The Voice for Blacks in Higher Education!
President Trump Was Ill-Advised by the Suggestion that HBCUs are Race-or-Ethnicity-Based Institutions or
Minority-serving Institutions. They are Not and Cannot Be Held to Constitutional “Strict Scrutiny”
CONTACT: Selena Singleton
Chief Operating Officer
(202) 202 552-3300
110 Maryland Avenue, N.E. Suite 511
Washington, D.C. 20002
When President Trump recently suggested that his Administration might not continue programs
such as the 25-year Historically Black Colleges and Universities (HBCUs) Capital Financing
Program because it might be unconstitutional, he evidenced a misunderstanding about HBCUs
held by many, including some champions and alumni of HBCUs. Many assume that because
Congress defined Historically Black Colleges and Universities in part based on their mission of
educating the progeny of the American Slave System—African Americans—they are institutions
for blacks and that they are Minority-serving Institutions. Neither is the case. I write to clarify
the erroneous notion that HBCUs are race-or ethnicity-based institutions and therefore subject to
“strict scrutiny” in the review of their actions, programs and services. I write as the 20-year pro
bono counsel for NAFEO, and now President & CEO of this 48-year old national membership
and advocacy association of the nation’s 106 public, private, land-grant, 2- and 4-year,
undergraduate, graduate and professional HBCUs and emerging PBIs--“the voice for blacks in
higher education.”
Since their founding, HBCUs have been open to, welcoming and supportive of persons from all
races, ethnicities, religions, and both genders except for the gender-specific HBCUs. Their
diversity data bear out their commitment to and practices of including persons without regard to
non-bona fide criteria. HBCUs enroll roughly 30% of non-African American students. Their
faculty is more than 40% non-African American. Today 5 HBCUs are more than 50% nonAfrican American. At least one is majority Hispanic-serving. One is being shepherded by a
White female president.
The misunderstanding about a possible Constitutional violation in continuing to support the
HBCU Capita Financing Program is based on Congress’ naming of this richly diverse group of
America’s quintessential colleges and universities as “Historically Black Colleges and
Universities.” It suggests to some that the institutions are for blacks and not others, or that blacks
are provided preferences at these institutions. Neither is the case.
HBCUs were mostly founded just after the Civil War at a time when for the most part African
American could not attend historically White colleges and universities, like Harvard, an
historically wealthy White male institution. Congress defined HBCUs in part based on the
common aspect of their diverse missions, namely, educating African Americans. But HBCUs
were not and are not now race-or ethnicity-based institutions; not Minority-serving Institutions.
HBCUs are race-neutral. They have no threshold or specific percentage of FTEs of a certain race
or ethnicity, and therefore, are not a “suspect classification.” Because they have no race criterion
and no “suspect classification” they cannot legally be held to the “strict scrutiny standard” of
review required by the Constitution when there are “suspect classifications.” As non-race-based,
and indeed, race neutral institutions, a review of any legislation or regulation, legislative or
regulatory fiat or action regarding support for HBCUs must be made under the “arbitrary and
capricious” standard of review set forth in the Administrative Procedure Act (APA). The APA
requires that in order to set aside a law, policy, procedure, practice, or agency action- in matters
in which there is no “suspect classification,” the court must conclude that the regulation is,
"arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law."
In the case of the HBCU Capital Financing Program, there is an overabundance of evidence, put
before Congress every time the Higher Education Act is reauthorized, that the return on
investment in the HBCU Capital Financing Program far exceeds the capital outlay. For example,
the expected $20M investment in the HBCU Capital Financing Program, should yield $280M in
loans. The investment provides insurance on bonds to finance construction, rehabilitation, and
the refinancing of HBCU facilities, much of which would be impossible without the financing,
owing to the small size of their endowments, roughly one-eighth (1/8th ) the average size of
endowments of historically White colleges or universities, and the attendant inability of many
HBCUs to access the best loan terms and conditions.
