State action and race discrimination in accrediting agencies

[Robert Sheridan]

The right constitutional analysis might very well include the 5th (as  
in Bolling v. Sharpe) and 14th Amendment (as in Brown and progeny)  
guarantees of equal protection of law regardless of race or minority  
status on other ethnic grounds.

The problem seems to start with a quotation (emphasis added) from the  
CSWE web site, the acronym standing for Council on Social Worker  
Education:

"The objective of the Minority Fellowship Programs (MFP) is to educate  
ethnic minority social work professionals so that they are prepared to  
provide leadership in mental health research and in the delivery of  
mental health services. MFP does this by supporting students in  
completing their doctoral degrees in the field of social work.

Program History

In 1974, there were concerns about the limited number of minority  
scholars able to do indigenous research to improve services to  
minority communities and the limited participation of minority  
professionals in the programs of the professional associations.  An  
increase in the number of trained minority professionals would address  
both of these issues.  Therefore, CSWE was awarded a grant by the  
National Institute of Mental Health (NIMH) to increase the number of  
minority doctoral students majoring in mental health research. This  
program now prepares doctoral students to be among the next generation  
of NIMH funded mental health researchers. ...

***
I don't know what kind of research "indigenous" research is except  
that it sounds suspiciously like the kind that may have been done  
amongst the "natives,"  usually in Africa or elsewhere as seen on the  
pages of National Geographic (altho' I may be short-changing NG, for  
which apologies), of an earlier day of empire.   I don't think we're  
quite as comfortable with calling minorities in America stand-alone  
"natives" in the empire sense today.  Perhaps in 1974 the other  
natives, the ones in the ascendancy, hadn't given as much thought to  
racial affirmative action in education, although that was the year of  
Bakke in California.

One of the problems with listing purportedly eligible minority groups  
is that it immediately raises the question as to who qualifies  
especially where we have a great deal of ethnic mixing.  I'd thought  
we'd tried to get away from ethnic listing in entitlement statutes,  
such as in Crosson, the Richmond jail toilet (affirmative action in  
public contracting) case where Scalia held forth on the theme that  
we're all one America and that it doesn't do to put us into little  
ethnic boxes for the purposes of obtaining government benefits.

It looks from here as though the letter-writer, below, has a point.

Our experiment with racial categorization didn't serve us well from  
all that I've read.

rs
sfls




On Feb 22, 2008, at 11:23 AM, Volokh, Eugene wrote:

> 	Any thoughts on this letter to the Deputy Secretary of HHS from
> the National Association of Scholars?  I'm not sure what the right
> constitutional analysis would be here -- and specifically whether the
> HHS is violating the Constitution by interacting with the CSWE in  
> these
> ways (especially as to item 1) -- but I'd like to know what others
> think.  (We could assume for purposes of the discussion that the  
> factual
> allegations are accurate and ask whether the HHS's use of the CSWE in
> various ways is constitutional; or of course if people have evidence
> that the factual allegations are mistaken, that would be worth  
> noting as
> well.)  Thanks,
>
> 	Eugene
>
>
> http://www.nas.org/nas-initiatives/CSWE-initiative/CSWE_round3/Troy_ltr-
> 11feb08.pdf
>
> ...  Health and Human Services is connected to CSWE in at
> least three ways: (1) The Public Health Services Commissioned Corps
> requires that the social workers it employs have degrees from
> CSWEaccredited
> programs; (2) CSWE receives grants from the Substance Abuse
> and Mental Health Services Administration, which is part of HHS, and  
> (3)
> CSWE receives grants from the National Institute of Mental Health,  
> which
> is
> also under HHS jurisdiction. The two grants, which date back to 1974  
> and
> 1978, support CSWE's "Minority Fellowship Programs," which are  
> described
> on CSWE's website (http://www.cswe.org/CSWE/scholarships/fellowship/).
>
> Minority-only fellowships have been successfully challenged by the
> Center
> for Equal Opportunity on a number of American college and university
> campuses. The Department of Education and the Justice Department have
> also
> set the pace for opening minority-only scholarships and fellowships to
> all
> applicants. Such scholarships are blatantly discriminatory, as they
> restrict
> candidates to those of particular races and ethnic origins. I suspect
> that
> CSWE's Minority Fellowship Programs likewise rests on dubious
> legal foundations. Be that as it may, HHS is in the awkward spot of  
> not
> only funding race-specific
> scholarships but also funding those scholarships through an  
> organization
> that is, top to
> bottom, riddled with racial quotas and other forms of  
> discrimination....
>
> The CSWE bylaws require representation by members of under-represented
> groups,
> among them "women; African Americans/other Blacks; Asian Americans and
> Pacific Islanders,
> Chicano/Mexican Americans, Puerto Ricans, other Latino(a)/Hispanics;
> Native
> Americans/American Indians; persons with disabilities; and gay,  
> lesbian,
> bisexual, and
> transgender persons." To fulfill this inclusion requirement, CSWE has
> declared that "the
> Nominating Committee shall develop and maintain specific procedures
> designed to ensure the
> election of persons from historically under-represented groups on  
> slated
> and in elected bodies."
>
> In a forthcoming article, "Social Work Agonistes," in our journal,
> Academic Questions,
> Dr. David Stoesz describes the voting procedures:
>
> "CSWE's method for assuring participation of under-represented groups
> has been to
> construct ballots disallowing open nominations for positions, assuring
> that leadership positions
> are reserved for people based on their ascribed characteristics:  
> ballots
> feature two African
> Americans for an open position, two women for another, two Native
> Americans for a third, etc.
> While nominees may be added to the slate constructed by the National
> Nominating Committee,
> these are permitted only when they conform to the ascribed attributes
> required for an open
> position. In this manner CSWE has instituted a quota system of
> participation by members of
> under-represented groups."
>
> In our view, this discrimination violates Title VI of the Civil Rights
> Act, since it is part
> and parcel of CSWE's federally funded programs and activities.
> Furthermore, because CSWE
> works in an official and quasi-official way in exercising its
> accreditation authority, it is also
> violating the 14th Amendment. In all events, we would think that  
> HHS, as
> a government agency,
> would itself want to avoid working hand-in-glove with an entity that
> engages in blatant racial
> discrimination....
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