Jan. 12—NORTH DAKOTA — A federal lawsuit challenging the racial requirements of the Ronald E. McNair Postbaccalaureate Achievement Program was recently dismissed due to what an attorney for the plaintiffs referred to as “procedural issues.”
However, the case could be refiled.
Skylar Croy, associate counsel at the Wisconsin Institute for Law & Liberty and one of the attorneys representing the plaintiffs, told the Herald on Thursday, Jan. 9, that the team is working out its next steps to deal with the procedural issues Chief Judge Peter D. Welte identified with the case.
“We are committed to dismantling this discriminatory program,” Croy said.
The legal team is encouraged by the judge’s statement that “the program is likely unconstitutional,” Croy said, and referenced a footnote of the order, which was filed Dec. 31.
The footnote reads: “Indeed, given recent United States Supreme Court decisions, including Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 600 U.S. 181 (2023), it seems likely the racial eligibility criteria fails to satisfy strict scrutiny. No doubt this is why many higher education institutions have proactively decided to no longer apply it.”
Welte’s order explained what the plaintiffs were requesting — that the U.S. Department of Education remove the racial and ethnic requirements from the McNair Program and notify universities to do the same — could not be granted because necessary defendants were missing from the suit.
The case, filed in August, argued that McNair’s racial and ethnic requirement is unfair and has had a negative effect on students, including Avery Durfee of UND and Benjamin Rothove of the University of Wisconsin-Madison, who joined the suit along with the Young America’s Foundation and the area chapter Young Americans for Freedom.
The defendants in the case are the Department of Education and Miguel Cardona, the secretary of education. The Department of Education website says two-thirds of all McNair participants must be low-income and first-generation college students; the remainder can be from groups that are underrepresented in graduate education, particularly racial and ethnic groups.
Durfee and Rothove argued that the racial and ethnic eligibility requirement was a harm to their personal dignity and, though they were interested in participating in the McNair Program, they did not apply because they knew they were ineligible. They are both white and not considered low-income, and Rothove is not a first-generation college student, according to the civil complaint.
Welte’s order explained that, because the universities that the two student plaintiffs attend are not listed as defendants in the case, any decision Welte makes will not affect the universities and therefore cannot remedy the injuries the plaintiffs claim to have experienced.
“… (T)hose institutions already received funding from the Department (of Education) for the McNair Program through 2027,” Welte’s order said. “So, through 2027, UND and UW-Madison exclusively control the McNair Program’s admission decisions and its funding allocation to admitted participants, not the Department. Problematically though, UND and UW-Madison are not parties. A favorable decision for the Plaintiffs would not remedy the injuries because UND and UW-Madison are not bound by the Court’s order and decision.”
The order denied the plaintiffs’ motion for a preliminary injunction — which would have prohibited the defendants from enforcing or otherwise implementing the racial and ethnic requirements of the McNair Program until a decision is reached in the federal suit — and dismissed the case without prejudice for lack of subject matter jurisdiction.
The case was officially terminated Jan. 2. Because it was dismissed without prejudice, it could — and likely will — be refiled.