ACR Project Alerts Congress to Unconstitutional MSI Programs

Today, the ACR Project alerted the House and Senate to the clear unconstitutionality of programs they should defund and repeal. ACR Project Chairman Gail Heriot, E.D. Dan Morenoff, and Director Peter Kirsanow signed the letters, which you can read, below. They concern the Minority Serving Institutions (“MSI”) programs.

Congress formed the MSI programs decades ago.  They shovel about a billion dollars annually to colleges and universities. Each requires schools to annually certify that a set percentage of students fall into a particular racial or ethnic group. The MSI programs expressly condition federal funding on racial balance of recipient institutions.

Note how the MSI programs differ from the older Historically Black Colleges & Universities (“HBCU”) program. The MSI programs disqualify schools in the here and now based on the racial-mix of their current students. The HBCU program qualifies schools solely based on the “H” (“Historically”). It provides funding to schools that existed prior to the fall of Jim Crow that served Black Americans during segregation. Congress continued to fund HBCUs after the passage of the Civil Rights Act on the premise that these schools suffered from massive underinvestment prior to Jim Crow’s fall and after. Congress premises eligibility for HBCU funding on the theory that continued subsidies remedy past discrimination.  That includes discrimination by the federal government. There is no reason to view HBCU funding as encouraging race discrimination in the modern era. Unlike MSIs, the federal government does not require HBCUs to maintain any particular racial mix among their students, and a few, like Bluefield State University in West Virginia, have since acquired enrolled majorities of other races. And research shows that HBCUs don’t suffer the same racial gaps in academic credentials that other selective institutions often do.

Members of Congress take an oath to uphold the Constitution.  They, as much as the Courts, must strive to eliminate unconstitutional laws and practices.  Congress could and should put a stop to the MSI programs simply by defunding them–which would allow application of the streamlined reconciliation process (with no filibuster).  Congress should nonetheless repeal the programs’ authorization outright, preventing a future Congress form restoring their funding.

If Congress wishes to replace the MSI programs with alternatives better serving low-income students or the needs of English-language learners, nothing in the law would prevent it.  Indeed, with the Manhattan Institute, the ACR Project prepared model legislation affording a variety of options.