10. EDUCATION AND HHS POLICIES & PRACTICES
10.1 Overview
Several DoEd and HHS programs are targeted on the basis of race,
gender or disability. Most of these are programs designed to increase
the representation of minorities or women in certain professions
or fields; others support institutions that have a high enrollment
of racial and ethnic minorities. Federally funded minority- or
gender-targeted scholarships are one strategy for accomplishing
increased representation of minorities or women in certain professions.
However, most such scholarships are funded by non-federal public
and private sources (e.g., institutions, private foundations,
and state and local governments) and are not, therefore, "federal
programs." Federal policy is formally relevant only because
such efforts must comply with federal civil rights laws when institutions
are recipients of federal financial assistance. Finally, it bears
mention that most of these programs at DoEd and HHS are targeted
by race or gender on the basis of express Congressional authorization
to use such criteria, rather than based on some more general delegation
of authority.
10.2 Policies & Practices.
10.2.1 Programs to Increase Representation in Certain Fields
DoEd, HHS and the National Service Foundation (NSF) operate several
programs that have as their primary purpose increasing the representation
of underrepresented groups in certain fields and occupations.
The justifications for addressing this underrepresentation extend
beyond distributive justice to remedying the specific continuing
effects of discrimination in some institutions and fields, improving
the quality of participating institutions by supporting the diversity
critical to that quality, and securing for the nation the broad
pool of human resources needed for competitiveness and progress
in the decades ahead. Almost all of this support is provided as
assistance to institutions, rather than direct assistance to individuals.
Many of these programs are minority- and/or gender-targeted, that
is, they employ group membership (or an institution's attention
to targeted groups) as a condition of eligibility. Illustrative
examples include:
- The Program To Encourage Minority Students to Become
Teachers:
This DoEd program provides grants to institutions of higher education
with schools of education, and is designed to: (1) improve recruitment
and training opportunities in education for minority individuals,
including minority language individuals; (2) increase the number
of minority teachers in elementary and secondary education; and
(3) identify and encourage minority students in the 7th through
12th grades to aspire to and prepare for careers in elementary
and secondary school teaching. The program prepares and places
minority students as teachers in elementary or secondary schools
with at least 50 percent minority enrollment, including urban
and rural public or private nonprofit schools.
- The Faculty Development Fellowship Program: This
DoEd program provides grants to institutions that have a "demonstrated
record of enhancing the access to [graduate education for] individuals
from underrepresented groups." The grants support fellowships
for the continuing education of minority faculty members, defined
by statute to include "African-Americans, Asian Americans,
Hispanics, Native Americans, Pacific Islanders, and Native Hawaiians."
- Institute for International Public Policy: This
DoEd program is designed to increase significantly the number
of African Americans and other underrepresented minorities in
international service, including private international voluntary
organizations and the foreign service of the United States. It
provides a single grant to a consortium of higher education institutions
to establish and administer the Institute.
- National Science Foundation Programs: The
NSF administers programs designed to address underrepresentation
of women and minorities in the fields of science, engineering,
and mathematics. For example, the NSF funds the Graduate Fellowships
for Women in Engineering and Computer and Information Science
Program, which is designed to increase the numbers of women entering
these two fields. This specific program provides funding to individuals;
however, some NSF programs direct their support to institutions.
- National Institutes of Health (NIH) Programs: Pursuant
to statutory direction to "increase the number of women and
individuals from disadvantaged backgrounds (including racial and
ethnic minorities)," NIH (part of HHS) supports underrepresented
minorities in research and education programs. This was approved
by Congress in the 1993 NIH Revitalization Act. Most of these
programs are minority-targeted, although that is not expressly
required in every statute. Examples include:
- National Center for Research Resources (NCCR) Minority Initiative
provides grants to high schools to support underrepresented minorities
interested in certain natural sciences. The program leaves to
the school to determine which "ethnic or racial group[s are]
underrepresented in biomedical or behavioral research." The
program description notes that nationally, Black Americans, Hispanic
Americans, Native Americans and Pacific Islanders, are underrepresented
in these fields.
