives out about $500.
“It basically buys students’ books,” Willis-Esqueda said. “It’s not much, but for some students it’s really meaningful. And for our family, it was a lot to do. We felt it was worth it to honor our father’s past.”
Frank Willis at the University of Missouri at Kansas City in the 1970s.
Courtesy of Cynthia Willis-Esqueda
The scholarship that Jim and Cathy Brazeal endowed at University of Missouri at Columbia in 2004 is more substantial—about $15,000 for at least four students each year, totaling more than $60,000. The Brazeal Scholarship is not one of the 53 targeted by the Missouri system board’s petition; their contract includes the legal escape clause. But they have struggled to negotiate the post-affirmative action changes with the university.
Jim Brazeal told Inside Higher Ed that he wanted to create the scholarship because of his experience growing up in Missouri during the Jim Crow era; he was in seventh grade when he witnessed the transformative power of the Supreme Court’s Brown v. Board of Education decision. The Brazeals meet with the scholarship winners every year; getting to know their struggles and dreams has been “one of the best things that’s happened to us,” Jim said.
But over the past year, as UM officials made it increasingly apparent that the racial aspect of the scholarship would have to be abandoned, their relationship with the university became strained.
“There was a lot of pressure all of a sudden,” he said. After he pushed back, he said the university adopted a more aloof tone.
“They said, ‘If you don’t want to let us rewrite this thing, then we’re going to rewrite it the way we think it ought to be done, and you’ll be required to sign it,’” he said. “It was a matter of fact. No threats, no outright coercion, but it was very cold after so many years working closely with them.”
Basi said the university system has “attempted to be as forthcoming and understanding as possible when talking with donors as we navigate this change in the law.”
Brazeal said he and his wife are “hanging tough” on the issue, and don’t want to “abandon our original goals—to improve racial harmony at the university.” But he recognizes they may have to adapt, and is open to using more need-based criteria, or reallocating the funds to benefit transfer students from community colleges.
The experience has left him disillusioned, and he wondered whether it might have a “chilling effect” on charitable giving to Mizzou.
Coleman said the financial implications of these donor tensions may be more than institutions are bargaining for.
“One of the perverse impacts for institutions that are having to move in this direction is that the total corpus of dollars available to all students is shrinking,” he said. “It is not just a harm to the particular students who may have been targeted beneficiaries, it’s harm to all … Financial aid operates very differently than admissions. There’s indisputably no simple zero-sum design here, as the Court asserted there was in admissions.”
Willis-Esqueda said that she and her siblings have occasionally added more money to the fund over the years, and that she had planned to leave a sizable sum to the university when she passed.
“Not anymore,” she said. “No way, no how, if they go ahead with this.”
Missouri may have been the first state to order public universities to review their race-based scholarship, but others are beginning to follow. In Ohio, where attorney general Dave Yost issued his own memorandum to colleges a few weeks after the affirmative action ban, public institutions have paused all race-based scholarships while they conduct a review of their legality.
Daniel Pittman, Ohio University’s senior director of communications, declined to comment on the review’s findings, saying it is “ongoing.” But he noted that the university sought to honor its commitment to students and donors while complying with the law. Chris Booker, director of media and PR at Ohio State University, said his institution had “begun reviewing all possibly relevant scholarships” but that it was too soon to say how many would be affected.
That makes determining the legality of Missouri’s donor agreement amendments even more pressing, White said. If the board of curators’ petition is successful, he expects—even hopes—to see donors push back using the only recourse they have left: the courts.
“If I were a donor caught up in this, I would absolutely sue,” he said.
Basi said the UM system “wouldn’t speculate” on future legal challenges, adding that their decisions were based on careful reviews by the university’s legal team.
Brazeal said he’d be unlikely to join a legal challenge to the university’s decision—but that doesn’t mean he wouldn’t cheer it on.
“I’m not keen on sorting things out through the courts, but sometimes that’s what it comes to,” he said. “In a way, I kind of hope it does. Maybe it would give the board [of curators] some accountability.”
The Willis sisters said they don’t really have the money to take on the University of Missouri in court by themselves. But if there were a larger class action suit including other donors?
“Then we’re in,” Willis said. “Absolutely.”
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