The Quiet War on Hispanic-Serving Colleges

This summer and fall, Donald Trump’s administration launched a multi-pronged attack on diversity in higher education, deploying lawsuits and cutting funding for minority-serving institutions, particularly those with high populations of Hispanic students.  

In June, a group of conservative plaintiffs took aim at the federal program that offers funding and support to Hispanic-serving institutions, or HSIs. The Department of Justice is declining to defend the program in court, a move that breaks with tradition and increases the lawsuit’s chances of success. 

In September, the Department of Education redirected $350 million in federal funding for HSIs to other priorities, like charter schools and American history education. As in the lawsuit, the Trump administration argued that sending this money to schools that primarily serve Hispanics would be racial discrimination. 

The latest campaign in Trump’s war against “DEI” has the potential to devastate universities that define themselves through their service to underprivileged minorities. It also could pose a threat to the financial survival of the university system as a whole. 

As the Washington Monthly noted this fall, Hispanic students are the main growth population in a time of enrollment slump. With the overall student population declining, the federal government could be encouraging colleges to better serve an underprivileged group while preserving their own bottom line. Instead, it’s punishing them for doing so, reasoning that to target any particular ethnic or racial group—for any reason—is illegal discrimination. 

Beyond that, what would happen to higher education and the law if it became widely illegal to acknowledge race? To understand these cases and the future they could lead to, we spoke with Reginald C. Oh, who teaches constitutional law at Cleveland State University. A Monthly contributor, Oh is nationally known for his expertise in what the Constitution says about race.  

This interview has been edited for clarity and brevity. 

RW: So, Reggie, hi. First off, there’s this lawsuit against the Hispanic-serving institutions program, which the Department of Justice is declining to defend. Can you talk us through what the plaintiffs, the state of Tennessee and Students for Fair Admissions, are saying? 

RO: Okay, well, it really boils down to their argument that the HSI program is “illegal discrimination” in violation of Students for Fair Admissions v. Harvard, the Supreme Court’s decision from 2023 that struck down affirmative action. [Students for Fair Admissions was involved in both cases.] That’s the rationale both for the lawsuit and for the Trump administration saying, “Well, we don’t want to defend the lawsuit, because we also believe the program is illegal.”  

RW: Illegal how? 

RO: So that’s the key, right? When they say it’s illegal discrimination, what they’re really arguing is that it’s unconstitutional discrimination under SFFA v. Harvard. They’re substituting the word “illegal” for “unconstitutional,” which is a rhetorical move and an inaccurate statement of law. SFFA v. Harvard dealt solely with the admissions process, and whether race could be used as a criterion in admitting students. This issue has nothing to do with admissions or individual merit—it has to do with funding for schools that have a certain number of Latino or Hispanic students. [To be federally recognized as an HSI, a school must have at least 25 percent Hispanic students.] And that’s absolutely an open question.  

RW: Just to remind us, what part of the Constitution did SFFA v. Harvard say that affirmative action violated?  

RO: The Equal Protection Clause of the Fourteenth Amendment, which was intended to protect the rights of formerly enslaved people after the Civil War. It says that states can’t deny the equal protection of the law to any person within their jurisdiction. The Court in SFFA v. Harvard held that the use of race in admissions was unconstitutional discrimination against Asian-American students in violation of equal protection.  

RW: What do you think about the norm-breaking aspects of this particular case? The federal government isn’t defending its own program, hoping it leads to the program’s demise. Still, this was duly passed by Congress. Are there any concerns about a future where, if you’re a president saddled with a program you don’t like, you invite a lawsuit and then sit back and do nothing? 

RO: The Trump administration’s refusal to defend the lawsuit is unprecedented. Their attempt to justify their inaction by saying, “We’re not going to defend the law because we agree with the plaintiffs,” raises serious separation of powers issues. We’re talking about Congress passing a statute that tells the executive branch, “Distribute these funds to those minority-serving schools,” and so when the president refuses to defend the law in the lawsuit, what he is actually doing is defying Congress. 

RW: Don’t presidents sometimes decline to enforce a particular law? And isn’t that a prerogative that’s been under debate, but there’s certainly precedent for? In what way is this different from President Obama’s DACA program (Deferred Action for Childhood Arrivals), which gave people who were in the country illegally a chance to stay?  

RO: Yeah, so those raise two separate issues. DACA is really about the president creating his own program, right? But creating a program like DACA is considered lawmaking or legislation, which is the job of Congress, not the president. The job of the president is to faithfully execute the laws enacted by Congress. Congress didn’t create DACA, though, Obama did. So, the legal fight over DACA was about whether the president had the authority to create that kind of program without congressional approval. 

The HSI case is completely different, because Trump does have congressional authorization to distribute funds to eligible institutions. In fact, by law, Trump is required to distribute the funds. The Constitution doesn’t say the president may execute the laws enacted by Congress only if he thinks it’s a good idea; it says the president shall or must execute congressional programs. So, what’s the legal basis for Trump’s refusal to distribute the funds?   