- Minority Predoctoral Fellowship Program supports individual
Ph.D. and M.D./Ph.D. candidates who are members of groups underrepresented
in the biomedical sciences. The applicant's institution defines
which groups are eligible, but NIH gives "priority consideration"
to "African Americans, Hispanics, Native Americans Alaskan
Natives, and Pacific Islanders." This program provides funding
to institutions. The institutions then administer the program
to a large degree, "tailoring" it to their needs.
HHS also administers programs that target the "disadvantaged."
HHS defines "disadvantage" in race- and gender-neutral
terms; however, from year to year, HHS sets funding priorities
that may use, for example, race or ethnicity as one of several
factors in funding, or that may rely instead on outreach.
- Federal Health Professions Education Programs: HHS
currently administers over 40 programs concerning the education
of health professionals. Most of these programs are designed to
assist "disadvantaged populations" and are race- and
gender-neutral. These programs serve large percentages of underrepresented
minorities. For example:
- HHS' Scholarships for Disadvantaged Students:
This program provides grants to institutions that serve students
from "disadvantaged backgrounds,"
(90) defined by HHS regulations
as students from low-income families or "from environment[s]
that ha[ve] inhibited the individual from obtaining the knowledge,
skill or abilities required to enroll in . . . a health professions
school." (91)
Under this program, special statutory consideration
is directed to institutions with underrepresented minority enrollment
in excess of the national average. Of the 7,500 students who participated
in the Scholarships for Disadvantaged Students (SDS) program,
more than half were underrepresented minorities.
- Of the 108 participants in the Disadvantaged Health Professions
Faculty Loan Repayment Program, 77% are African-American,
11% Hispanic, and 11% disadvantaged whites. This program encourages
graduate students from disadvantaged backgrounds, including Caucasians,
to become teachers, helping them to pay-off loans, if they agree
to become Professors.
[Note: The Administration recently proposed consolidating
these programs into five "clusters"; Senators Kassebaum
and Kennedy have co-sponsored a similar measure. One of the clusters
addresses "minority and disadvantaged training;" another
addresses diversity in nurse training programs.]
While the measures in the following three subsections lie outside
the focus of this Review, we mention them by way of comparison
to note the variety of efforts designed to promote inclusion.
10.2.2 Support for Minority Institutions
A second set of programs provide targeted assistance to institutions
that serve (or historically have served) a high proportion of
minorities. These efforts include:
- Support for HBCUs: Several DoEd and NSF programs
provide assistance to the 103 historically black colleges and
universities ("HBCUs"). Funds for these programs may
be used for a variety of purposes -- including programs to establish
development offices; strengthen physical, financial, and academic
structures and resources; purchase telecommunications equipment;
establish outreach programs; and help HBCUs gain access to private-sector
financing. (Admissions policies of these institutions are, of
course, nondiscriminatory.)
- Support for Hispanic-Serving and Minority-Serving
Institutions:
DoEd's Hispanic-Serving Institutions Program makes grants to institutions
with an enrollment of at least 25% Hispanic students (of which
50% must be low-income, first generation college students and
an additional 25% must be low-income or first generation college
students). One component, the Strengthening Institutions Program,
makes grants to institutions with at least 50 percent minority
student enrollment to enable these institutions to expand and
improve their capacities to serve minority and low-income students.
10.2.3 Programs to Serve Special Needs
DoEd also administers a number of major programs for individuals
with special needs, including programs for individuals with disabilities
and for individuals with limited proficiency in English.
- IDEA: The Individuals with Disabilities Education
Act ensures that all children with disabilities have available
to them appropriate public education designed to meet their unique
needs. This is accomplished through formula grants to states,
75% of which is passed through to local education agencies, and
through competitive grants for research, training, demonstration,
and technical assistance.
- The Rehab Act: The primary purposes of the Rehabilitation
Act are to (1) provide vocational rehabilitation services to individuals
with disabilities to prepare for gainful employment; (2) provide
independent living services to individuals with severe disabilities
to enhance their independence, productivity, and quality of life;
(3) increase the number of qualified personnel who are trained
to deliver rehabilitation services; and (4) conduct rehabilitation
research.
