The Equal Protection Project — founded and led by Prof. William Jacobson, law — filed a Civil Rights Complaint against the Ithaca City School District on Aug. 12, accusing the district of racially discriminating against white students by excluding them from the Students of Color United Summit 2024.
Following EPP’s complaint and a letter to the ICSD Superintendent Luvelle Brown and Board of Education President Sean Eversley Bradwell, both received racist and threatening messages, according to The Ithaca Voice. Less than 48 hours later, the ICSD emailed parents and students, apologizing for the use of “exclusionary language,” and opening up the event to all students, Fox News reported.
Since its founding in February 2023, The EPP has filed over 30 Civil Rights Complaints against education institutions with the U.S. Department of Education’s Office for Civil Rights.
Most of these complaints are against race-based scholarships, challenging the legality of the identity-based grants and fellowships in institutions including Ithaca College, Indiana University and the Massachusetts Institute of Technology.
Jacobson is long known for his conservative-leaning views on his blog, Legal Insurrection. He has been an outspoken critic of Critical Race Theory, a framework based on the premise that race is a social construct and racism is embedded in legal institutions. In February 2021, Jacobson launched CriticalRace.org, a database that provides information to parents and students about the critical race training and anti-racism initiatives seen at colleges in the U.S.
The EPP is the third project of the Legal Insurrection Foundation, a media organization started by Jacobson, following Legal Insurrection and CriticalRace.org.
Jacobson declined an interview with The Sun, instead opting to send written responses to questions.
According to Jacobson, the EPP was launched to counter what he called the “group-identity ideology” in universities, which he described through examples such as “critical race theory; intersectionality; ‘anti-racism’ and diversity, equity and inclusion.” Jacobson argued that this “group-identity ideology” compromises individual rights and dignity in favor of group identities.
“Unfortunately, the prevailing ideology on many campuses, including Cornell, in practice rejects treating students as individuals, instead treating them as proxies for identity groups,” Jacobson wrote to The Sun.
Jacobson explained that the EPP aims to challenge this “ideology” by using legal mechanisms to ensure each individual is treated equally without regard to race or ethnicity.
Jacobson emphasized the importance of people being “treated fairly and equally without regard to race or ethnicity,” which he claimed is established by the Equal Protection Clause of the 14th Amendment, the Civil Rights Act of 1964 and in the internal rules governing colleges and universities, including Cornell.
“We fight against [the group-identity ideology] by filing legal challenges that seek to hold institutions to the requirements of the law and their own set of rules,” Jacobson wrote.
Prof. Nelson Tebbe, law, a constitutional law expert, explained that the larger debate around race-based programs and affirmative action in universities centers around the two legal interpretations of the Equal Protection Clause: classification-based and anti-subordination.
“[The classification-based interpretation] is [that] any classification on the basis of race, draws a presumption of unconstitutionality,” Tebbe said. “But [in the anti-subordination interpretation,] the purpose of the equal protection clause is not to prevent classifications or to promote a colorblind sort of view of government policy, but instead to combat structural inequality on the basis of race that’s historically rooted.”
In recent years, the Supreme Court has shifted away from the race-conscious anti-subordination approach and towards classification-based interpretation — widely recognized as “anti-classification.”
Jacobson — whose thinking largely aligns with the classification-based interpretation — believes there is no structural inequality on the basis of race that warrants race-based scholarships.
“There are no systematic barriers to affordability of higher education based on skin color or ethnicity,” Jacobson wrote.
Jacobson argued that instead of promoting racial diversity, universities should seek to promote diversity of opinions and experience.
“You can achieve diversity [of viewpoint and experience] without regard to skin color or ethnicity,” Jacobson wrote.
The majority of EPP’s complaints followed the Supreme Court’s striking down race-based affirmative action in college admissions on June 29, 2023 in its Students for Fair Admissions, INC. v. President and Fellows of Harvard College ruling, citing its violation of the Equal Protection Clause of the 14th Amendment.
