BY ANITA STIEFEL
MANAGING EDITOR
AUBURN — On July 23, Auburn University administrators received an email from a Texas-based legal group claiming the university’s scholarships aimed at increasing a racial diversity are illegal.
“We write to you today to inform you that it appears that Auburn University and its supporting foundation maintain and administer illegal, race-based scholarships,” read the letter, sent from Daniel Morenoff, executive director of The American Civil Rights Project (www.americancivilrightsproject.org), to AU President Christopher B. Roberts, Provost & Senior VP of Academic Affairs Vini Nathan and Foundation Board chair Beth Thorne Stukes.
“The American Civil Rights Project is a public-interest law firm that… exists to protect and where necessary — as is the case on many of the nation’s college campuses — restore the primacy of all Americans’ shared civil rights,” the letter stated.
“Public universities may not give or withhold benefits based on students’ skin color. This follows in part from the Fourteenth Amendment’s Equal Protection Clause, which forbids all governmental entities from engaging in racial discrimination. Title VI of the Civil Rights Act of 1964 extends the same prohibition to any institution, public or private, that receives federal funds (including almost all American universities). That statute ‘prohibits a recipient of federal funds from intentionally treating one person worse than another similarly situated person because of his race.’
“These equal-protection principles most clearly prohibit public schools, along with private schools that accept federal funding, from considering race during the admissions process. The same principles equally prohibit the same entities from maintaining race-based scholarships. To the extent those scholarships are administered through contracts, [the law] also prohibits any decision by any party to contract or fail to contract with a counterparty based on their race. Nonetheless, Auburn appears to continue to award race-based scholarships, either alone or through its nominally private foundation,” the letter stated.
“As recently as April, the Auburn University Scholarship Opportunity Management (AUSOM) reflected 64 scholarships either openly preferring or expressly limiting their benefits to only those ‘from underrepresented groups.’ While the university has seemingly stripped that search functionality from the AUSOM website, the scholarships themselves remain on the AUSOM page. For example (and without our purporting to have identified all such examples), the AUSOM page continues to describe each of the following scholarships just as it did previously, with each maintaining racial preferences or expressly racial criteria for eligibility:
- Alabama Power/Southern Company Minority Annual Scholarship (“This scholarship is for the purpose of increasing the level of diversity at AU; therefore, recipients shall be from underrepresented groups identified by AU’s Office of Enrollment Services.”)
- Black Alumni Council Dr. Harold A. Franklin Memorial Endowed Scholarship (“the purpose of this scholarship is to support the University’s goal of promoting diversity, equity and inclusion among its student body, which is key to its educational mission…. [I]ndividual consideration will be given to the applicant’s socioeconomic background, educational background and/or experience … so long as this consideration promotes the goal of obtaining the educational benefits of diversity.”)
- Charles Barkley Endowed Scholarship (“This scholarship is for the purpose of increasing the level of diversity at AU; therefore, recipients shall be from underrepresented groups identified by AU’s Office of Enrollment Services.”)
- Dr. H. William Allsup Endowed Scholarship (“Must be a first-year student enrolled in the College of Sciences and Mathematics who has been named a National Merit, National Achievement or National Hispanic Finalist or Semi-Finalist or demonstrates academic excellence.”)
- Dr. Roderick and Janice Perry Annual Scholarship (“The purpose of this scholarship is to support the University’s goal of promoting diversity, equity and inclusion among its student body, which is key to its educational mission…. [I]ndividual consideration will be given to the applicant’s socioeconomic background, educational background and/or experience in or commitment to working with historically underrepresented groups or in diverse environments, so long as this consideration promotes the goal of obtaining the educational benefits of diversity.”)
- Louis Stokes Alliance for Minority Participation Annual Scholarship (“This scholarship is for the purpose of increasing the level of diversity at AU; therefore, recipients shall be from underrepresented groups identified by AU’s Office of Enrollment Services.”)
- Pharmacy Inclusion and Diversity Annual Fund for Excellence (“This scholarship is for the purpose of increasing the level of diversity at AU; therefore, recipients shall be from underrepresented groups identified by AU’s Office of Enrollment Services.”)
“Similarly, the AUSOM page continues to reflect a host of scholarships incorporating either preferences or express eligibility screens tied to membership in racially-defined student organizations. Again, by way of example (and without our purporting to have identified all such examples), the AUSOM page continues to so describe the following scholarships: - African American Alumni Endowed Scholarship (“preference to members of the AU Chapter of Minorities in Agriculture, Natural Resources and Related Sciences”)
- Casey Robinson Troutman Endowed Scholarship (“preference to students … who are … members of the National Society of Black Engineers or Center for Inclusive Engineering Excellence”)
- Epiphany Annual Scholarship (“preference to members of the Black Student Union”)
- James B. Woods Endowed Scholarship (“preference to students who [are] members of the Auburn University approved student organization National Society of Black Engineers or Black Student Union.”)
