The Education Department, during both the Reagan and Bush administrations, dismissed at least three complaints that scholarships for minorities violate civil rights law, rejecting the legal analysis used as part of the basis for its new decision to bar most colleges from awarding scholarships based on race.
The department told Fiesta Bowl officials in a letter last week that its plans to give $200,000 to the University of Louisville and the University of Alabama for scholarships for minority students would violate Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by colleges and universities that receive federal aid.
In explaining this departure from the department's long-standing policy, Michael L. Williams, the assistant secretary for civil rights, said it was mandated by Supreme Court decisions, including the 1978 ruling in Regents of the University of California v. Bakke. In that case, the court struck down a medical school admissions policy that set aside a specific number of places for minority students.
In response to questions at a news conference Wednesday, Williams said Bakke let universities take race into account as a factor in awarding scholarships, but it could not be the sole factor.
In March 1982, the department dismissed a complaint from a graduate student who said a minority tuition fellowship program at the Massachusetts Institute of Technology discriminated against him in violation of Title VI.
"We do not consider it proper to extend the Bakke decision from admissions policies to all race-conscious actions by universities," Burton M. Taylor, director of post-secondary education in the civil rights office, wrote to the student.
He said that while "admissions quotas" may result in students being kept out of a university, "the availability of a particular financial aid program does not have such a far-reaching effect."
In another case, in 1983, the department upheld fellowship programs at the University of Denver business school funded by private companies and limited to minority students.
In a March 1983 memo, Joan Standlee, deputy assistant secretary for civil rights, noted that the programs did not keep non-minority students from qualifying for "the major proportion" of financial aid at the school. She said they were "voluntary affirmative efforts that are intended to increase minority representation in specified fields" and were consistent with both Title VI and Bakke.
After President Bush took office, the department in September 1989 threw out a complaint that the University of Colorado medical school illegally discriminated against white female students by excluding them from consideration as candidates for the federally funded Patricia Roberts Harris Fellowships.
The regional director for the civil rights office told the university president that restricting the fellowships to black students was "permissible affirmative action" under department regulations implementing Title VI.
That letter came nine months after the Supreme Court's ruling in City of Richmond v. Croson overturning a minority set-aside program for contractors. Williams, at a news conference Wednesday explaining the new policy, said department officials were "just law enforcement folks" implementing the Croson decision.
The letter to the University of Colorado, however, does not mention the Croson case. Richard Komer, a deputy to Williams, said the ban does not apply to federally funded scholarships that Congress has designated for groups that are traditionally under-represented in higher education.
He said the department considers federal legislation establishing those scholarships "in harmony with any other federal statute," including the Civil Rights Act. An Education Department spokesman said neither Williams nor any other official was available yesterday to comment further on the issue.
The ban has stirred an intense debate in the Bush administration and opposition from education, civil rights and business groups concerned about the under-representation of most racial minorities in American colleges.
A civil rights lawyer yesterday questioned whether Williams ignored important facts when he decided the University of Louisville could not accept Fiesta Bowl funds for minority scholarships. In his Dec. 4 letter to Fiesta Bowl executive director John Junker, Williams said colleges could award scholarships based solely on race if "mandated to do so by a court or administrative order, corrective action plan, or settlement agreement."
Janell Byrd, a lawyer for the NAACP Legal Defense Fund, said Louisville appeared to qualify for that exemption.
Gary Cox, executive director of Kentucky's Council on Higher Education, said Louisville, a state college, has been covered by a voluntary desegregation agreement between the state and the Office for Civil Rights since 1982 and that plan has included scholarships for minority students. A Louisville spokesman said 217 minority students attend the school on such scholarships.
Byrd said Williams told her during a brief meeting yesterday that he was about to decide whether to rule that the state has successfully desegregated and no longer needs to take such corrective action.