Education and HHS Policies


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:

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.

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:

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.

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:

10.3 Performance & Effects

Relatively few of these programs have been formally studied or reviewed. The more significant efforts include:

10.4 Concerns & Complaints

These programs have generated little controversy and few complaints. Typical of the isolated objections are:

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:

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

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

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