- Janice Duke James Soaring Eagle Diversity Endowed Scholarship (“preference given to students … who … are members of the Center for Inclusive Engineering Excellence or the Auburn University approved student organization National Society of Black Engineers”)
- Jay and Carol Harris Annual Scholarship (“Preference is given to students actively involved in the Auburn University-approved student organization Black Student Union”)
- Mauldin & Jenkins Annual Scholarship for Diversity (“preference to members of the Auburn University-approved student organization National Association of Black Accountants.”)
- Patricia Hartley Bailey Endowed Scholarship (“preference to members of the Center for Inclusive Engineering Excellence or the Auburn University approved student organization National Society of Black Engineers or Society of Hispanic Professional Engineers.”)
- Pay It Forward Annual Scholarship (“preference to Alabama residents who are members of the Auburn University-approved Black Student Union”)
- Regenia Sanders Ever Auburn Endowed Scholarship (“preference to members of the Auburn University approved student organization National Society of Black Engineers.”)
“It is worth noting that, in this admittedly small sample, more than half (9/17) of the identified scholarships are ‘endowed.’ This at least implies that the Auburn University Foundation administers (or participates in the administration of) these discriminatory scholarships,” the letter states.
“It is unclear what a good-faith explanation might be for Auburn simultaneously stripping from the AUSOM page the functionality to easily identify these scholarships, while seemingly retaining the scholarships themselves and their race-discriminatory criteria. Perhaps the scholarships are no longer available through Auburn or its foundation and the school has simply not yet taken down the separate pages for each discriminatory scholarship. However, their continued presence on the public-facing university website leaves that explanation doubtful. Perhaps, instead, the school and its foundation are suppressing the publicly-available evidence of their ongoing, intentional, race-based scholarship discrimination.
“All told, publicly available records provide grounds for serious concern regarding whether Auburn and its supporting foundation are violating federal law by offering race-based scholarships. More broadly, we suspect the same patterns would emerge from a closer examination of the state’s other public schools,” the letter states.
“It makes no difference whether Auburn is offering these scholarships directly or through its nominally private, supporting foundation. Either way, the scholarships are illegal. When state officials and private actors willfully engage in “joint activity” that discriminates on the basis of race, they violate the Equal Protection Clause. And while the question whether private actions count as state action entails a “necessarily fact-bound inquiry,” the publicly available facts, by themselves, establish the requisite degree of joint activity.
“The courts of Alabama have found that nominally separate institutions existing ‘to receive and disburse funds’ to ‘promote’ state universities are ‘the alter ego of the University.’ This aptly describes the Auburn University Foundation,” the letter states. “When such foundations receive funding for and then operate race-based scholarships solely for the students of their affiliated public institutions, the foundations are accepting and offering race-based scholarships for or in conjunction with their universities. In the particular circumstances our letter addresses, Auburn bolsters its joint action both by assisting the foundation’s fundraising and by directing students to the race-based scholarships that its foundation offers. Moreover, based on the ACR Project’s experience, we suspect that far more evidence of joint action lurks beneath the publicly available facts.
“A lawsuit filed just last week in California, Californians for Equal Rights Foundation v. University of Cal. Bd. of Regents, S.D. Cal. Case No. 3:25-cv-01808, raises a number of additional wrinkles. Congress specifically outlawed conspiracies to deny Americans their civil rights in the 1860s. That prohibition (now codified at 42 U.S.C. § 1985) arose from the same statute that created 42 U.S.C. § 1981. The California suit highlights that these laws apply to a public university conspiring with a foundation to violate equal protection through racially discriminatory scholarships administered through contracts. We add that every U.S. Court of Appeals to have considered the matter has concluded that this statute makes each individual who participates in a violation of § 1981 personally liable for the resulting damages — very much including the directors of nonprofits adopting the policy at issue. It is overwhelmingly likely that the same would be true for the directors responsible for a conspiracy to violate the same statute. This means that, should litigation become necessary, not just Auburn and the Auburn University Foundation, but each of their directors, personally, would likely be liable for the damages done,” the letter states.
“We are open to litigating the matter, if that becomes necessary. For that reason, we must ask that you and the foundation preserve all related records recording communications related to these matters, including those internal to the university, internal to the foundation, between the university and the foundation, between the university and students and between the foundation and its members, donors or students. However, to the extent Auburn and its foundation stop discriminating on the basis of race, such litigation would be unnecessary.”
The letter is signed by Morenoff and Benjamin D. DuPré of McLure & Associates, a Montgomery law firm serving as co-counsel, and copied to Gov. Kay Ivey and Alabama Attorney General Steve Marshall.
In a press release, DuPré explained why Auburn’s cooperation with the Foundation cannot save the discriminatory scholarships: “When state officials and private actors willfully engage in ‘joint activity’ that discriminates on the basis of race, they violate the Equal Protection Clause. Auburn and the Auburn Foundation should be promoting the Auburn Creed’s belief in ‘obedience to law because it protects the rights of all,’ instead of funding racial preferences for a few.”
Morenoff went further: “Alabama courts have long recognized that captive foundations are alter egos of their schools. Even if they hadn’t, federal law can’t so easily be defeated by legal fictions. Congress and the Constitution barred schools from both racially discriminating and from conspiring to racially discriminate.”
