Many of my NACUA colleagues have asked me about using a "match pool" to award scholarships that are restricted on the basis of race, national origin, or gender.  The following will explain generally how a match pool is set up and how it can be used.  I also address at least some of the legal risks of the match pool.  If anyone has specific questions, feel free to email me.


    Before the enactment of Title IX of the Education Amendments, many institutions had accepted scholarships restricted to one gender.  The match pool was first established in a federal rule, 34 C.F.R. sec. 106.37,  as a way to award these existing gender-based scholarships without violating Title IX.  The relevant part of 34 C.F.R. sec. 106.37 says:


    (a) General. Except as provided in paragraphs (b) and (c) of this  section, in providing financial assistance to any of its students, a recipient shall not:

    (1) On the basis of sex, provide different amount or types of such assistance, limit eligibility for such assistance which is of any particular type or source, apply different criteria, or otherwise discriminate;

        . . .

    (b) Financial aid established by certain legal instruments. (1) A recipient may administer or assist in the administration of scholarships, fellowships, or other forms of financial assistance established pursuant to domestic or foreign wills, trusts, bequests, or similar legal instruments or by acts of a foreign government which requires that awards be made to members of a particular sex specified therein; Provided, That the overall effect of the award of such sex-restricted scholarships, fellowships, and other forms of financial assistance does not discriminate on the basis of sex.

    (2) To ensure nondiscriminatory awards of assistance as required in paragraph (b)(1) of this section, recipients shall develop and use procedures under which:

    (i) Students are selected for award of financial assistance on the basis of nondiscriminatory criteria and not on the basis of availability of funds restricted to members of a particular sex;

    (ii) An appropriate sex-restricted scholarship, fellowship, or other form of financial assistance is allocated to each student selected under paragraph (b)(2)(i) of this section; and

    (iii) No student is denied the award for which he or she was selected under paragraph (b)(2)(i) of this section because of the absence of a scholarship, fellowship, or other form of financial assistance designated for a member of that student's sex.

    (c) Athletic scholarships. (1) To the extent that a recipient awards athletic scholarships or grants-in-aid, it must provide reasonable opportunities for such awards for members of each sex in proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics.

    (2) Separate athletic scholarships or grants-in-aid for members of each sex may be provided as part of separate athletic teams for members of each sex to the extent consistent with this paragraph and Sec. 106.41.


As you see, subsection (b) specifically says that an institution can award a scholarship restricted to one gender if the institution selects the recipients for the scholarships without using gender as a criterion, and awards an appropriate scholarship to each student selected - in other words, if a student is selected to receive a scholarship, the student cannot be denied a scholarship because he or she is of the wrong gender.


Match Pool Process

 

    Although this rule sets out the bare bones of a match pool, the way to implement its commands is not readily apparent.  After some experimenting, though, I developed the following two basic processes.  My examples below focus on gender but they will work for scholarships that are restricted on the basis of race, color, national origin, or other suspect class as well.


Process for a Known Number of Scholarships


   This process should be used when the school or department knows how many scholarships it has for award.  For purposes of this example, assume there are twenty scholarships overall, of which two scholarships are restricted to men.

1.The department or school with the gender-restricted scholarships determines how many scholarships (including the non-restricted ones) it has for award.  These scholarships are "pooled" together for the selection process.

2.The department or school selects twenty students to receive scholarships, using only neutral criteria such as financial need and academic merit.  During this stage of the selection process, the institution cannot consider the gender of the students.

3.The department or school then reviews the twenty selected students to see whether any of them are men.  If at least two of them are men, they "match" the restricted scholarships and the institution can award the gender-restricted scholarships to those two students.

4.If only one of the selected students is a man, or none of the students is a man, one or both of the restricted scholarships cannot be awarded because the institution cannot meet the requirement that the recipient be male.  However, to satisfy 34 C.F.R. sec. 106.37 the institution must still award a scholarship to each of the twenty selected students.  In practice, this means that the institution must have available a supplemental fund from which it can provide a scholarship to these students.  For a reason I will explain below under "Pitfalls to Avoid," this supplemental fund must not otherwise be designated for scholarships.


