Can States Restrict Their “Supportive Nudges” to Graduate Students By Race?

In “A Supportive Nudge for Minority Graduate Students on the Path to a Ph.D.,” the Chronicle of Higher Education recently reported on the Compact for Faculty Diversity‘s annual Institute on Teaching and Mentoring. The Compact for Faculty Diversity has what its web site acknowledges is “a simple goal: to increase the number of minority students who earn doctoral degrees and become college and university faculty.” The Institute on Teaching and Mentoring, now in its 17th year, “has become the largest gathering of minority doctoral scholars in the country.” Its goal, as the Chronicle reported, is “to increase the number of underrepresented minority students who earn doctoral degrees and become faculty members.”
Both the Institute and the Compact are closely affiliated with the Southern Regional Education Board (SREB), whose State Doctoral Scholars Program is the “primary coordinator” of their activities, hosts the annual Institute, and provides financial assistance to doctoral scholars. And who is eligible for SREB doctoral scholarships? Its Am I Eligible? site explains: “Yes! If you …” are a Ph.D. candidate, within the first year of the Ph.D. program or are expecting admission, have completed all course work and preliminary exams, are a U.S. citizen or legal permanent resident, etc., etc., and “are a member of a racial or ethnic minority (including African-American, Asian American, Hispanic/Latin American, Native American or others)….” [Emphasis added]
The SREB’s State Doctoral Scholars Program has support from The Pew Charitable Trusts and the Ford Foundation, organizations that, like the Bill and Melinda Gates Foundation with its Gates Millennium Scholars, seem to leave few race preference programs unfunded (behavior that, I’ve argued here and elsewhere, should make them lose their tax exemptions for the same reasons Bob Jones University did).

The Southern Regional Education Board, however, is supported by more than liberal foundations promoting race preference policies; it is also intimately imbued and entwined with state action.

SREB is a nonprofit, nonpartisan organization that works with 16 member states to improve public pre-K-12 and higher education. Founded by the region’s governors and legislators in 1948, SREB was America’s first interstate compact for education. Today it is the only regional education compact that works directly with state leaders, schools and educators to improve teaching, learning and student achievement at every level of education….
SREB is governed by a Board that includes the governor and four gubernatorial appointees from each member state, including at least one state legislator and one educator. Click on your state at the top right of this page for more details on how SREB serves your state. It is supported by annual appropriations from the member states and by funds from philanthropic foundations and state and federal agencies.

The current Chair is North Carolina Governor Beverly Perdue; its past chairman was Governor (now Senator-elect) Joe Manchin of West Virginia. In SREB’s current Annual Report, SREB President Dave Spence emphasized this governmental support:

SREB is about our 16 states and their education policy leaders. We have been so fortunate to have our states continue to support SREB even in these tough economic times and to continue to have the dedicated support of so many Board and Legislative Advisory Council members who have a special affinity for SREB.

Thus, unless I’m missing something, it seems clear that these sixteen states are at least indirectly funding racially restrictive scholarship, and many of those states are subject to the jurisdiction of the United States Court of Appeals for the Fourth Circuit, which in Podberesky v. Kirwan, 38 F.3d 147 (1994), specifically prohibited such scholarships.
Can states fund through third parties activities that they are prohibited from doing directly? (For discussion of essentially the same question, see Can A Public University “Partner” With A Private Group That Discriminates?)