When higher education leaders address issues of access and diversity in higher education, they are inevitably confronted with questions of law, just as they address questions of educational soundness as a matter of policy and program development. With the objective of providing some clear and important guidelines with respect to key legal issues, which should inform that policy and program development, this paper addresses significant state law (and related federal court) developments over the course of the past fifteen years on the topic of race-, ethnicity and sex-related preferences among public education institutions.1 This guidance provides a framework for assessing access- and diversity-related policies and programs at public colleges and universities in light of these state developments.
Since 1996, voters in five states have passed ballot initiatives that prohibit the consideration and use of race, ethnicity, and sex in public programs.2 In a sixth state, an Executive Order, subsequently reflected in state regulation, also has limited the consideration of race, ethnicity,and sex in public programs. And most recently, the legislature in a seventh state passed a similar ban. These prohibitions affect policies among public (or state) education institutions (among others). They raise a number of challenging questions regarding the future of race-, ethnicity- and sex-conscious student enrollment and faculty employment practices.