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 e fficacy of race-based preferential treatment programs initiated by two leading public universities.(1) Both decisions occurred at a time whe n government-imposed, race-conscious remedial measures are being incre asingly challenged on the grounds that they either violate the Civil R ights Act of 1964,(2) or breach the guarantee of equal protection unde r the laws provided by the Fourteenth Amendment. Most recently, a fede rally mandated race-based preference was successfully challenged on th e grounds that it violated an ''implied'' equal protection clause in t he Fifth Amendment.(3) As a further indication of this shift away from state supported racial preferences, legislation is pending in Congres s(4) that, if enacted, would make the consideration of any individual' s race, color, national origin or gender in regard to selection or eli gibility for any federal program unlawful.