- Language-Related Programs: The Department also supports
a number of programs targeted to students with limited proficiency
in English. These include the Bilingual Education Act (which is
dedicated to expanding the capacity of school districts to educate
these students) and the Migrant Education Program (which provides
funds for States for supplementary education services for the
children of migrant agricultural workers and fishermen.)
10.2.4 Efforts to Ensure Access
Finally, apart from programs directly or indirectly supporting
training or outreach for individuals, DoEd and the NSF also undertake
broader activities that further equal opportunity for traditionally
underrepresented groups. These efforts include:
- WEEA: The Women's Educational Equity Act Program
promotes gender equity in education by making grants and awarding
contracts to educational agencies for research and development
of strategies to support gender equity and for projects that implement
effective gender equity policies and programs in schools. Relatedly,
the NSF's Women and Girls Program also supports programs
which develop and implement gender equity policies from the grade
school level through the graduate school level.
- Advisory Activities: Many DoEd programs establish
advisory or governing boards, councils, or panels and in many
cases, the membership of these entities is specified (or diversity
is encouraged) based on race, gender, or disability. For example,
Goals 2000 requires that local improvement plans be developed
by a panel that is "representative of the diversity of students
and the community with regard to race, language, ethnicity, gender,
disability, and socioeconomic characteristics."
10.3 Performance & Effects
Relatively few of these programs have been formally studied or
reviewed. The more significant efforts include:
- HBCUs: Since their creation in 1965, the programs supporting
HBCUs have never been thoroughly evaluated; however, in FY 1995,
Congress appropriated $1 million to evaluate support for HBCUs.
- The IDEA program has been closely examined, and the consensus
view is that this program has significantly contributed to a steady
decline in the dropout rate for children with disabilities and
an increase in their graduation rate, over the past five years.
The number of children served and the number of teachers serving
these children have also increased.
- In 1994, the GAO issued a formal evaluation of the WEEA.
Its primary finding was that the WEEA program supported direct
services to a small number of girls and women; the GAO recommended
that program resources be devoted to eliminating systematic inequitable
policies and practices in schools.
- Health Professions: In 1994, the GAO also reviewed the
various HHS programs intended to increase the representation of
underrepresented groups in the health professions. Emphasizing
that data in this area are inadequate, the study found, in relevant
part, that:
- The representation of African-Americans, Hispanics, and Native
Americans in health education and practice is increasing.
- Evidence that this increase will improve access to care in undeserved
areas is "inconclusive."
- "Evaluations ... have not conclusively linked these programs
to changes in the supply, distribution, and minority representation
of health professionals."
- However, as regards the importance of remedying the problems of
under-representation in the health professions and various research
fields, HHS credits several far more thorough published studies
and articles referenced only in passing by the GAO. These studies
indicate that: minority health professionals are considerably
more likely to work in undeserved communities;
(92) "bedside
bias"
toward minority patients is more likely to occur in institutions
where there are few minority professionals;
(93) minority
researchers
are more likely to bring special sensitivities to medical research
problems relating to minority populations and communities;
(94) and
minority professionals are more likely to provide training and
mentoring to members of minority groups.
(95)
10.4 Concerns & Complaints
These programs have generated little controversy and few complaints.
Typical of the isolated objections are:
- An East Indian student filed a Title VI complaint against Marquette
University regarding its Minority Engineering Scholars Program,
which was funded through NSF's Research Careers for Minority Students
(RCMS) program. The student charged he was discriminated against
on the basis of his national origin. NSF had earlier determined
that Asians were not underrepresented in sciences and engineering
(but that "American Indians, Blacks, Hispanics, and Native
Pacific Islanders" were). Accordingly, the Department of
Education's Office for Civil Rights (OCR) found insufficient evidence
of a Title VI violation. OCR reasoned that the NSF was authorized
by Congress to devise programs to increase minority participation
in science and engineering, and thus that the RCMS program was
not in violation of Title VI. From a broader perspective, OCR's
findings reflect the understanding that tying benefits to group
membership is not an end in itself, but must reflect the central
policy purpose of opening opportunity to groups by virtue of their
underrepresentation. Moreover, in as much as a race-conscious
program must be narrowly tailored to serve the compelling national
interest in removing barriers and broadening participation in
critical research sectors, that tailoring must recognize when
a specific minority group is no longer underrepresented.
