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Seton Hall University School of Law has suspended its “Partners in Excellence” minority scholarship program while it considers whether it can make the selection process race-neutral, as federal regulators demand that it be. The school has also entered an agreement with the U.S. Department of Education’s Office of Civil Rights to ensure that an annual job fair, run by local law firms but promoted by the school, is not restricted to minority students. The actions are the result of a departmental investigation in response to a 2003 complaint that the minority programs are discriminatory. The grievant, David Wilson, a white Brooklyn Law School graduate looking for a job, came across promotions of the job fair and scholarship program online. He reported to the Department of Education that the job fair was exclusively for minority students and that the law school’s Partners in Excellence program preferred minority students. The job fair is sponsored annually by New Jersey firms and government agencies � collectively known as the “Law Firm Group” � to expand their opportunities to interview minority students for employment. The fair’s location alternates each year between Seton Hall and Rutgers Law School in Newark. The host schools provide space, refreshments and administrative support, such as advertising, registration-form processing and notification of students and employees of the interview schedules. Seton Hall provided a link on its Web site and e-mailed notices to students at the school and to minority student groups like the Black Law Students Association, the Latin American Law Students Association and the Asian Pacific Law Students Association. In a letter to Wilson dated last Feb. 14, Timothy Blanchard, acting director of the Education Department’s New York office, stated that the investigation had confirmed that the e-mails said “students must be eligible to participate, i.e., they must be students of color.” The attendance at the 2003 job fair consisted of 11 blacks, 19 Asians, 10 Hispanics, one Native American and one white, he said. Blanchard said the school’s actions ran counter to regulations implementing Title VI of the 1964 Civil Rights Act, specifically 34 C.F.R. 100.3(a), which states that “no person shall, on the ground of race, color or national origin, be excluded from participation in, be denied the benefits of, or otherwise subjected to discrimination under any program subject to the regulation.” In an agreement signed Feb. 13, the school said that although the job fair has been advertised as being for minority students, no student has been or will be turned away based on race, color or national origin. It further agreed to highlight that policy in e-mails and marketing materials. Patrick Hobbs, dean of Seton Hall’s law school, said he is satisfied with the outcome of the job-fair probe and that the required disclaimer is “not a very onerous modification.” Race-Neutrality in Dispute A tougher problem is how to fix the Partners in Excellence scholarship program, which was suspended after the 2006-07 school year amid the Education Department’s review of Wilson’s complaint. Hobbs said the department is pushing for a race-neutral scholarship program despite the Supreme Court’s allowance of race as a factor. “We do not believe that is what the law requires,” he said. “We continue to go back and forth on how we could find some compromise between a race-exclusive program, which we preferred, and a race-neutral program, which they preferred. What we continue to debate is what extent race could be a factor, and that conversation continues.” Seton Hall launched the Partners in Excellence program in the fall of 2003 with law firms including Newark’s Gibbons, McCarter & English and Sills Cummis & Gross; Morristown’s Riker Danzig Scherer Hyland & Perretti and McElroy Deutsch Mulvaney & Carpenter; and Woodbridge’s Wilentz Goldman & Spitzer. Annually, six students received full-tuition scholarships, with each firm paying $10,000 and Seton Hall putting up the rest. The firms also provided their partners and associates as mentors to the students. Seton Hall said the program uses race in a narrowly tailored fashion to achieve a compelling interest � the educational benefits of a diverse student body. But the Education Department found the program has exclusively benefited minorities. In the 2003-04 academic year, 28 blacks, 19 Hispanics, four whites, one Asian and one student of unknown ethnicity applied for the program and three blacks and three Hispanics were selected as scholars, Blanchard found. And throughout the five-year history, only black and Hispanic students have received scholarships. Blanchard wrote that Seton Hall targeted “program benefits for students who would contribute to racial/ethnic diversity and in practice conferred privileges on African-American and Hispanic students on the bases of their race and ethnicity. These students received benefits and/or privileges (an attorney mentor and a scholarship) that were not provided to other racial/ethnic groups under the PIE program.” Title VI and applicable case law permit the use of race or national origin in awarding financial aid, but the use of race must satisfy strict scrutiny standards, Blanchard wrote. Under Title VI, strict scrutiny requires use of race or national origin to be narrowly tailored to achieve a compelling interest. In addition, 34 C.F.R. 100.3(b)(1) states that a recipient of federal funding “may not, directly or through contractual or other arrangements, on the ground of race, color, or national origin subject an individual to separate treatment in any matter, including the receipt of financial aid; treat an individual differently in determining whether he satisfies any eligibility requirement or condition, including those for the receipt of financial aid; or, restrict an individual in any way in the enjoyment of any advantage or privilege enjoyed by others, including the receipt of financial aid.” On June 23, 2003, exactly one week before Wilson filed his complaint, the U.S. Supreme Court ruled in a pair of cases that race could be used in educational settings under limited circumstances. In Grutter v. Bollinger, 539 U.S. 306, a case about admission to the University of Michigan Law School, and Gratz v. Bollinger, 539 U.S. 244, a case about admission to Michigan’s undergraduate university, the court said a school “may consider race or ethnicity only as a ‘plus in a particular applicant’s file.’” Hobbs said Seton Hall is considering how to overhaul the Partners in Excellence program to accommodate the Education Department’s demands as well as the needs of the law firms that help fund the scholarships. The law school says it encourages only “qualified” students to apply but does not prohibit applications by students from any ethnic or racial group, although the program does target black and Hispanic students with high LSAT scores and grade-point averages for the program. Any proposed modifications would not be announced until this fall, at the earliest, and would be submitted to the Education Department for approval. “It’s unfortunate if the program has to be changed. I don’t think the program would be successful if you open it up to everyone,” said Glenn Clark, managing partner at Riker Danzig, one of the firms in the Law Firm Group. Wilson, now with the Washington, D.C., firm of Jordan Coyne & Savits, said he filed the complaint because conferring benefits based on race seemed “clearly wrong.” “It was tough enough to find a job � I went to every conceivable job fair I could find, and I don’t remember anything like this,” he said. He said income, not race, should be the criterion for scholarships for disadvantaged students. This article originally appeared in theNew Jersey Law Journal, a publication of ALM. �

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