Process for a Sliding Scale of Awards


    Sometimes, a school or department prefers to award scholarships on a "sliding scale" - i.e., it ranks the scholarship applicants and awards the most money to those at the top.  Under this scheme, the institution does not know beforehand how many scholarships it will award - it will award scholarships based on merit and need, until the available money is gone.  Again, for purposes of this example, assume two scholarships are restricted to men.

1.The department or school with the two gender-restricted scholarships ranks the students who applied for a scholarship, using only neutral criteria such as financial need and academic merit.  During this stage of the selection process, the institution cannot consider the gender of the students.

2.The department or school then reviews the circumstances of the ranked students, and decides (again using neutral criteria such as financial need and academic merit) how much scholarship support it wants to award each student.

3.The institution then reviews the selected students to see whether any of them are men.  If at least two of them are men, the institution can use the gender-restricted scholarships as the source of some or all of the scholarship funds it decided to award to those two students.

4.If only one of the selected students is a man, or none of the students is a man, one or both of the restricted scholarships cannot be awarded.  Again, to satisfy 34 C.F.R. sec. 106.37 the institution must still award a scholarship to each of the selected students from a supplemental fund that is not otherwise used for scholarships.


Legal Arguments for the Match Pool


    The benefit to the match pool process is that, if it's properly done, it deprives students of standing to challenge the restricted scholarship.  The initial selection is made without using gender (or race, color, national origin, etc.) as a criterion.  So, no student could argue that he or she was not selected for a scholarship because he or she was of the wrong gender, race, color, or national origin.  And, because each selected student actually receives a scholarship, none of the selected students can argue that their gender, race, etc. made a difference in that part of the process, either.  Still, in practice various snags can arise that, if not addressed, could give a student grounds for a claim that he or she was treated differently based on an improper classification.

 

Pitfalls to Avoid

    As I indicated above, if an institution cannot award a restricted scholarship because none of the selected students matches the restricted criterion, it must provide a scholarship from a supplemental fund.  This fund cannot be one that is designated for scholarships.  If it were a second scholarship fund, a student eligible for that scholarship could argue that he or she had been deprived of a scholarship because its funds had been used to replace the restrictive scholarship.  This student would thus gain standing to raise a claim, in an indirect fashion.


    In my experience, most scholarships within a school or department are for roughly the same amount.  However, on occasion a donor will endow a scholarship for a much higher amount.  If the scholarship is not restricted, the solution is simple - don't include that scholarship in the match pool.  If the scholarship is restricted on the basis of race, gender, color, etc., one possible solution is to split up the scholarship, and award an average scholarship amount to multiple students who meet the restricted criterion.  As you see, this solution avoids giving a student standing to claim that if he or she were of a different race, gender, etc., he or she could have received the richer scholarship.


    By contrast, some scholarships are for less than the average amount.  The institution can address this by supplementing the award from another scholarship fund so that the student gets the average amount.  Again, the solution deprives the students of standing to claim they received less because they were of the wrong race, gender, etc.


    Before establishing a match pool, the institution should carefully review the demographics of the school or department that will award the restricted scholarship.  If the school or department has few students who match the restrictive criterion, the school or department may rarely be able to award the scholarship.  This will have two effects:  The school or department will have to pay for the scholarship from other funds, and the scholarship will sit unused.  In such a case, if the scholarship is endowed, it may be better to transfer the scholarship to a private foundation for administration, or to seek a court order amending the endowment to strike the restrictive criterion.


    Similarly, if the school or department has few scholarships, it may find it hard to award a restricted scholarship through the match pool.  A possible solution is to pool the school or department's scholarships with those of a larger group.


    This list of snags is not exhaustive.  However, most other issues can be addressed by focusing on standing.  Ensure if possible that no student can assert that he or she was treated differently because of an improper classification.

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Copyright 2001 Sachi Wilson.  I give permission for any person to copy this document freely in any form, or modify it as the user desires, on condition that you give me notice by email to sachiwilson[at]sbcglobal.net. (Replace [at] with @.)  (This is for purposes of gratifying my ego, not for any particular legal need.)  Please link to this site if you find it useful.

Match Pools