The U.S. Education Department’s (ED) Hispanic-Serving Institutions (HSI) program, which has been funded for 30 years, is the centerpiece of a lawsuit just filed by the state of Tennessee and Students for Fair Admissions. The latter is the group that successfully sued Harvard College and the University of North Carolina, leading to the Supreme Court’s decision two years ago to effectively ban the consideration of race in college admissions.
The Higher Education Act’s Title V Developing Hispanic-Serving Institutions program provides institutional aid to eligible colleges and universities, defined as having a full-time equivalent enrollment of at least 25% Hispanic students. As with other institutional aid programs, institutions must also meet eligibility requirements around institutional resources and the share of students who receive need-based aid.
While eligibility for HSI awards considers student demographics, the awarded aid must go toward increasing institutional capacity to better serve all students at the college or university.
Tennessee’s argument
Tennessee’s participation in the HSI suit is based, in part, on the fact that none of the state’s otherwise eligible public institutions of higher education meet the HSI criterion of enrolling at least 25% Hispanic students. In 2022-23, there were 615 Hispanic-Serving Institutions across the country, according to the Hispanic Association of Colleges and Universities.
The suit is forthright, starting with the assertion that “The Department of Education cannot discriminate on the basis of race or ethnicity — even when Congress orders it to.” It states that the Developing Hispanic-Serving Institutions program “pursues the welfare of one ethnic group at the expense of everyone else, including other Hispanic students whose schools miss an arbitrary ethnic cutoff.”
It adds that the 25% “ethnic quota has nothing to do with the history of the institutions, like whether it has historically served (or discriminated against) Hispanics.” [When used to address specific instances of past unconstitutional discrimination, race-based government action can be legal.]
In addition, the suit states that “the HSI program also puts Tennessee’s colleges and universities into an unconstitutional dilemma. Either they continue to serve their Hispanic students lawfully, in which case they are ineligible for grants under the program, or else they engage in affirmative action to satisfy the program’s discriminatory criterion, which is illegal.” The filing also says that even if Tennessee did receive program funding, it would require that institutions break anti-discrimination law.
Suit’s goals
The suit seeks a permanent injunction prohibiting the education secretary from enforcing or applying the HSI program’s ethnicity-based requirements when deciding whether to award or maintain grants. It is not clear how that limitation might be squared with a continuation of the program, since Hispanic enrollments, and more effectively serving those students, are at the heart of the program.
Trump budget policies
Despite the Trump administration’s opposition to diversity, equity and inclusion (DEI) policies — reflected in the HSI program’s very concept — the president’s fiscal year 2026 budget proposes to level-fund the HSI program. Other institutional aid programs whose funds are allocated partially based on racial or ethnic group enrollments were also sustained in the president’s budget.
Alternatively, the Strengthening Institutions Program (HEA Title III-A), which does not take student demographics into account beyond financial need, was proposed for elimination. Likewise, the popular TRIO program, which does not use racial/ethnic criteria for eligibility and does not consider these factors in providing service, was also slated for elimination. Aspects of these policies do appear contradictory.
