The Conversation is an independent and nonprofit source of news, analysis and commentary from academic experts. Jeffrey C. Sun University of Louisville and Charles J. Russo University of Dayton The fate of hundred of millions of dollars in scholarship money is up in the air in Ohio after seven state universities put race-conscious programs on hold to check their legality. The review comes after Dave Yost, the state's attorney general, advised administrators in a call that using race as a factor to award funds may be unconstitutional. Yost's guidance was based on the U.S. Supreme Court's June 2023 decision in Students for Fair Admissions v. Harvard and Students for Fair Admissions v. UNC, which banned consideration of a student's race in college admissions, except under limited conditions. Yost's interpretation of the court's opinion should not have been a surprise. The day after the Supreme Court's decision, he had signaled that schools should clamp down on race-conscious programs. He warned that "disguised" race-conscious admissions policies are still race-conscious admissions policies. Targeting racial criteria Although Ohio did not consider race-conscious scholarships right after the Supreme Court decision came down, other states acted quickly to place such scholarships on the chopping block. Missouri's attorney general immediately banned the use of race in financial aid decisions. Officials at the universities of Kentucky and Missouri eliminated consideration of race in scholarships and grants. This raises a question that goes beyond Ohio: Are scholarships that use race as part of their criteria a thing of the past? The short answer is "no." But based on a review of the 2023 Supreme Court decision and other precedent, such programs will have to pass a tough judicial test. Even then, race can't be the only factor. Campus leaders have some guidance on what to do. In August 2023, for example, the federal departments of Justice and Education provided advice on how schools could keep a diverse student body without considering race in admissions decisions. Factors such as socioeconomic status, ZIP codes, high schools attended, academic achievements and demonstrated contributions to society could become more important in admissions decisions. But the federal agencies were silent on how the court's ruling would affect scholarships and financial aid. To figure that out, administrators may have to go back to the source: the 2023 Supreme Court decision. Diversity and 'strict scrutiny' When the Supreme Court reviewed the admissions programs at Harvard and the University of North Carolina, it used a strict scrutiny standard, the highest level of legal review under the 14th Amendment's equal protection clause. To pass muster, rules or laws that affect fundamental rights must serve a "compelling state interest" and be written to minimize their effect on such rights. In 2003 and again in 2016, the court ruled that a diverse student body is a compelling interest. But in 2023, Harvard and UNC weren't able to pass the strict scrutiny test. Both schools claimed their programs promoted diversity. The court ruled that the universities' race-conscious admissions programs involved racial stereotyping, lacked "sufficiently focused and measurable objectives warranting the use of race" and "unavoidably employ race in a negative manner." The programs violated both the equal protection clause of the Constitution and Title VI of the Civil Rights Act of 1964. Title VI bars discrimination based on race, color, or national origin in programs or activities that receive federal assistance, such as student loans and Pell Grants. Some legal scholars, not unreasonably, say the court's decision bans the use of race in awarding scholarships, as well as in admissions. But this overlooks two important facts: The Supreme Court did not rule that diversity can never be a compelling state interest or that race can never be considered. True, the use of race in many programs receiving federal assistance is now restricted, but it has not been completely outlawed. Even race-conscious admissions aren't completely off the table – if programs can pass the strict scrutiny test. Consideration of a student's race might be allowed if there is "an exceedingly persuasive justification that is measurable and concrete enough to permit judicial review," the court said. For example, the Supreme Court OK'd race-based policies at U.S. military academies on the theory that a strong national defense – a compelling state interest – requires a diverse officer corps. But after the Harvard and UNC decision, even these programs will need to explore other ways to achieve diversity. Strategies for diversity in admissions that don't take race into account, like those suggested by the departments of Education and Justice, can serve as a guide for school administrators. MIT and Stanford Law are among the programs already using criteria such as income, ZIP code and civic engagement to maintain diversity. More challenges ahead The use of race in scholarships and admissions is just one legal challenge race-conscious programs face. In July 2023, 13 state attorneys general – from Alabama, Arkansas, Indiana, Iowa, Kansas, Kentucky, Mississippi, Missouri, Montana, Nebraska, South Carolina, Tennessee and West Virginia – sent a letter urging Fortune 100 CEOs to eliminate all such programs at their companies. Critics of these programs also questioned the use of race in scholarship and financial aid programs funded from outside a university, including fellowships that consider race when helping underserved students. In contrast, some campus leaders and lawyers argue that the court's decision should be limited to race-conscious admissions. They argue it should not include other programs where race might be used as a factor. This article is republished from The Conversation.

