ACR Project Warns Auburn University & the Auburn University Foundation of the Unconstitutionality of Their Race-Based Scholarships
Today we warned Auburn University and the Auburn University Foundation (the “AUF”) that their racially exclusive scholarships violate the U.S. Constitution and Title VI of the Civil Rights Act, among other federal civil rights laws.
The Supreme Court confirmed in Students for Fair Admissions v. Harvard (2023) that schools may not racially discriminate, even in admissions policies and practices. That ruling has obvious implications for the ability of universities either operated by the states or receiving federal funding to continue to administer race-based scholarships. Auburn is both. Nonetheless, Auburn runs many race-exclusive scholarships: the ACR Project’s warning letter documents 17.
Apparently to avoid SFFA v. Harvard’s implications, Auburn seemingly administers its race-exclusive scholarships through its “supporting foundation.” Perhaps it hopes to dodge federal law, arguing that (unlike Auburn) AUF is a non-state entity receiving no federal money.
Our Alabama co-counsel is Ben DuPré of Montgomery law firm McLure and Associates. He explained why Auburn’s cooperation with AUF cannot save the discriminatory scholarships. “When state officials and private actors willfully engage in ‘joint activity’ that discriminates on the basis of race, they violate the Equal Protection Clause.” DuPré added, “Auburn and the Auburn Foundation should be promoting the Auburn Creed’s belief in ‘obedience to law because it protects the rights of all,’ instead of funding racial preferences for a few.”
Our ED Dan Morenoff went further. “Alabama courts have long recognized that captive foundations are alter egos of their schools. Even if they hadn’t, federal law can’t so easily be defeated by legal fictions. Congress and the Constitution have barred schools from both racially discriminating and from conspiring to racially discriminate.”
If Auburn and the Auburn University Foundation do not voluntarily stop discriminating on the basis of race, the ACR Project anticipates bringing the litigation necessary for the courts to make them do so.