- The HHS Scholarships for Disadvantaged Students (SDS) program
provides grants to institutions to support the recruitment and
training of disadvantaged nursing students (and does so without
a preference for race or gender). SDS regulations published in
1991 require that, in order to qualify for SDS assistance, an
institution must have at least one minority faculty member. Wichita
State University's application for an SDS grant was denied because
it did not have any minority faculty. A faculty member from the
University wrote to Senator Dole, who forwarded the letter to
HHS.
The Department replied that the minority-faculty requirement is
implicit in the authorizing legislation, which requires that a
qualifying institution have a program "for recruiting and
retaining minority faculty."
(96) It is HHS' view
that an institution
cannot "retain" minority faculty unless it has
minority faculty; that in a competitive application program, it
is reasonable to take past success at recruiting minority faculty
as evidence of commitment to serving minority students effectively;
and that 181 other institutions were able to satisfy this eligibility
condition. The faculty member argued that institutions that are
interested in serving disadvantaged students sometimes lack the
financial resources to compete for "qualified" minority
faculty.
- During a subcommittee hearing, one Representative asked the Assistant
Secretary for Postsecondary Education why the Department supports
HBCUs, which the Representative characterized as segregated institutions.
The witness responded that (i) these institutions are open to
all students; (ii) Congress chose to strengthen these institutions
because of their unique role in serving populations who were historically
denied access to postsecondary education because of their race;
and (iii) the statutory definition of HBCU does not require a
school to have a predominantly African-American student body in
order to qualify as an HBCU.
10.5 A Note on Minority-Targeted Scholarships
Minority-targeted scholarships include both (i) scholarships for
which minority status is the only requirement for eligibility
(i.e., where minority status is a necessary and sufficient condition)
and (ii) scholarships for which minority status is one of several
requirements for eligibility (i.e., where minority status is a
necessary but not sufficient condition). When public resources
or institutions are involved, such programs are subject to strict
constitutional scrutiny under Adarand and previous caselaw.
10.5.1 Current Use of Minority-targeted Scholarships
The GAO, in a 1994 study found that at the undergraduate level,
scholarships (from all funding sources) for which minority status
is the only requirement for eligibility are rare, accounting
for less than 0.25% of all scholarship monies; that scholarships
for which minority status is one of several requirements for eligibility
represent about 3% of scholarship monies; and that scholarships
for which minority status is one factor among many considered
are somewhat more common. On the other hand, DoEd officials note
that there are countless scholarship programs which are limited
to white students, at least de facto, because of some condition
on family origins, membership in some social or fraternal organization,
family affiliation with the particular school, etc.
A few GAO case studies illustrate the use of minority-exclusive
and minority-designated scholarships:
- At a small public college, less than one percent of the student
body is minority. The school initiated minority-targeted scholarships
in 1972, paying the difference between in-state and out-of-state
tuition (about $3900). The school believes these scholarships
are useful, particularly for recruiting minorities from out-of-state
(the State population is 95% white). Reacting to the Bush Administration's
1991 policy, questioning the permissibility of minority-targeted
scholarships, the school suspended its program; as a result, in
1992 only one minority student received assistance (compared to
the usual 5 or so students). (97)
- At a private law school, the student body is 8% minority. Nearly
half of the minority students receive minority-targeted aid. The
school initiated minority-targeted scholarships in 1984 as part
of a broader minority-recruitment strategy; the effort has had
significant effects: the minority representation has risen from
2% to 8%. School officials consider the scholarships "vital"
because (i) they signal the school's seriousness about diversity,
and (ii) they allow the school to compete with other schools in
order to achieve diversity benefitting that institution.
(98)
- At an undergraduate school of a private university, the student
body is 14% minority. Half of these students receive minority-targeted
assistance. The school's program (established in 1970) serves
students from "disadvantaged" backgrounds based on financial
need. Each year the program serves a few needy white students
-- officials offered the example of a student with two blind parents.
