President Trump Was Ill-Advised by the Suggestion that HBCUs are Race-or-Ethnicity-Based Institutions or Minority-serving Institutions. They are Not and Cannot Be Held to Constitutional “Strict Scrutiny”
When President Trump recently suggested that his Administration might not continue programs such as the 25-year Historically Black Colleges and Universities (HBCUs) Capital Financing Program because it might be unconstitutional, he evidenced a misunderstanding about HBCUs held by many, including some champions and alumni of HBCUs. Many assume that because Congress defined Historically Black Colleges and Universities in part based on their mission of educating the progeny of the American Slave System—African Americans—they are institutions for blacks and that they are Minority-serving Institutions. Neither is the case. I write to clarify the erroneous notion that HBCUs are race-or ethnicity-based institutions and therefore subject to “strict scrutiny” in the review of their actions, programs and services. I write as the 20-year pro bono counsel for NAFEO, and now President & CEO of this 48-year old national membership and advocacy association of the nation’s 106 public, private, land-grant, 2- and 4-year, undergraduate, graduate and professional HBCUs and emerging PBIs–“the voice for blacks in higher education.”
Since their founding, HBCUs have been open to, welcoming and supportive of persons from all races, ethnicities, religions, and both genders except for the gender-specific HBCUs. Their diversity data bear out their commitment to and practices of including persons without regard to non-bona fide criteria. HBCUs enroll roughly 30% of non-African American students. Their faculty is more than 40% non-African American. Today 5 HBCUs are more than 50% non-African American. At least one is majority Hispanic-serving. One is being shepherded by a White female president.
The misunderstanding about a possible Constitutional violation in continuing to support the HBCU Capita Financing Program is based on Congress’ naming of this richly diverse group of America’s quintessential colleges and universities as “Historically Black Colleges and Universities.” It suggests to some that the institutions are for blacks and not others, or that blacks are provided preferences at these institutions. Neither is the case.
HBCUs were mostly founded just after the Civil War at a time when for the most part African American could not attend historically White colleges and universities, like Harvard, an historically wealthy White male institution. Congress defined HBCUs in part based on the common aspect of their diverse missions, namely, educating African Americans. But HBCUs were not and are not now race-or ethnicity-based institutions; not Minority-serving Institutions. HBCUs are race-neutral. They have no threshold or specific percentage of FTEs of a certain race or ethnicity, and therefore, are not a “suspect classification.” Because they have no race criterion and no “suspect classification” they cannot legally be held to the “strict scrutiny standard” of review required by the Constitution when there are “suspect classifications.” As non-race-based, and indeed, race neutral institutions, a review of any legislation or regulation, legislative or regulatory fiat or action regarding support for HBCUs must be made under the “arbitrary and capricious” standard of review set forth in the Administrative Procedure Act (APA). The APA requires that in order to set aside a law, policy, procedure, practice, or agency action- in matters in which there is no “suspect classification,” the court must conclude that the regulation is, “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law.”
In the case of the HBCU Capital Financing Program, there is an overabundance of evidence, put before Congress every time the Higher Education Act is reauthorized, that the return on investment in the HBCU Capital Financing Program far exceeds the capital outlay. For example, the expected $20M investment in the HBCU Capital Financing Program, should yield $280M in loans. The investment provides insurance on bonds to finance construction, rehabilitation, and the refinancing of HBCU facilities, much of which would be impossible without the financing, owing to the small size of their endowments, roughly one-eighth (1/8th ) the average size of endowments of historically White colleges or universities, and the attendant inability of many HBCUs to access the best loan terms and conditions.
For President Trump to withdraw from the HBCU Capital Financing Program in the absence of one iota of evidence or any factual suggestion that HBCUs are race- or ethnicity-based would be devastating to these equal educational opportunity institutions to whose presidents and chancellors President Trump pledged the largest investments in their history. It would also be inimical to the realization of this Administration’s goal of launching what we hope will be the biggest investment in recent times in revitalizing American urban and rural areas of high distress, educating, training, and putting their residents to work. It would likewise decrease the likelihood of the Administration meeting its goals of restoring roads, bridges, tunnels and airports.
To strengthen urban areas of highest distress and lowest attainment, the nation must leverage the resources of the anchor institutions in these communities, such as HBCUs. Most HBCUs are the economic engines in their communities. They are by-and-large located in the “belly of the beast”—in areas of least advantage in both urban and rural areas. The short-term economic impact of HBCUs is $13 billion. They create roughly 188,000 full and part-time jobs. HBCUs have been leading in revitalizing their service communities. They possess professors, researchers, centers of excellence, medical and other human needs centers, and the wide range of experts in disciplines necessary for America’s urban and rural communities to thrive.
The HUD University Community Fund that was zeroed out several years ago was helping HBCUs and their Community Development Corporations to accelerate their efforts at revitalizing their service areas, building housing, incubating small businesses, offering health, human needs, academic enrichment, cultural, athletic and religious services to those in surrounding areas. In rural areas, due to their strengthening under the HBCU Capital Financing Program, HBCUs were not only maintaining their enrollments in an increasingly competitive market, but they were also offering those in their service communities the facilities and environments necessary for students, universities and communities to thrive and grow strong. The HBCUs in rural and remote areas were serving as providers of water, sewer, electrical, public safety and first responders to the neighboring communities—some of the most under-resourced communities in America. Ending of the HBCU University Community Fund decreased the ability for some HBCUs to continue their work in these areas. Ending the HBCU Capital Financing Program would place many HBCUs is a perilous state and cause increased decay, crime, unemployment, pain and polarization in their service communities.
HBCUs have in place courses, programs and services to abate crime, blight, vandalism, loss of neighbors, friends, and loss of hope in the HBCU service areas. Many HBCUs are preparing the nation’s foremost engineers, architects, community and economic development professionals. Others are providing training, goods and services, opportunities and optimism to the most distressed communities in America.
HBCUs want and they are poised to partner with the Trump Administration to assist in realizing its economic stimulus, infrastructure, urban and rural community and economic development initiatives as the epicenters. They cannot do this if the Administration gratuitously ends one of the most effective and efficient federal programs to support HBCUs and their service areas.
NAFEO and I look forward to meeting with Secretary DeVos, her senior executive, policy, and legal advisers, members of the White House Domestic Policy Office, Reverend Manigault, Director of Communications for Office of the Public Liaison and an HBCU alumna, as well as others who assist in shaping President Trump’s opinion on matters involving HBCUs, including Members on both sides of the congressional aisle in both chambers. I also look forward to President Trump convening his Board of Advisers on HBCUs, and his HBCU Capital Financing Board where the Administration will most assuredly receive wise counsel on these and other important matters involving HBCUs.
NAFEO is the 501(c) (3)-membership association of the nation’s 106 HBCUs and roughly 80 PBIs. NAFEO serves as “the voice for blacks in higher education.” NAFEO members represent more than 700,000 students, 70,000 faculty, and 7 million alumni worldwide. HBCUs have a $13 billion short-term economic impact. They graduate 50% of African American public school teaching professionals; more than 40% of African Americans who get advanced degrees in the sciences, technology, engineering, and mathematics (STEM); 60% of African American health professionals; and growing percentages of African Americans in sustainability and Homeland Security professions, the arts, and humanities. Learn more at https://www.nafeonation.org/