Race-Based Preferential Treatment Programs: Raising the Bar for Establishing Compelling Government Interests

Abstract

In 1995 a series of federal court decisions called into question the efficacy of race-based preferential treatment programs initiated by two leading public universities.¹ Both decisions occurred at a time when government-imposed, race-conscious remedial measures are being increasingly challenged on the grounds that they either violate the Civil Rights Act of 1964,² or breach the guarantee of equal protection under the laws provided by the Fourteenth Amendment. Most recently, a federally mandated race-based preference was successfully challenged on the grounds that it violated an “implied” equal protection clause in the Fifth Amendment.³ As a further indication of this shift away from state supported racial preferences, legislation is pending in Congress⁴ that, if enacted, would make the consideration of any individual's race, color, national origin or gender in regard to selection or eligibility for any federal program unlawful.