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Recently, the American Civil Rights Project sent a letter to Senator Bill Cassidy, Chair of the Senate Committee on Health, Education, Labor and Pensions, and Senator Lindsey Graham, Chair of the Budget Committee, advocating for the defunding and immediate repeal of all Minority Serving Institution Programs. The ACR Project argues that these programs are patently unconstitutional. An identical letter was sent to the Chairs of the relevant House Committees.

“Decades ago, Congress created numerous programs that confer benefits on what are called Minority Serving Institutions (‘MSIs’),” wrote ACR Project Board Members Gail Heriot and Peter Kirsanow and Director Dan Morenoff. “Cumulatively, these racially and ethnically discriminatory programs now shovel about a billion dollars annually to hundreds of colleges and universities that have been designated as MSIs. Schools that are not designated as MSIs are unfairly prevented from competing for these funds.”

To qualify as an MSI, colleges and universities must attain a minimum number of students belonging to a particular race or ethnicity. The qualifying threshold varies. For example, to qualify as a Hispanic Serving Institutions (HSI), a school must have a minimum of 25% Hispanic student enrollment. To qualify as a Predominantly Black Institution (PBI)—not to be confused with Historically Black Colleges and Universities (HBCU)—the school must have a student population at least 40% African American or Black.

“In theory, some of the MSI programs require that some portion of the required demographic be ‘needy,’ but even in those MSI programs, the requirement can be—and seemingly always is— waived. Meanwhile, schools with a large number of needy students that don’t happen to qualify as MSIs are excluded from participating in the MSI treasure trove,” Heriot, Kirsanow, and Morenoff said.

“Under longstanding constitutional doctrine, a racially or ethnically discriminatory law or program must be strictly scrutinized. To withstand that scrutiny, it must be narrowly tailored to serve a compelling governmental interest. It is hard to imagine how any MSI program could satisfy such scrutiny” when MSI grants are distributed purely based upon the race or ethnicity of a school’s students.

“Congress could and should put a stop to the HSI and other MSI programs simply by defunding them,” urged Heriot, Kirsanow, and Morenoff. “In addition, Congress should repeal the programs’ authorization outright, hence preventing a future Congress from simply restoring their funding.” Moreover, the authors said, funds that would have been allocated to MSI programs could instead be used to fund Pell Grants, English-language learner grants, and block-grants to the states.

Read the full letter to Senators Cassidy and Graham.

For more background, read a 2023 Federalist Society Review article discussing Hispanic-Serving Institutions and Emerging Constitutional Issues.