For President Trump to withdraw from the HBCU Capital Financing Program in the absence of
one iota of evidence or any factual suggestion that HBCUs are race- or ethnicity-based would be
devastating to these equal educational opportunity institutions to whose presidents and
chancellors President Trump pledged the largest investments in their history. It would also be
inimical to the realization of this Administration’s goal of launching what we hope will be the
biggest investment in recent times in revitalizing American urban and rural areas of high distress,
educating, training, and putting their residents to work. It would likewise decrease the likelihood
of the Administration meeting its goals of restoring roads, bridges, tunnels and airports.
To strengthen urban areas of highest distress and lowest attainment, the nation must leverage the
resources of the anchor institutions in these communities, such as HBCUs. Most HBCUs are the
economic engines in their communities. They are by-and-large located in the “belly of the
beast”—in areas of least advantage in both urban and rural areas. The short-term economic
impact of HBCUs is $13 billion. They create roughly 188,000 full and part-time jobs. HBCUs
have been leading in revitalizing their service communities. They possess professors,
researchers, centers of excellence, medical and other human needs centers, and the wide range of
experts in disciplines necessary for America’s urban and rural communities to thrive.
The HUD University Community Fund that was zeroed out several years ago was helping
HBCUs and their Community Development Corporations to accelerate their efforts at
revitalizing their service areas, building housing, incubating small businesses, offering health,
human needs, academic enrichment, cultural, athletic and religious services to those in
surrounding areas. In rural areas, due to their strengthening under the HBCU Capital Financing
Program, HBCUs were not only maintaining their enrollments in an increasingly competitive
market, but they were also offering those in their service communities the facilities and
environments necessary for students, universities and communities to thrive and grow strong.
The HBCUs in rural and remote areas were serving as providers of water, sewer, electrical,
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public safety and first responders to the neighboring communities—some of the most underresourced communities in America. Ending of the HBCU University Community Fund decreased
the ability for some HBCUs to continue their work in these areas. Ending the HBCU Capital
Financing Program would place many HBCUs is a perilous state and cause increased decay,
crime, unemployment, pain and polarization in their service communities.
HBCUs have in place courses, programs and services to abate crime, blight, vandalism, loss of
neighbors, friends, and loss of hope in the HBCU service areas. Many HBCUs are preparing the
nation’s foremost engineers, architects, community and economic development professionals.
Others are providing training, goods and services, opportunities and optimism to the most
distressed communities in America.
HBCUs want and they are poised to partner with the Trump Administration to assist in realizing
its economic stimulus, infrastructure, urban and rural community and economic development
initiatives as the epicenters. They cannot do this if the Administration gratuitously ends one of
the most effective and efficient federal programs to support HBCUs and their service areas.
NAFEO and I look forward to meeting with Secretary DeVos, her senior executive, policy, and
legal advisers, members of the White House Domestic Policy Office, Reverend Manigault,
Director of Communications for Office of the Public Liaison and an HBCU alumna, as well as
others who assist in shaping President Trump’s opinion on matters involving HBCUs, including
Members on both sides of the congressional aisle in both chambers. I also look forward to
President Trump convening his Board of Advisers on HBCUs, and his HBCU Capital Financing
Board where the Administration will most assuredly receive wise counsel on these and other
important matters involving HBCUs.
About NAFEO
NAFEO is the 501(c) (3)-membership association of the nation’s 106 HBCUs and roughly 80
PBIs. NAFEO serves as “the voice for blacks in higher education.” NAFEO members
represent more than 700,000 students, 70,000 faculty, and 7 million alumni worldwide.
HBCUs have a $13 billion short-term economic impact. They graduate 50% of African
American public school teaching professionals; more than 40% of African Americans who
get advanced degrees in the sciences, technology, engineering, and mathematics (STEM);
60% of African American health professionals; and growing percentages of African
Americans in sustainability and Homeland Security professions, the arts, and humanities.
Learn more at www.nafeo.org
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