News - April 1996

Federal suit challenges minority grants, gay law scholarship

CHAPEL HILL, NC -- Jack Daly, a first-year law student at the University of North Carolina, has joined several other students throughout the state in a federal lawsuit that seeks to eliminate minority presence scholarships in the University of North Carolina system.

In the same suit, filed in the Western District of North Carolina, Daly also attempts to bar the UNC School of Law from administering a private scholarship that grants a preference to lesbian and gay students or advocates for lesbian and gay rights.

The first count of Daly's suit -- challenging minority presence scholarships -- bases its argument on the Equal Protection Clause of the Fourteenth Amendment. The Second Count -- challenging the Alan Berman Scholarship at the UNC School of Law -- bases its argument on the freedom of speech and religion provisions in the First Amendment. Daly alleges that the University's administration of the Alan Berman Scholarship -- which consists entirely of private donations -- violates his freedom of religion because, as a fundamentalist Christian religiously opposed to gay rights, Daly believes he is ineligible for the scholarship. Daly argues that the UNC School of Law may not administer any scholarship -- public or private -- that in any way discriminates against a particular religion.

Doug Ferguson, a third-year law student at UNC and a recipient of the Alan Berman Scholarship, said Daly's suit has no merit and is merely political grandstanding. Daly, 23, is running as a Republican for the position of N.C. State Auditor.

"It's the most poorly drafted complaint I've ever seen," said Ferguson, who noted that Daly's attorney was stripped of his Superior Court judgeship due to indictments for voter fraud. "It doesn't have a legal leg to stand on -- especially the count challenging the Berman Scholarship."

Ferguson, who is considering intervening as a defendant in the suit, said that Daly's challenge of the Berman Scholarship will fail because the law school's administration of the scholarship does not constitute the level of state action needed in a First Amendment challenge. In addition, Ferguson, a regularly featured columnist in Oasis, noted that all students -- even fundamentalist Christians -- are eligible to receive the scholarship.

"The Alan Berman Scholarship merely expresses a preference for lesbian and gay students or advocates of lesbian and gay civil rights," Ferguson said. "It's primarily an academic and need-based scholarship. Mr. Daly himself might have received it if he had applied."

Although Ferguson said he believes the suit will fail, he said he is taking it very seriously. Due to a trend in the courts away from allowing affirmative action programs, Ferguson said the first count of Daly's suit might survive, and he is concerned that the second count might not receive adequate attention from University attorneys.

"I'm worried the State might put all its resources into defending the first count," Ferguson said. "Although I certainly support the minority presence grants and strongly believe that the lesbian, gay and ethnic minority communities must all work together to defeat this serious threat to such scholarships, I hope everyone cooperates in their defense of the Alan Berman Scholarship, as well. It's clear that Mr. Daly would like to see all minorities denied assistance in their efforts to receive a quality education."

Because Ferguson is concerned that the interests of current and future recipients of the Berman Scholarship will not be adequately represented by the University, he said he is seeking the help of the Lambda Legal Defense and Education Fund (LLDEF) and local attorneys in his effort to intervene as a defendant. Ferguson said he would welcome advice and assistance from attorneys who might be interested in becoming involved in the case.

"There are scholarships like the Alan Berman Scholarship being developed at public universities across the country," Ferguson said. "Such scholarships are a vital new tool in our movement, providing educated activists to assist in the struggle for lesbian and gay civil rights in the future. I believe the national lesbian and gay community must become involved in the defense of this suit. We just can't afford to have bad precedent set in this area."

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