In California, 167 colleges and universities are certified “Minority Serving Institutions (MSI),” a federal program that rewards schools that enroll certain percentages of minority students with “in-kind services, volunteerism, diverse hiring, grants and contacts.” This represents nearly a quarter of all higher education institutions in the Golden State.
The category of MSI includes Asian American and Pacific Islander Serving Institutions (AAPISIs) and Hispanic Serving Institutions (HSIs), but not Historically Black Colleges and Universities (HBCUs) or Tribal Colleges and Universities (TCUs).
To be a HSI, a status governed by Executive Order 13555, a school must be accredited and have at least 25% full-time enrollment of Hispanic undergraduate students. AAPISI was established by Executive Order 13515 for the purpose of increasing Asian-American participation in federally funded programs.
MSIs enjoy a federally bestowed advantage over non-MSI schools for having achieved demographically significant student bodies, even though the qualifying number of minority students may have vastly different individual backgrounds. For instance, some may come from wealthy, new immigrant families while others come from poverty perpetuated generationally.
Without capturing individual-level nuances, MSI programs are unfairly instituted based on crude race and ethnicity considerations.
Of the 167 MSIs in California, many are public universities governed under Proposition 209, which bans racial preferences in public education. Notably, of the 23 California State University campuses, 21 are touted as HSIs. The University of California system celebrates five of its nine undergraduate campuses as HSI-designated. These taxpayer-funded institutions use the federal MSI designation to claim exemptions from Prop. 209. They should not be allowed to do so.
Leaders of the American Civil Rights (ACR) Project– Professor Gail Heriot who is also my colleague at the Californians for Equal Rights Foundation, Mr. Peter Kirsanow who serves on the U.S. Civil Rights Commission alongside Professor Heriot, and Mr. Daniel Morenoff – are now challenging the constitutionality of MSI programs.
In their letters to Congress, the trio addressed the U.S. House Budget Committee, House Committee on Education & Workforce and their Senate counterparts. The letters went in great detail to explain why these programs are “racially and ethnically discriminatory programs [that] shovel about a billion dollars annually,” of which Hispanic Serving Institutions (HSIs) are “the largest and best funded.”
In turn, the ACR Project asks Congress to repeal these unconstitutional programs and “replace [them] with increased funding for a program that subsidizes colleges and universities that serve low-income students, or with programming to support the needs of actual English-language learners.”
The letters pointed to new model legislation developed by the ACR Project: “Enforcing the Law on Colorblind Admissions–Congress can stop unconstitutional discrimination and fund better alternatives.” Anchored on a purpose to hold the federal government accountable in following the Supreme Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College, the model legislation contains four constitutional alternatives to MSI programs:
- Abolish MSI Programs and Enhance the Pell Grant Program.
- Abolish MSI Programs and Replace Them with Grants for Higher-Education Students Learning English.
- Replace MSI Programs with Block Grants to the States.
- Replace MSI Programs with Sunset Block Grants to the States.
Such proposals to amend the Higher Education Act and fund programs based on either economic/linguistic or state/local needs are sensible.
Not only does the race/ethnicity-based requirement (i.e. having a student body that is at least 25% Hispanic) fail to satisfy the longstanding constitutional doctrine of strict scrutiny, MSI programs are also not narrowly tailored to right past wrongs. Nor are these programs a justifiable “supplement to help schools whose students are struggling with English as a second language.”
To make matters worse, the lure of more federal funding, contracts and other favors has created a counterproductive, anti-excellence incentives for many schools, such as the UC San Diego and the University of San Diego, to become obsessed with racial balancing at the expense of academic standards, as detailed in the letters.
The “Defund MSI” proposal is a necessary initiative for devising public policies to incentivize both equal treatment and merit-based government assistance for higher education. It is about time that we seriously confront the poison of race/ethno-centric policies/thinking. You can contact your congressional representatives and alert them to this important initiative.
Wenyuan Wu is executive director of Californians for Equal Rights Foundation