Towards an Establishment Clause Theory of Race-Based Allocation after Grutter: Administering Race-Conscious Financial Aid


The novel application of the Establishment Clause doctrine by way of analogy to race0based financial aid after Grutter and Grats, while not identical, speaks to real issue of neutrality that is implicit in the debate of administering race-based scholarships that should be truthfully acknowledged. There is no concern about improper university indoctrination of race as the Grutter court has already established race-based diversity as worthy of a compelling state interest. Moreover, there is no concern that a college or university would establish an imprimatur on race-based scholarships merely or solely because it identifies potential candidates meeting specified eligibility criteria which have been established not by the university, but by private donors. Although on its face such funds are not neutral to race in the same way funds were facially neutral to religion in Zelman, it is clear that the private choices of donors, like parents, provide a theoretical basis to “immunize” universities from liability. In today’s day and age, it is exceedingly difficult to justify race-based/race-exclusive scholarships, particularly in light of the Bollinger cases. Conversely, race-based aid is the most effective means to achieve underrepresented racial diversity of Native Americans, native Blacks and non-white Latinos. These diametrically opposed and unyielding realities will mean that well intentioned universities will now have to code aid to correlate to racial characteristics such as sickle cell anemia in order to avoid frustrating its institutional mission-driven diversity they have come to value. Race-based aid should be distinguished for a number of doctrinal and policy reasons from admissions. If not, form will triumph over substance in the allocation of financial aid to racial minorities through disguised and contrived correlations that only reflect the enduring significance of race.


Civil Rights and Discrimination | Constitutional Law | Education Law | Jurisprudence | Law and Society

Date of this Version

October 2004