State action and race discrimination in accrediting agencies

William Funk funk at
Fri Feb 22 14:17:20 PST 2008

The National Assn of Scholars letter states "Minority-only fellowships have
been successfully challenged by the Center for Equal Opportunity on a number
of American college and university campuses."  I couldn't find any federal
cases on Westlaw.  Is anyone familiar with federal court decisions finding
minority-only fellowships or scholarships a violation of Title VI or the
Equal Protection Clause?
Bill Funk
Lewis & Clark Law School  

> -----Original Message-----
> From: conlawprof-bounces at [mailto:conlawprof-
> bounces at] On Behalf Of Volokh, Eugene
> Sent: Friday, February 22, 2008 11:24 AM
> To: Conlawprof at
> Subject: State action and race discrimination in accrediting agencies
> 	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
> 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 (
> 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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