Race-based preferential treatment programs: raising the bar for establishing compelling government interests

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 Congress(4) 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.
In response to these judicial and legislative initiatives, the popular media has announced the demise of all affirmative action programs. This article, through analysis of the aforementioned case law and [...]