Amy Jacobson:

So Professor Jacobson, let’s talk about these discriminatory scholarships at Western Illinois University. What’s going on there?

WAJ:

At Equal Protection Project, EqualProtect.org, we have brought dozens of claims against colleges and universities who have discriminatory programs. And usually they’re a one-off. We find one, or we get a tip, more likely, about one at a particular university. Well, we did get a tip about Southern, I’m sorry, Western Illinois University. And we started to look into it and we found 16 of them.

We found 16 scholarships there that discriminate on the basis of race, discriminate in favor of, they use various terms, sometimes they say black students, sometimes they say minority students, the different terms, but basically they discriminate on the basis of race. Some of them also discriminate on the basis of sex. I think there’s one that’s only open to black females. So we have filed a complaint with the US Department of Education over these openly discriminatory programs.

The sheer number and volume indicates to us, at least, that there is a serious problem at Western Illinois University because in all the dozens of these we filed, we’ve never found more than one or two at a university, and we found 16 here.

Proft:

So, some people may look at this story and say, well, wait a second. Like, what if I’m a successful black entrepreneur and I want to endow a scholarship in my name or my family’s name at Western Illinois University, specifically for black students to have the opportunities that I had, then what, how would that be? Well, what’s wrong with that? How would that run afoul of the law?

WAJ:

Sure. Well, this is a public university which is administering the scholarship. It doesn’t matter where the money came from. It’s promoted on their website. It’s promoted to their students. It’s administered by the school and it is open only to students of the university.

That being the case, there’s this thing in the 14th amendment called the Equal protection Clause, which is that every person is entitled to equal protection of the laws. We had a Supreme Court decision last summer about that in the context of admissions to a university. So it’s against the constitution. A public university cannot do that. It doesn’t matter where the money came. It also violates civil rights laws. It violates Illinois law.

So, you can have whatever intention you want. You can endow whatever scholarship you want, except you can’t endow a scholarship that discriminates on the basis of race or on the basis of sex.

And I think one of them even discriminates on the basis of sexual preference and gender identity because it’s not open to students who are not L-G-B-T-Q. So, this is a problem there. I don’t know what’s going on at Western Illinois, maybe they just lost sight of things. Maybe this accumulated over time, but they need to get a handle of it on it, and they need to comply with the law.

Proft:

Right. The key there is that they’re a government institution. So, I mean, so this is why something like the United Negro College Fund or other private scholarship organizations are under, you know, a different legal regime than is a government institution.

WAJ:

That’s right. And there is a case pending out there, it’s up in the 11th Circuit Court of Appeals, about whether even these private scholarships can discriminate on the basis of race, not based on the US Constitution, but there’s actually a civil rights law, post civil war, that prohibits discrimination in contracting. But that’s a different legal issue. So whether a private foundation can do this is an open legal question at this moment in time, but there’s no open legal question that a public university cannot do this.

Proft:

He is Professor William Jacobson. He’s clinical professor of law and director of the Securities Law Clinic at Cornell. He’s also the founder of legalinsurrection.com and President of the Legal Insurrection Foundation, as well as the Equal Protection Project. And again, that website, professor is?

WAJ:

Equalprotect.org,

Proft:

Equalprotect.org. Professor Jacobson, thanks as always for joining us. Appreciate it.

WAJ:

Great. Thank you.