The Heritage Foundation

Factsheet #144

April 9, 2014

April 9, 2014 | Factsheet on

How States Can Stop Discrimination: Ending Preferential Treatment on the Basis of Race, Ethnicity, and Sex After <i>Schuette</i>

Equal Protection for All Americans

  • Americans today want to live in a nation where they will not be judged by the color of their skin but by the content of their character, as Dr. Martin Luther King Jr. envisioned.
  • A June 2013 Washington Post/ABC news poll showed that 76% of Americans oppose race-based college admissions.
  • Proponents of racial preferences claim they are necessary to remedy past discrimination or because many Americans are inherently biased (an unproven claim that reflects its own racial bias), but discriminating today against individuals who did not participate in past discrimination is fundamentally unfair.
  • Jobs should go to the most qualified, contracts should be awarded to the lowest bidders, and admission to taxpayer-funded universities should be awarded to the students who are most able and willing to excel academically.

Supreme Court Weighs Michigan’s Ban on Racial Preferences

  • In 2006, Michigan voters passed an initiative that amended the state constitution to prohibit the use of race in public education, employment, and contracting.
  • This amendment mandating equal treatment was challenged as a violation of equal protection in Schuette v. Coalition to Defend Affirmative Action.
  • The Michigan attorney general argues that the amendment was not the result of any discriminatory intent or purpose and that it advances equal treatment by barring preferential treatment.
  • Any day now, the Supreme Court will issue a decision in this case, and it is likely that the Court will uphold the authority of state and local governments to end preferential treatment and other discrimination on the basis of race, ethnicity, and sex.

States Should Consider Passing Similar Laws If the Supreme Court Upholds Michigan’s Ban

  • States should consider seizing this opportunity to amend their constitutions to include such bans, and state and local legislators should consider introducing simple legislation that likewise ends preferential treatment.
  • States with a ballot referendum or initiative process: The voters in these states may follow suit and pass a state constitutional ban on discrimination by state and local governments. At the very least, state legislatures should consider passing a statute that accomplishes the same goal, whether or not there is a ballot initiative process.
  • States with statutes authorizing racial preferences: Legislatures should consider repealing all provisions that authorize preferences or discrimination, or consider amending them to authorize only consideration of factors other than race, sex, color, ethnicity, or national origin.
  • States where it is not politically feasible to outlaw such discrimination: These states should require public universities to disclose annually detailed information on whether and how race, color, ethnicity, or national origin is considered in their student admissions process. So long as such discrimination continues, it should at least be made public and narrowly limited.

For more information, see The Heritage Foundation Legal Memo: What States Can Do to Stop Racial Discrimination

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