The program has been successful at recruiting minority students:
in 1969, minorities accounted for 2 percent of the student body;
in 1989, they accounted for 16%. When financing for the scholarships
declined briefly in 1972, the number of African-American students
dropped by more than 50%. (99)
10.5.2 Federal Policy
In late 1990, organizers of college football's Fiesta Bowl pledged
to set aside certain proceeds from the game to establish minority-targeted
scholarships at the participating schools. The Bush Administration's
Department of Education announced that such scholarships might
be illegal under Title VI. However, after a lengthy review and
public comment, the Department, in 1994, promulgated new policy
guidelines regarding how Title VI would be applied to minority-targeted
aid. Those rules permit the use of race as a condition of eligibility
for financial aid in order (a) to remedy past discrimination or
(b) to promote diversity, provided the measure is narrowly tailored.
A measure is "narrowly tailored" if (1) race-neutral
means would have been ineffective; (2) a less extensive or intrusive
use of race would have been ineffective; (3) the measure is of
limited extent and duration, and is applied in a flexible manner;
(4) the institution periodically reviews the continuing need for
the measure; and (5) the effect on nonbeneficiaries is sufficiently
small and diffuse so as not to unduly burden their opportunity
to receive financial aid. DoEd and DOJ believe these guidelines
satisfy the constitutional tests established by the Supreme Court.
A number of schools have been working with the Department of Education
to tailor their scholarship programs to the Department's 1994
guidelines which called for race-based scholarships to be periodically
reviewed to access their continuing justification and to determine
whether less racially exclusive means can achieve diversity goals.
For example, a community college in Florida funded scholarships
for minority students when the school was 80 percent white but
the school had not reevaluated its scholarship programs to access
whether consideration of race was still warranted. After meeting
with the Assistant Secretary of Civil Rights, the school agreed
to adopt racially nuetral need-base scholarships as a method to
continue achieving diversity in the student body without considering
race.
10.5.3 Additional Observations
In general, the Department of Education believes that there is
a virtual consensus within the higher-education community that
minority-targeted scholarships are essential to meeting schools'
diversity and remedial needs, and that race-neutral approaches
will not always be reasonably effective.
To redress the lingering effects of past discrimination, the University
of Maryland established a merit-based scholarship program (the
Banneker scholarship program) for which only African-Americans
are eligible. An Hispanic student challenged the constitutionality
of this program and a district court rejected the challenge, emphasizing
that the program was a narrowly-tailored remedy for past discrimination.
However, in Podberesky v. Kirwan,
(100) the Fourth
Circuit overturned that decision; the Supreme Court declined to review
the case.
By denying the University's request, the Supreme Court merely
declined to hear the appeal requested by the University of Maryland
in the Podberesky case. It neither ruled against race-targeted
scholarships, nor affirmed the decision of the Fourth Circuit
Court of Appeals that the University had not submitted sufficient
evidence to justify the Banneker scholarship program at issue.
The Department of Education's policy on race-targeted student
financial aid has not changed as a result of the Supreme Court's
recent action. Race-targeted student aid is legal in many circumstances
as a remedy for past discrimination or aa a tool to achieve a
diverse student body.
On the other hand, responding to the controversial nature of race-targeted
scholarships, some institutions have modified their efforts. At
present, according to HHS and DoEd, there are insufficient data
to conclude that such approaches would be acceptably effective
in producing the desired remedial and diversity benefits. Despite
the promising result in Colorado, without further experimentation
and research the risk is too great that nationwide adoption of
such measures will dilute targeted resources at a time of increasing
fiscal pressures. Such research should be undertaken expeditiously
to determine whether race-neutral alternatives will, in fact,
work.
