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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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Affirmative Action Review


2. History and Rationale

3. Empirical Research on Affirmative Action

4. Justifications

5. Review of the Programs

6. Office of Federal Contract Compliance

7. AA and EEO in the Military

8. Federal Civilians

9. Federal Procurement Policies and Practices

10. Education and HHS Policies

11. Selected Other Federal Policies


Appendix A

Appendix B

Appendix B Footnotes