RW: This makes me want to get back to something in this lawsuit. The plaintiffs are saying that these minority-serving programs are illegal under the SFFA v. Harvard decision. They’re arguing that the precedent, which outlaws affirmative action in admissions and says nothing about anything outside of admissions, should also apply to these programs. Do you think the Supreme Court will be favorable to this argument about what it was really saying in its own decision? 

RO: Honestly, yeah, I think they would be favorable to it. The Roberts Court is pretty hostile to race conscious policies. However, I don’t think you can say the outcome is written in stone, especially since the HSI issue is not about college admissions and individual merit, but about serving disadvantaged institutions that serve disadvantaged populations.  

RW: Okay, let’s move to September. The Trump administration announced that it would withdraw approximately $350 million in funding, the vast majority of which was going to HSIs. Some of it is being redirected to charter schools. Some is being sent to American history and civics grants. Some of it—somewhat confusingly, given the administration’s espoused views on race—is being sent to historically Black colleges and universities as part of a one-time infusion of upwards of $400 million. What was the reasoning there? 

RO: Well, in refusing to distribute the funds to HSIs, Trump is claiming to do so would be illegal DEI under SFFA v. Harvard. In diverting the funds to other programs like charter schools, Trump doesn’t really offer any reason or justification other than he’s the president. 

I want to explain further why Trump’s claim about “DEI is illegal discrimination” doesn’t make any sense. Even if a law is technically discrimination because it’s race conscious, that doesn’t make it automatically “illegal.” There’s another step involved called strict scrutiny [a very high standard of proof] in which the government can argue that the use of race was necessary to achieve a compelling interest. If they can do that, then the discrimination would be legal. Trump, however, never mentions the second step.  

RW: Can we touch a bit on the future this is creating? You know, if we’re in a world where it is illegal discrimination to have a program or to have funding that names a group of people, what happens long term? 

RO: In the scenario where the argument that it is all illegal discrimination wins, the future is race-blind policies about basically everything. You wouldn’t be able to consider race in any aspect of U.S. policy making, federal, state, or local.  

It may seem implausible, but the ultimate implication is that race as a concept gets eliminated from political and legal discourse. Think about it. After SFFA v. Harvard, some schools adopted policies barring admissions officers from knowing the race of applicants to ensure a “colorblind” process. But don’t people’s names identify their race? Asian names certainly do. So now admissions officers can’t know the names of applicants? And what about student essays—they now can’t write about their life experience if it would identify their race, right? You see where this goes. We’d end up in a world where even thinking or writing about race would be deemed dangerous because it could lead to “illegal discrimination,” and race functionally would no longer exist.  

Now think about the implications of all that.  

RW: The Supreme Court did mention that this is something you still could do—write an essay about your life experience that mentions race. 

RO: Yes, Roberts did say that. But Trump’s “any consideration of race is illegal discrimination” argument simply ignores that part of Roberts’s opinion. It’s like Trump is telling Roberts, I know you didn’t really mean that and so I’m just going to pretend that part doesn’t exist.  

RW: This leads to a broader point, as you’ve mentioned to me, with some historical parallels to the era of racial segregation in America. If you make law and policy unable to acknowledge something that is a fact in the real world, what kind of scenario does that create? Law and policy are denying realities on purpose, pretending they don’t exist so as to enforce a desired outcome, but without stating it. 

RO: That’s absolutely right. The goal of erasing race out of policymaking is ultimately to deny the reality of existing racial inequality, racial disparities, and racial segregation in K-12, in higher education, and in housing. Think about it. If we can’t consider or count race, then how can we measure and document the racial disparities we know exist? We can’t, and we’d be forced to pretend that racial disparities don’t exist and be unable to address them. And according to the Trump, it’s the Equal Protection Clause which requires this, which is bizarre, even absurd.   

RW: It’s upside down. 

RO: Yeah, we’re in bizarro world with a bizarro Equal Protection Clause in which equity violates equal protection, and racial inclusion or integration is illegal discrimination. If integration is illegal under equal protection, doesn’t that mean segregation is legal? Yeah, it’s absolutely reversed. It’s unequal protection, not equal protection. 

Bringing it back to HSIs, to be eligible for funding, schools must be at least 25 percent Hispanic and serve low-income students. In alleging that the HSI program is “illegal discrimination,” Trump’s goal is to end a policy assisting disadvantaged Hispanic serving colleges. If a law seeking to end racial inequality violates equal protection, then what the Equal Protection Clause protects is racial inequality.  

You know Bizarro, right? Go look up Bizarro Superman. 

RW: I don’t know Bizarro Superman. Oh, my god. [The WM editor is looking at a picture of Bizarro, a zombie clone of Superman who is his opposite in every way—nourished by kryptonite, weakened by sunlight.] 

RO: Yeah, yeah. That’s it. The Trump administration’s Bizarro Constitution.  

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