Finally, some observers have expressed skepticism about whether
minority-targeted scholarships actually expand opportunity by
"growing the pool." These observers believe that universities
are simply bidding for a finite number of qualified minorities
and that real growth in the pool will require far more investment
in secondary and primary education, rather than simply financial
aid at the university level. Defenders of targeted programs agree
that continued efforts are needed on the investment front, but
argue that post-secondary education as a whole is far more inclusive
than it would be without these affirmative efforts. The number
of minority and women students prepared for and interested in
further education may be influenced by the degree to which genuine
opportunity is available and outreach is effective.
10.6 Conclusions and Recommendations
Do the federal government's affirmative action programs relating
to education, health and human services meet the President's tests:
do they work, and are they fair?
10.6.1 Conclusions
Does it work?
Because education is so fundamental to virtually all aspects of
social and economic opportunity in America, the federal government's
affirmative action programs in this area seek not only to deter
and remedy discrimination, but also to promote inclusion of underrepresented
groups. The fundamental problem addressed by these targeted programs
in HHS and DoEd is the continuing underrepresentation of historically
discriminated against groups in key professions and in institutions
of higher education. Agency officials and experts generally agree
that among the important factors explaining the underrepresentation
are current discrimination, past discrimination, and the lingering
effects of that past discrimination -- including direct and
indirect effects on both individuals and on institutions.
This problem remains a critical challenge because:
- Remediation: A great many institutions and professions
have never made an effective break with their history of discrimination
and exclusion. Whether one looks at the statistics on continuing
illegal discrimination, at the report of the Glass Ceiling
Commission, or at the glacial pace with which patterns of
historical exclusion are reversed in specific settings.
- Opportunity: Increasingly, educational institutions are
the engines of opportunity in the economy, and education is often
the first rung on the opportunity ladder. Ensuring the inclusion
of underrepresented groups therefore remains an invaluable tool
for making the promise of equal opportunity a reality.
- Wasting no talent: As the President has stated, the competitiveness
of our companies and economy depends upon building an inclusive
economy so that we create the opportunity and encouragement owed
every American to develop their talents to the fullest of their
potential, and use those talents productively. The inevitable
result will be stronger families, businesses and communities.
Indeed, in science, higher education and several other fields
addressed by Federal programs, studies project dangerous shortages
of talent if we continue to draw the ranks of those professions
so overwhelming from among white males only.
- Quality: Finally, there is broad agreement that diversity
is critical to the quality of certain institutions and professions.
While higher education is the most familiar example of this, the
biomedical and life sciences are another. Officials at HHS and
NIH point out that training and support for underrepresented groups
is one means, albeit very imperfect, of providing a workforce
of service providers likely to be concerned with undeserved populations.
There is an added purpose, however, in ensuring that research
agendas over time reflect the full range of society's needs: experts
state, for example, that participation of minorities and women
in biomedical research helps ensure not only that key questions
are being addressed, but that the questions are even asked in
the first place.
The evidence as to whether these particular programs meet these
goals is positive but incomplete. The participation of women and
minorities at every level of education has dramatically increased
in recent decades; these programs have played a positive role
in that progress, but it is difficult to quantify how much of
that improvement is due to affirmative action, and how much to
other societal and policy factors. The studies referred to above
indicate that program effects have been positive; however, they
also suggest more work needs to be done.
Is it fair?
We conclude that these DoEd and HHS programs have few adverse
effects on nonbeneficiaries, and that in general the criticisms
raised can be answered. Concerning minority-targeted scholarships,
for example, DoEd estimates that only 40 cents of every $1000
in Federal educational assistance funding is devoted to such targeted
programs; they should be understood as a very minor element of
an overall, balanced, opportunity strategy addressing many needy
populations and several national purposes. More broadly, these
programs serve strong national interests related to the effective
remedying of discrimination, root and branch, and the securing
of a full measure of opportunity needed to create strong institutions
and a strong economy for the future.
10.6.2 Recommendations
- Instruct the Office of Management and Budget to work with
agency heads to ensure that each agency has appropriate plans
over time to conduct continuing reviews on the effectiveness and
fairness of any program using race or gender as a condition of
eligibility or as a key factor earmarking funds.
- Instruct the Office of Management and Budget to work with
agency heads to ensure that equal opportunity objectives and measures
are included, where appropriate, in the implementation of the
Government Performance and Results Act.
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