By Gretchen Schuldt
The Wisconsin Institute for Law and Liberty is appealing a circuit court decision preserving a scholarship program designed to increase student diversity in colleges.
WILL argues that Jefferson County Circuit Judge William F. Hue got it wrong when he said the Minority Undergraduate Retention Program, operated by the state’s Higher Education Aids Board, survived “strict scrutiny,” the most-stringent level of judicial review. The program provides grants of $250 to $2,500 per year to students who are Black, American Indian, or Hispanic, or who are former citizens of Laos, Vietnam, or Cambodia. Eligible students also must attend private, nonprofit colleges or technical colleges.
Hue found the state had compelling interests in post-enrollment racial diversity and providing financial aid to students who might not otherwise have access to it. Those interests, WILL said in a brief filed Tuesday, were “not previously recognized by other courts.”
Hue also found that no race-neutral alternative would serve the state’s interests and that the program was sufficiently temporary and was narrowly tailored because it did not take money from other aid programs, WILL said.
The state has not yet filed a reply brief.
WILL, representing five plaintiffs opposed to the program, contended in its District II Court of Appeals brief that Hue did not properly apply strict scrutiny standards. Instead, he relied on a U.S. Supreme Court case, Grutter v. Bollinger, “with a starkly different policy and some law review articles rather than the entire body of admissions case law,” WILL argued.
In Bollinger, the Supreme Court ruled that the Equal Protection Clause did not prevent the University of Michigan Law School from considering race in admissions decisions to obtain the benefits that come from a diverse student body. The court found that the school’s individualized review of student applications meant that acceptance or rejection would not be automatically based on race.
It is undisputed, WILL said in its brief, “that the Grant program excludes large swaths of students from consideration solely based on their race. The barred groups include not only Caucasian students, but students from India, China, Afghanistan, and the Middle East. A student who is not a member of one of the preferred racial groups selected by the Legislature in the 1980s is ineligible, full stop, no matter the extent of the student’s need."
WILL wrote that “In fact, appellants have located no policy in higher education or otherwise that provides a complete racial bar and still survives strict scrutiny."
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