The Next Step in Ending Racial Preferences in Higher Education

For decades, the higher-education establishment was allowed to do pretty much whatever it pleased. That included promoting programs and policies to benefit what were termed “underserved groups.” An array of policies sought to enroll more students from such groups, add curricular offerings aimed at them, spend more money to help them succeed, and hire more minority faculty and administrators. Congress was happy to cooperate with this, and it approved of benefits for various “minority-serving institutions” under the Higher Education Act.

The courts and the Trump administration have decided to uphold the nation’s commitment to a colorblind society. In those days, Congress approved of almost everything “progressives” did relating to higher education, and it did not matter that some students were treated as more important than others. If historically “marginalized” groups benefited while others were excluded, that was just part of advancing “social justice.” Discriminatory programs were all right so long as the discrimination seemed benign, only hurting white and Asian students a little.

The administration will not tolerate employment policies that favor applicants who check certain “diversity” boxes. Fortunately, things have changed in recent years. The courts and the Trump administration have decided to uphold the nation’s commitment to a colorblind society where government treats all citizens as equals, neither favoring nor disfavoring anyone due to race or other immutable characteristics.

In 2023, the Supreme Court held that colleges and universities that receive public funds cannot continue their policies of racial preference in choosing which students they admit. The Court ended its previous stance of deference to officials and their excuses for discrimination for or against students depending on their ancestry.

This year, the Trump administration has put schools on notice that it will not tolerate employment policies that favor applicants who check certain “diversity” boxes. It is, for example, investigating whether George Mason University has violated federal civil-rights laws with its hiring practices.

Also under attack are college and university spending programs that are not racially neutral.

In June, Tennessee’s attorney general filed a lawsuit in federal court arguing that the government’s Hispanic-Serving Institutions (HSI) program is unconstitutional, because it makes federal funds available to schools based on the happenstance of their having a sufficient number of students who have the right ethnic background—Hispanic. (I won’t go into the dubious rationality of the government’s racial classifications but instead direct interested readers to Professor David Bernstein’s illuminating book Classified: The Untold Story of Racial Classification in America.)

Tennessee’s complaint begins,

The Department of Education cannot discriminate based on race or ethnicity—even when Congress orders it to. Yet under the Higher Education Act, the Department awards grants to colleges and universities only if they enroll a certain number of Hispanic students. These so-called Hispanic-Serving Institutions are eligible for millions of federal dollars …. But the program excludes colleges and universities that fall below its arbitrary ethnic threshold of 25% Hispanic. [emphasis in original]

The complaint establishes the state’s standing to sue by showing that quite a few Tennessee universities have significant percentages of students deemed Hispanic but that, because not one reaches the 25-percent requirement, they are precluded from applying for additional funding under the HSI program. This is obviously a case of exclusion based on race and ethnicity.

Tennessee argues that the HSI program exceeds the power granted to Congress under the Spending Clause. Tennessee argues that the HSI program exceeds the power granted to Congress under the Spending Clause and does not pursue the general welfare of the nation. It should therefore be declared unconstitutional and ended.

The HSI program has also been targeted by the American Civil Rights Project (ACR Project). In a March 2025 letter (available here) to Senators Lindsay Graham and Bill Cassidy, the ACR Project’s Gail Heriot, Peter Kirsanow, and Daniel Morenoff make the case that the HSI program is unconstitutional and should be repealed by Congress:

These programs are patently unconstitutional and should therefore be repealed. Federal money is being doled out to colleges and universities based on the race or ethnicity of their students. […] If Congress had created a spending program that gave money only to colleges and universities whose student populations were at least 25% White, no one would claim that this was anything but racial discrimination. [emphasis in original]

Furthermore, the existence of the HSI program encourages schools to discriminate in favor of applicants whose names look Hispanic in order to reach the threshold. And, since the program requires that recipient schools show each year that they are at or above the 25-percent figure, the incentive to continue favoring Hispanic students is ongoing.

The letter points out that if Congress wanted to create a program narrowly tailored to assist needy students (perhaps with English-language instruction), that would be constitutionally permissible. But, as presently operated, the HSI program is sweeping, exclusionary, and incompatible with the goal of racial neutrality in public policy.

What’s going to happen?

It is hard to imagine that Congress will repeal the HSI program in the near future, but Tennessee’s lawsuit is very much alive. On July 25, the Department of Justice stated in this letter by Solicitor General D. John Sauer to House Speaker Mike Johnson that it would not defend the law. Sauer explained that, under Supreme Court precedents, “the government lacks any legitimate interest in differentiating among universities based on whether ‘a specified number of seats in each class’ are occupied by ‘individuals from the preferred ethnic groups’.” He’s right. Arbitrary racial classifications and selective benefits for some groups aren’t compatible with equality under the law.

The fact that the Justice Department will not defend the challenged section of the Higher Education Act doesn’t necessarily mean victory for Tennessee. It is possible that the courts will allow outside parties to intervene and argue that the HSI program is not unconstitutional.

But, whether that happens or not, for now the Department of Education will stop handing out grants under the program. Naturally, that has recipient schools and defenders of the old regime of endless federal spending on educational programs that supposedly help “marginalized” groups up in arms.

The ending of special funding for colleges that have an arbitrary percentage of Hispanic students is a step in the right direction. This August 26 story in Inside Higher Ed, “An Uncertain Future for HSIs,” is typical. Writer Sara Weissman quotes several HSI advocates. Nevada Democrat Dina Titus, for example, states that the move against HSI funding “is a disastrous attempt to undermine the Hispanic community … and place barriers against their success.” Such partisan rhetoric is to be expected, but the obvious retort is that racial and ethnic neutrality in higher-education funding will allow all students an equal chance at success.

Racial and ethnic neutrality in higher-education funding will allow all students an equal chance at success. There have also been substantive complaints about the ending of HSI grants. For example, in this IHE article, we read about the “Establishing Roots to Grow STEMs” program at Cal State Fullerton, which has received federal funding to help support “underserved students” who are pursuing studies in math and science. That might be a beneficial program, and we read that the university’s president, Ronald Rochon, is reaching out to alumni, donors, and industry leaders to find the money to continue it.

That is exactly the way it should be. Instead of looking to Washington for money for programs, college leaders should try to sell them to people who will objectively evaluate them and provide funding only if they see real value. College officials need to break their habit of looking to Uncle Sam for money and turn instead to parties who are spending their own money. This will eliminate the wasteful programs colleges so often get the federal government to fund and make the useful ones more efficient.

The civil-rights movement accomplished a lot of good for America by ridding us of the evil of racial discrimination against some Americans. Achieving a nation where everyone is able to succeed—or fail—based solely on his or her own merits was long overdue. Unfortunately, the movement eventually transformed away from equality by embracing discrimination in favor of certain groups. The ending of special funding for colleges and universities that have an arbitrary percentage of Hispanic students is a step in the right direction toward the goal of a colorblind education system. It is also a step in the right direction of getting the federal government out of something else it has no constitutional authority to do, namely funding higher education at all.

George Leef is director of external relations at the James G. Martin Center for Academic Renewal.