A Microsoft Fellowship Caps the Number of White and Asian Applicants. Lawyers Say That’s Illegal.

Aaron SibariumSeptember 8, 2022

It’s not just Google. Microsoft is capping the number of white and Asian students that universities can nominate for a prestigious research fellowship that includes a generous $42,000 stipend, part of a pattern of discriminatory policies sweeping corporate America.

The Microsoft Research Ph.D. Fellowship allows participating universities to nominate up to four students annually. “At least two” of those four nominees, per Microsoft’s provisions, should “self-identify as a woman, African American, Black, Hispanic, Latinx, Native American, Alaska Native, Native Hawaiian, Pacific Islander, Indigenous Peoples, LGBTQI+, active or veteran service member, and/or person with a disability.”

It is illegal for companies to enter into contracts based on race under the Civil Rights Act of 1866, and Title VI of the 1964 Civil Rights Act prohibits federally funded universities from discriminating based on race. The Microsoft fellowship likely violates both laws, according to Gail Heriot, a member of the U.S. Commission on Civil Rights and a law professor at the University of San Diego.

A Microsoft spokesman, Rhoades Clark, declined to comment, telling the Washington Free Beacon that Microsoft “has nothing to share.”

Until recently, IBM’s Ph.D. Fellowship Rewards Program used similar criteria. That program, which also allows four applicants per school, required that half of each university’s nominations go to “diversity candidates or underrepresented populations in technology.”

But 24 hours after the Free Beacon contacted IBM for comment, the company scrubbed the quota-like language from its website, which now stipulates that schools “consider a diverse slate of candidates for the program.” IBM did not respond to a request for comment.

The fellowships reflect the race-conscious consensus that has taken hold of Silicon Valley, where ostensible corporate competitors increasingly mimic each other’s policies. Like Microsoft and IBM, Google caps the number of white and Asian men that universities can nominate for a Ph.D. fellowship, using language almost identical to Microsoft’s. “If a university chooses to nominate more than two students,” Google says, “the third and fourth nominees must self-identify as a woman, Black / African descent, Hispanic / Latino / Latinx, Indigenous, and/or a person with a disability.”

That criterion has been in place since at least April 2020, according to an archived webpage. It is not clear when Microsoft and IBM adopted their criteria.

Nearly every elite university in the country has nominated students for one of the fellowships and some, like Columbia University and the Massachusetts Institute of Technology, have nominated students for all three. Though universities are unlikely to lose federal funding over the fellowships, they could face lawsuits or civil rights investigations.

So could the companies themselves. Since the programs are not unconditional grants—fellows must remain in their Ph.D. program for the duration of the fellowships—courts would probably treat them as contracts, said Dan Morenoff, the executive director of the American Civil Rights Project. That would expose Microsoft, Google, and IBM to liability under the 1866 Civil Rights Act, the law banning race discrimination in contracting.

Other tech companies are already facing such lawsuits. In July, a white woman filed a class action complaint against Amazon over a program that gives “Black, Latinx, and Native American entrepreneurs” $10,000 dollar stipends to launch delivery startups. The program violates the 1866 Civil Rights Act, the lawsuit argues, because whites and Asians are ineligible for the stipends.

“Every morning you wake up to hear a new story about a corporation ignoring the law,” Heriot said. “They have to start being held accountable.”