Prior to its ruling on affirmative action, the Supreme Court allowed for racial classifications within some specific contexts.
“Schools, especially universities, could, through their affirmative action programs, promote diversity as an educational benefit, and that was deemed by the Supreme Court, for many years, to be a good enough reason to overcome the suspicion of race-based classifications,” Tebbe said. “Now that affirmative action itself is much harder to justify, I would say these programs that have similar kinds of structures [such as race-based scholarships] would also be harder to justify.”
Educational institutions challenged by EPP found it difficult to justify their identity-based scholarships and programs.
After EPP’s complaint, Ithaca College updated the website wording of the Rashad G. Richardson “I Can Achieve” Memorial Scholarship and The African Latino Society Memorial Scholarship from “students of color at Ithaca College” to “students who exemplify leadership in programs with the BIPOC Unity Center or other programs across campus.”
According to Dave Maley, director of public relations for Ithaca College, the adjustment in the criteria for the scholarship predated EEP’s complaint.
“The web page that the Equal Protection Project cited in announcing its complaint was one that contained outdated information about the eligibility criteria for the scholarships,” Maley wrote in a statement to The Sun. “The websites for the individual scholarships had the correct descriptions of the scholarship criteria, and the page that was cited has since been updated to reflect that.”
“In over half of our challenges, the institutions have modified or eliminated their race and ethnicity-based eligibility requirements soon after receiving our complaint,” Jacobson wrote.
In the face of increasing challenges to race-based scholarships in universities, an ongoing debate on other ways to preserve diversity in educational settings continues.
Tebbe said that the explicit wording of the scholarship programs will play a crucial role in determining whether they face legal challenges.
“If the scholarship program is structured [to say] ‘The point of this is to enable people of all kinds of backgrounds to attend Indiana University, and we’re going to use it to diversify the school across a range of axes, not just race, but also gender, sexual orientation, wealth and geography,’ then I think the programs are much more likely to be upheld or at least not subject to strict scrutiny, because they wouldn’t be in the obvious or facial way racial classification,” Tebbe said.
Richard Kahlenberg, the director of housing policy and director of the American Identity Project at the Progressive Policy Institute, argued for economic class-based affirmative action and scholarships in higher education.
“I think it’s very likely that race-based scholarships won’t survive legally, and therefore universities have to think about ways to tweak their scholarship programs to achieve the important goal of economic and racial diversity,” Kahlenberg said. “In America, Black and Hispanic students are disproportionately coming from low-income backgrounds. So shifting from a race-based to an economic needs-based scholarship makes sense, in my view.”
University of Iowa has already made this shift by changing the criteria of the Advantage Iowa Award from a merit-based scholarship for students from underrepresented racial groups to purely a need-based scholarship.
Kahlenberg said that a class-based approach recognizes historical and structural discrimination in the United States.
“The reason [why] Black families and Hispanic families have so much less wealth than white families, is [because] wealth is handed down over generations,” Kahlenberg said. “And so wealth captures the reality of Jim Crow, laws of redlining [and] even going back to the enslavement of Black people.”
Meanwhile, Jacobson is looking to expand EPP’s initiatives to include challenging sex-based and gender-based scholarships, such as the $76,000 Women in STEM award at Rochester Institute of Technology, which was open to only female and non-binary students.
“Within the scope of promoting equality, it is likely we will expand into challenging single-sex programs and scholarships that violate Title IX, as well as programs that also engage in gender-identity discrimination,” Jacobson wrote. “While racial discrimination will remain our focus, it is likely we will take a broader view of our mission to promote equality.”
Clarification, Sept. 5, 10:58 a.m.: This article has been updated to include the year that CriticalRace.org was founded.
Clarification, Sept. 4, 7:50 p.m.: This article has been updated to include a statement from Dave Maley, director of public relations for Ithaca College, about the scholarship’s criteria following the Equal Protection Project complaint.