Trump suggests financing for historically black colleges may be unconstitutional

President Donald Trump signaled Friday that he may not implement a 25-year-old federal program that helps historically black colleges finance construction projects on their campuses, suggesting that it may run afoul of the Constitution.

In a signing statement on the $1.1 trillion omnibus government spending bill, Trump singled out the Historically Black College and University Capital Financing Program as an example of provisions in the funding bill “that allocate benefits on the basis of race, ethnicity, and gender.”

Trump said his administration would treat those programs “in a manner consistent with the requirement to afford equal protection of the law under the Due Process Clause of the Constitution’s Fifth Amendment.”’

Previous presidents, including Barack Obama and George W. Bush, often issued such statements when they signed legislation to signal they might ignore or disregard parts of laws passed by Congress.

In his signing statement, Trump outlines a range of provisions in the spending bill that he says would “unconstitutionally” limit his authority as commander in chief — and indicates that where the bill conflicts with the White House’s interpretation of the president’s powers under the Constitution, he will go with the Constitution.

A White House spokesman said that like his predecessors, “President Trump has identified certain provisions in the appropriations bill that could, in some circumstances, conflict with his constitutional authority and duties. The brief, routine signing statement simply indicates that the President will interpret those provisions consistent with the Constitution.

“The important thing to realize is the President was able to secure big wins for his priorities in this spending bill, including more than $25 billion in additional funding for the military, $1.52 billion for border security, a permanent extension of health coverage for retired miners and a three-year extension of the DC School choice program.”

But congressional supporters of historically black colleges called the signing statement “stunningly careless and divisive.”

“Trump’s statement is not only misinformed factually, it is not grounded in any serious constitutional analysis,” Rep. John Conyers, Jr. (D-Mich.), ranking member on the House Judiciary Committee, and Rep. Cedric Richmond (D-La.), chairman of the Congressional Black Caucus, wrote in a joint statement.

“For a president who pledged to reach out to African-Americans and other minorities, this statement is stunningly careless and divisive. We urge him to reconsider immediately.”

Trump’s statement also raises the possibility of a challenge to programs listed under the “School Improvement Programs” section of the budget agreement. Those include a wide range of education-related programs, such as after-school initiatives and programs that support Native Hawaiian and Alaska Native education.

The Education Department did not respond to a request for comment.

Advocates for HBCUs and a legal expert said they were confused by the challenge to the HBCU financing program.

Cheryl Smith, senior vice president of public policy and government affairs at the United Negro College Fund, also known as UNCF, which advocates for private HBCUs, said in a statement the organization is “puzzled by this provision and seeking clarification from the White House as to its meaning.”

Smith noted that the federal designation of an institution as an HBCU is not based on race, but rather on mission, accreditation status and the year the institution was established. She speculated that the “signing statement may simply be the Office of Management and Budget being overly cautious and perhaps not fully understanding this important distinction as it relates to HBCUs, but UNCF needs more information regarding their thinking and intent.”

Under the financing program, which was created by Congress in 1992, the Education Department provides federally-backed loans to historically black colleges and universities for the construction of buildings and other facilities. The bill provides $20 million in federal loan subsidies in fiscal year 2017 to support as much as $282 million worth of financing to the schools.

Derek W. Black, a law professor at the University of South Carolina School of Law who studies constitutional and education law, called Trump’s reference to the HBCU program “rather odd.”

“If Congress is validly spending money on these programs, and there’s no court finding or litigation suggesting discrimination, the idea that the executive would unilaterally not allocate those funds would be a rather momentous position to take.” Black said.

Although Congress and the president have long tussled over war powers in signing statements, for example, Black said he thought it was “very unusual” that the statement alluded to apparent discrimination in education programs.

“The administration is basically putting us on notice that they think there might be a problem, and therefore they might have to exercise judgment in these programs,” he said.

He also said it was unusual that the statement referenced only “race, ethnicity and gender.”

“Why stop here?” he asked. “If you’re worried about the allocation of benefits in unfair ways, why not add other things like religion or disability?”

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