NCPA - National Center for Policy Analysis

Court Says Preferences Must End, Some Day

July 7, 2003

The majority opinion in the Michigan law school affirmative action case by Supreme Court Justice Sandra Day O'Connor held that policies to achieve diversity "must be limited in time." This could be the key to moving colleges toward race neutral policies, says Weekly Standard publisher Terry Eastland, and could play a vital role in bringing preferences to an end.

  • Justice O'Connor observed that "a core purpose" of the 14th Amendment was to do away with "all governmentally imposed discrimination based on race."
  • She said the admissions policy she and her colleagues had just upheld would be at odds with the 14th Amendment if they were to continue forever.
  • Such policies, therefore, "must be limited in time," meaning they must come to an actual "termination point."

This could be done, she suggested, by putting "sunset provisions in race-conscious admissions policies and periodic reviews to determine whether racial preferences are still necessary to achieve student body diversity."

The U.S. Department of Education's Office for Civil Rights enforces Title VI of the Civil Rights Act of 1964, which forbids discrimination on the basis of race or ethnicity by colleges that receive federal funds. The office could issue new guidance's requiring sunset provisions and effective race-neutral alternatives in affirmative action plans, in keeping with the court's decision.

The office is prepared. In March 2003 it published "Race-Neutral Alternatives in Postsecondary Education: Innovative Approaches to Diversity," which reported on the two main alternatives now in use -- those that operate at the point of admission (like the X-percent plans in Texas and Florida) and those that aim to develop students academically (like the expansion of advanced placement courses to underserved high schools in the same two states).

Source: Terry Eastland (Weekly Standard), "Justices also said affirmative action must end," Dallas Morning News, July 7, 2003.


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