CHICAGO — As President Joe Biden and Donald Trump step up their campaigning in swing states, a quieter battle is taking place in the shadows of their White House rematch. The Republican National Committee, newly reconstituted under Trump, has filed election-related lawsuits in nearly half the states. Recent lawsuits over voter roll maintenance in Michigan and Nevada are part of a larger strategy targeting various aspects of voting and election administration. It's not a new strategy. But with recent internal changes at the RNC and added pressure from the former president, the legal maneuvering is expected to play an increasingly significant role for the party as Election Day in November approaches. The lawsuits are useful for campaign messaging, fundraising and raising doubts about the validity of the election. Danielle Alvarez, a senior adviser to the RNC and the Trump campaign, said the lawsuits were one of the organization's main priorities this year. "This is something that's very important to President Trump," she said. "He has said that this is something the RNC should do year-round." Democrats and legal experts are warning about how the lawsuits might overwhelm election officials and undermine voter confidence in the the results of the balloting. The Democratic National Committee has a legal strategy of its own, building "a robust voter protection operation, investing tens of millions of dollars," to counter the GOP's efforts that seek to restrict access to the polls, spokesperson Alex Floyd said. "The RNC is actively deploying an army of lawyers to make it harder for Americans' ballots to be counted," he said. Election litigation soared after the 2020 election as Trump and his allies unsuccessfully challenged his loss to Biden in dozens of lawsuits. Experts that year wondered whether the blitz of legal action was an aberration caused by false claims of a stolen election and changes to voting processes due to the COVID-19 pandemic, said Miriam Seifter, attorney with the State Democracy Research Initiative at the University of Wisconsin Law School. They quickly realized that wasn't the case as the 2022 midterms also generated a high number of election-related lawsuits. This year is projected to be similar, she said. "Litigation seems to now be a fixture of each party's political and electoral strategies," Seifter said. Voter ID rules, mail ballots and voter roll maintenance are among the RNC's litigation targets. The latest is a lawsuit this month alleging that Michigan has failed to keep its voter rolls up to date. Maintaining accurate voter rolls by updating voters' status is routine for election officials, who watch for death notices, changes in motor vehicle records or election mail being repeatedly returned. Michigan also uses ERIC, an interstate data-sharing pact that helps states update voter lists but has been targeted by conspiracy theories. Opponents of the lawsuit have said it relies on unsubstantiated, flawed data and runs the risk of purging legitimate voters. "They're claiming there's a problem because one piece of data doesn't match another piece of data," said Justin Levitt, a Loyola Law School professor. "But the pieces of data they're trying to match don't measure the same thing. It's like saying, 'I just looked at the clock and it's different from the temperature on my thermometer.'" This is not a new tactic, said Caren Short, director of legal and research for the League of Women Voters, which has filed to intervene in the Michigan lawsuit. She said most previous lawsuits have been from "more fringe groups" rather than directly from the RNC. "Now seeing a prominent political party attempting to purge people from the rolls, it's very concerning," she said. In the past four years, Michigan's voter rolls have been targeted in three similar unsuccessful lawsuits. Just days after the Michigan lawsuit was filed, the RNC filed a similar one in Nevada. A federal appeals court earlier sided with the RNC in a lawsuit in Pennsylvania questioning whether officials should count improperly dated absentee ballots. A Wisconsin lawsuit is targeting absentee voting procedures and ballot drop boxes. An RNC lawsuit in Arizona is aiming to invalidate or adjust the state's 200-page elections manual while another in Mississippi seeks to prevent mail ballots from being counted if they are postmarked by Election Day but received days later. Various other groups have filed similar litigation recently, including a lawsuit against the Maryland State Board of Elections claiming the state's voting system is not in compliance with federal and state law. Marly Hornik, CEO of United Sovereign Americans, one of the groups behind the Maryland lawsuit, said more lawsuits are intended in other states this year. On its website, United Sovereign Americans, which Hornik said formed last summer, announced plans to file lawsuits in 23 states. The GOP and affiliated groups are involved in dozens of other cases with more on the way, RNC officials have said. In this election cycle, the RNC's legal team has been involved in more than 80 lawsuits in 23 states, said Alvarez, the RNC spokesperson. She said part of the reason for the flurry of lawsuits was the lifting of a federal consent decree in 2018 that had sharply limited the RNC's ability to challenge voter verification and other "ballot security." During an interview this month with Fox News, the RNC chairman, Michael Whatley, emphasized the party's plans to prioritize election-related litigation. He said the RNC is recruiting and training tens of thousands of poll observers and working with thousands of attorneys. On April 19, the RNC announced plans to train poll watchers, poll workers and lawyers and send out more than 100,000 attorneys and volunteers to monitor vote-counting across battleground states in November. Prioritizing election litigation also is reflected in recent changes within the RNC since Whatley and Lara Trump, the former president's daughter-in-law, took control and reshaped the organization with a renewed focus on "election integrity." The RNC now has "election integrity directors" in 13 states. Christina Bobb, who has promoted false claims of a stolen 2020 election and was part of a Trump-backed fake elector scheme, was tapped to lead the department. "One of our biggest changes from last cycle to this cycle was making the election integrity department its own department with its own dedicated budget and focus," Alvarez said. Rick Hasen, an election law expert and professor at the University of California, Los Angeles, said most of the lawsuits are unlikely to win in court but "serve as a basis for fundraising and are trying to keep this issue front and center as a campaign issue." Democracy groups and legal experts said the lawsuits could pave the way for false narratives challenging the validity of the 2024 election while consuming time and staff at election offices across the country. Post-election lawsuits also could delay or obstruct certification of the results. "I worry about these lawsuits that are not designed to clarify the rules but instead to lay the groundwork for false claims that an election their side lost was stolen or rigged," said David Becker, founder and executive director of the Center for Election Innovation & Research, which advises local election officials nationwide. "We saw this in 2020. We saw it in 2022. And we're beginning to see the planting of seeds of doubt in the minds of the electorate again in 2024."