Stopping a Racially Exclusive Awards Program | Center for Equal Opportunity

Kudos to the Trump administration, Washington University in St. Louis, and (of course!) the Center for Equal Opportunity. The occasion is the recent resolution reached regarding a complaint that CEO filed last June with the federal Department of Education’s Office for Civil Rights about an illegally discriminatory program being run by the university.

The program at issue granted various awards to WUSL students, but only if they were black. A poster advertising the program was sent by a member of the university community to us, and we filed a complaint with OCR. The resolution agreement makes this program — and indeed other WUSL financial-aid programs that may have been race-restricted — open to all students “without regard to race, color or national origin.” The complaint that we filed with OCR (and the poster that we attached to the complaint), as well as the letter we received from OCR this month (which attached the determination letter and the resolution), are posted on CEO’s website here.

Whatever one thinks of racially preferential programs — and CEO opposes them all — a program that is not only racially preferential, but racially exclusive, is illegal. The Supreme Court has narrowly upheld the use of race and ethnicity by schools only as part of a calculus in which students are given “individualized consideration”; if students are told they cannot even apply to a program unless they are the right color, then obviously no individualized consideration is being given.

Any school currently engaging in such discrimination is vulnerable to complaints like the one we filed. And so we hope: (a) such a school would not end the program, but change it so that it is open to all students; and (b) if the discrimination persists, then anyone aware of such discrimination bring it to the attention of the Education Department’s Office for Civil Rights, which can be done by visiting its website here.

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As noted, the various documents related to this matter are posted on our website, but as a courtesy to our supporters who suffer from carpal tunnel syndrome, I’m including below the complaint we filed and the resolution agreement.

Complaint
June 7, 2019

The Honorable Kenneth L. Marcus
Assistant Secretary for Civil Rights
U.S. Department of Education

Dear Mr. Marcus,

The Center for Equal Opportunity wishes to file a complaint against Washington University in St. Louis for discrimination on the basis of race and color in violation of Title VI of the 1964 Civil Rights Act, 42 U.S.C. 2000d.

The complaint is prompted by the “James E. McLeod Honors & Awards Program,” which is open only to “Black students.” It was brought to our attention when a professor at the university sent us a flyer, photocopied below, describing the program. We have looked at the Internet descriptions of the program on the university’s website, and they also show that the program is racially exclusive. See, e.g., these links: https://mcleodawards.wustl.edu and https://mcleodawards.wustl.edu/about/ and https://diversity.wustl.edu/events/event/james-e-mcleod-honors-and-awards-program-nominations/ and https://mcleodawards.wustl.edu/gallery/ .

Some history, some of which may be relevant to you: Our organization filed a complaint against another racially exclusive program at the university in 2003 (OCR Docket #07042001). That complaint led to an investigation and ultimately a Resolution Agreement that ended the program’s racial exclusivity. In the course of the investigation, other racially exclusive programs were identified by your office, and CEO brought another program to the office’s attention that had been flagged for us, in turn, by the same professor who alerted us to the program we are now writing about. Note that the program we complained about in 2003 was founded by the namesake of the program we are now writing about (see this link: https://students.wustl.edu/ervin-scholars-program/ ).

In light of the fact that the McLeod program is described as being open only to black students, we note that it is unlikely that nonblack students would be nominated to it by anyone. The professor who alerted us to this program said that “It is generally ‘understood’ that many programs are intended for members of certain racial or ethnic groups, but this is rarely made explicit.” He concludes, “Everything is secret at WU.”

As has always been our position in challenging such a program, we do not seek to end it, but only to change it so that it is open to all students regardless of race, color, or national origin.
Thank you very much for considering our complaint.

Sincerely,

Roger Clegg
General Counsel
Center for Equal Opportunity
703/442-0066

Resolution Agreement
The Washington University
OCR Case Number: 07192100

The Washington University (University), submits this Resolution Agreement (Agreement) to the U.S. Department of Education, Office for Civil Rights (OCR), to resolve this complaint that was filed under Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. § 2000d et seq., and its implementing regulation at 34 C.F.R. Part 100, which prohibits discrimination on the basis of race, color, or national origin in any program or activity receiving Federal financial assistance.
Before OCR completed its investigation, the University requested to voluntarily resolve this complaint pursuant to Section 302 of OCR’s Case Processing Manual. OCR has not made any conclusions of law or issued a final determination with respect to this complaint. While the University agrees to take the following actions, nothing contained in this Agreement shall be construed as an admission on the part of the University to the allegations in the complaint.

1. The University will develop a plan and a proposed timeline for ensuring that the James E. McLeod Honors & Awards Program and all race-restricted financial aid programs administered by the University or administered on behalf of the University are revised to ensure that students are eligible to compete for such programs without regard to race, color or national origin. “Race-restricted” means any program that restricts eligibility exclusively on the basis of race, color or national origin.

2. Reporting Requirements:

(a) By December 20, 2019, the University will provide OCR a copy of the plan and timeline it developed pursuant to this Agreement;

(b) By January 31, 2020, the University will adopt and begin implementing the plan developed pursuant to this Agreement; and

(c) The University will notify OCR in writing within 30 calendar days of successfully completing the plan developed pursuant to this Agreement.

The University understands that by signing this Agreement, it agrees to provide data and other information in a timely manner in accordance with the reporting requirements of this Agreement and that all actions taken to comply with the requirements of the Agreement are subject to OCR’s review. Further, the University understands that during the monitoring of this Agreement, if necessary, OCR may visit the University, interview staff and students, and request such additional reports or data as are necessary for OCR to determine whether the University has fulfilled the terms of this Agreement and is in compliance with the regulations implementing Title VI, which were at issue in this case. Upon completion of the obligations under this Agreement, OCR shall close this case.

The University understands and acknowledges that OCR may initiate administrative enforcement or judicial proceedings to enforce the specific terms and obligations of this Agreement. Before
initiating administrative enforcement (34 C.F.R. §§ 100.9, 100.10) or judicial proceedings to enforce this Agreement, OCR will give the University written notice of the alleged breach and sixty (60) calendar days to cure the alleged breach.

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