The Supreme Court has banned Affirmative Action — Congress must follow

POLITICS: The Supreme Court has banned Affirmative Action — Congress must follow



Critics have feared that the Supreme Court’s refusal to take up Coalition for TJ v. Fairfax County School Board — in which clear evidence showed the county to have intentionally reduced Asian enrollment at Thomas Jefferson HS — will allow schools and colleges to continue to pursue unconstitutional racial balancing. 

As Justices Alito and Thomas lamented in their Coalition for TJ dissent last month, the lower court’s “reasoning [is] a virus that may spread if not promptly eliminated.” And it is spreading.

Colleges and universities openly follow this blueprint for evading judicial scrutiny. But there is a greater problem at play here: Those schools discriminate — at least in part — because their federal funding requires it.

Despite being outlawed by the Supreme Court last year, little-known Minority Serving Institution programs still allow for over a billion dollars in higher education funding to be doled out according to race and ethnicity. gonzagon – stock.adobe.com

The federal government conditions approximately $1 billion of grants each year on schools certifying prescribed racial balances for their student bodies.

Specifically, the little-known Minority Serving Institution programs only fund schools (not including HBCUs or Tribal colleges) whose student bodies meet arbitrary percentage requirements for particular races or ethnicities: 40% Black, 25% Hispanic, 20% Alaskan Native, or 10% Native Hawaiian.

Fail to hit those thresholds, you lose eligibility for the programs’ grants. That’s a lot of money on the table — money which Congress lacks the Constitutional authority to provide and should end.

The same day it handed down Brown v. Board of Education in 1954, the Supreme Court decided a companion case prohibiting Congress from differently funding schools based on race – except through narrowly tailored efforts to meet compelling purposes.

MSI programs do not satisfy that strict scrutiny: they neither remedy specific harms caused by past discrimination (new schools with the right demography qualify without any discriminatory history) nor address the greater needs of students learning English as a second language. 

The current system of education funding has paved the way for the nation’s trillion-dollar student debt crisis. Allison Bailey/NurPhoto/Shutterstock

Moreover, the Supreme Court has consistently imposed clear limits on Congress’s otherwise broad spending power. As Justice Rehnquist wrote in 1987’s South Dakota v. Dole, Congress’ “power may not be used to induce the States to engage in activities that would themselves be unconstitutional.”

That is precisely what the MSI programs’ grants are: federal funding conditioned on racial balancing that the Supreme Court has already ruled is patently unconstitutional. 

Eventually, a lawsuit may force Congress to remedy this situation. But Congress should never wait for the courts to protect the Constitution from its own legislation.

Instead, it should act now to conform our laws to the Constitution’s requirements. 

When — ideally not if — Congress acts to amend this racial egregiousness, it has every reason to honor the MSI programs’ original, legitimate ends: improving the educational opportunities for disadvantaged communities and supporting ESL students.

To help do so while bringing our law into Constitutional compliance, I’ve drafted model legislation for the American Civil Rights Project and the Manhattan Institute, suggesting four alternatives to MSI programs. 

The first option shifts MSI funding to the Pell Grant program and increases the maximum amount of a Pell Grant. Since 1973, Pell Grants have provided a race-neutral, need-based alternative to conventional student loans.

The Supreme Court has made clear that race-based preferences are unconstitutional — even as many schools and advocates seek to identify loopholes. REUTERS

Over most of the same period, however, the government ramped up the federal student loan program which has caused education costs to surge while generating trillions in student debt. That debt burden has now hit crisis mode.

To the extent that a disproportionate share of minority students remain comparatively poor, enhancing need-based Pell Grants would disproportionately improve the educational opportunities of those communities.

Even better, Pell Grants go directly to the neediest students, improving the opportunities of the most economically challenged students in those communities.

A second option homes in on the other legitimate goal of many MSI Programs: supporting non-English speaking American students. Instead of relying on broad, inaccurate (and outdated) stereotypes, this option would curtail the use of race as a proxy for English proficiency.

Instead, funding programs would target the needs of all students learning English as a second language, regardless of national origin.

Congress has the power to ensure the laws around education funding are followed — but it has yet to ensure this happens. Shutterstock

A third option would replace MSI funding with block grants to states to use as they see fit. 

A fourth would blend these approaches, initially shifting funding into block grants, while creating a pathway for these funds to transition into the Pell Grant program.

Congress could pursue any of these alternatives. It could pursue others. It could pursue none and simply abolish the MSI programs.

Whatever route it chooses, though, our legislators should end federal discrimination between schools based on the race of their students. Not only is this ineffective – it’s unconstitutional. 

Dan Morenoff is an adjunct fellow at the Manhattan Institute and the executive director at the American Civil Rights Project. 



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