The Podberesky Case and Race-Based Financial Aid

Abstract

The United States Supreme Court's decision of May 23, 1995 not to grant certiorari and to let stand a federal court of appeal's decision in Podberesky v Kirwin (1994) made headlines across the nation. The Supreme. Court has let stand a lower court's findings that a race-exclusive scholarship, awarded only to African-Americans at the University of Maryland, violates the 14th Amendment to the US. Constitution and Title VI of the Civil Rights Act of 1964.1 While the decision is legally binding only in the jurisdiction of the Court of Appeals for the Fourth Circuit (the states of Maryland, North Carolina, South Carolina, Virginia, and West Virginia), it does establish a significant legal precedent. On the other hand, Department of Education guidelines, issued in February 1994, advise that race-exclusive scholarships are legal if they are designed to remedy past discrimination or to promote diversity. (Federal Register, 1994). Yet recent legal decisions have made it increasingly difficult to prove the existence of present effects of past discrimination, thereby justifying remedies, such as race-based financial aid. Financial aid administrators now wonder how to administer institutional aid programs. Colleges and universities are being advised by the American Council on Education, "don't do anything different from what you are doing." (Jaschik, June 2, 1995, p. A25). But Richard Samp of the Washington Legal Foundation (and Daniel Podberesky's attorney) states, "it would be 'virtually impossible' for colleges to meet the legal standard set by the Fourth Circuit to justify minority scholarships," and "it will take only a few multi-million-dollar [damage] awards for schools to start thinking differently." (Jaschik, June 2, 1995, p. A25). The purpose of this article is to review the Podberesky decision and to discuss the implications of that decision on race-based financial aid awards.