February 18, 2007

To CIR, It's Racism

by PG

Prof. E. Volokh praises the Center for Individual Rights for filing a class-action lawsuit against Virginia Commonwealth University and Dow Jones, the sponsor of nationwide Urban Journalism Workshops. After seeing an article advertising VCU's workshop --

Richmond Times Dispatch, Feb. 26, 2006
Summer workshop calling for applicants; High school students invited to try out for journalism seminar
The 22nd Urban Journalism Workshop, designed to help high school students of various racial and ethnic backgrounds improve their journalism skills, will be held June 18-30 in Richmond. ...
The student who demonstrates the best journalism skills - taking into account improvement, quality of work, enthusiasm and other factors - will receive a $1,000 scholarship from The Times-Dispatch that can be applied to his or her college education.
-- Emily Smith was interested in applying. According to her attorney, Center for Individual Rights President Terence Pell, Smith didn't understand that race or ethnicity was part of the evaluation of applicants.
"The article said the workshop requested students from diverse racial and ethnic backgrounds," Pell said. "Diverse could mean anything.
"After talking with her parents, Emily didn't know what that meant," he said. "So they decided to apply anyway."
Pell said Smith had no reason to believe white students were not allowed. Smith also thought she might fit into the definition of a minority, either from being female or having muscular dystrophy.

Smith applied, was accepted, and then revealed in answer to a direct question that she was white, at which point she was told that she was ineligible for the program. CIR sued, VCU and Dow Jones have settled, and Smith will attend during the summer of 2007 rather than 2006. As part of the settlement, Dow Jones agreed not to consider race or ethnicity in the future, and has changed the wording on its site accordingly. Many of administrators of the programs apparently haven't been notified to do the same. The website for the workshop held at San Jose State still says, "Latino, African-American, Native-American and Asian American students are strongly encouraged to apply";
the one for NYU says it "is designed to encourage minority students to consider a career in journalism" and will admit "[t]wenty minority high school juniors and seniors";
the University of Kentucky still advertises last year's program: "This workshop is for students who will graduate in 2006, 2007 or 2008 and who are of African-American, Hispanic, Asian-American or Native American descent. ... The reporting focus for this workshop will be on sports, girls are encouraged to apply";
St. Thomas in Minnesota says, "The workshop is targeted at students of color in hopes of encouraging greater diversity in the profession."
The statement on the left sidebar of Seattle University's website is the most extensive. "The Journalism Summer Workshop seeks out talented high school students of color, interests them in the world of journalism, and establishes a pipeline as they go from high school to college. Why? There are too few professionals of color in journalism. The lack of diversity in news operations hampers the ability to be fair and accurate and to inform the public responsibly." The right sidebar includes lists of "Journalism of Color Associations" and "Ethnic Media" (where ethnic = en espanol).

CIR's complaint in the case argued that there was no "compelling reason to exclude individuals from the Workshop on the basis of race," and that even if there were a compelling reason, "the complete exclusion of applicants on the basis of race is not narrowly tailored to achieve that interest." This is Grutter/Gratz language. A racially diverse student body that would supply a racially diverse educated population for the military and private sector has been found to be a compelling state interest, and a "holistic" approach to such diversity was deemed acceptable by the Supreme Court. The settlement, however, precludes the Workshops from considering race even to the extent that Michigan Law School was approved in doing.

CIR doesn't seem to want any program that avowedly seeks to improve the representation of blacks, Latinos and Native Americans in higher education or in professional fields. Remember that one of the things colleges were told they should do instead of using race in admissions was to improve the academic credentials of the applicants they sought to admit. But now CIR is attacking that form of affirmative action -- outreach to improve the skills of underrepresented racial minorities -- as well. Pell says, "It's OK to target underrepresented people. You just can't do this based on race," but that presumably means that any program that considers race is subject to attack by CIR for unconstitutionality.

For example, a few years ago VCU started a partnership with five Historically Black Colleges and Universities (HBCU) to improve academic and research opportunities for minority undergraduate students and faculty. The goal is to "increase the number of minority health professionals and researchers nationwide, with the hope of promoting better health outcomes for underrepresented minorities... there is a significant lack of racial diversity in health care policy, administration, researchers and health practitioners."

The press release is awash in language about opportunities given on the basis of race, and should be a fertile hunting ground for CIR in new litigation: "In the past three years, UNMC [University of Nebraska Medical College] has provided summer research experience for 40 minority undergraduate students, 26 of whom are from HBCUs. Twenty-two of these students were awarded NIH minority undergraduate stipends."

Yup, this flagrant racism and reverse discrimination victimizing white students is perpetrated even by the federal government. Why are VCU and UNMC singling out HBCUs for partnership? What about the academic and research opportunities that white students and faculty need? Why isn't VCU looking to work with schools that are mostly white instead of ones that are mostly black?

(For that last question I say only VCU because even in my ventriloquized outrage, it's hard to imagine the University of Nebraska can find schools substantially whiter than itself.)

February 18, 2007 01:58 PM | TrackBack

I don't think CIR is seeking out to prevent all such programs, just those that involve state actors. There wouldn't be any problem if it was all private schools. A

lso, associations between state actors and HCBUs are less constitutionally suspect, since their racial composition is largely due to self-selection. As opposed to a system of racial preferences for students, specifically choosing certain schools to partner with is not facially discriminatory.

Anyone challenging such affiliations would have to prove that race was a sufficiently motivating factor under Village of Arlington Heights v. Metropolitan. As long as the school can find ways to justify the (obviously racially discriminatory purpose) on other grounds (i.e. economic make up of the schools, geography of the schools, history of the schools, the schools programs), that would not be excessively under or over exclusive of the schools chosen, a Plaintiff would be unlikely to succeed.

Posted by: zooba at February 19, 2007 04:58 PM


Thanks for your comment. All of the minority-targeted programs I've mentioned are by state actors, either public universities or the federal government. HBCUs by definition have been chosen on a racial consideration; if this were no part of VCU's and UNMC's decision-making, the press release probably would not have trumpeted the association with historically black colleges and universities. HBCUs racial composition isn't precisely just self-selection. These used to be the only schools African Americans could attend.

Applying Village of Arlington doesn't seem to help your point. The Court there said a racially discriminatory intent had to be shown. VCU, UNMC and NIH all clearly have a racially discriminatory intent of promoting opportunities for racial minorities. NIH targets funds specifically in this racially discriminatory manner, and VCU and UNMC avowedly are choosing schools with which to partner based on those schools' minority undergraduate and faculty and identity as historically black schools.

Posted by: PG at February 20, 2007 03:37 AM
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