The Issue
In addition to federal law regarding access and diversity issues in higher education, there are rules in certain states that can affect how access and diversity policies are developed and implemented. State laws and executive orders are examples of potential methods of state expression related to access and diversity.
Notably, nothing in the Supreme Court's diversity-related opinions applying federal nondiscrimination law specifically prohibits the enactment of state constitutional, statutory or regulatory provisions that forbid the use of race or ethnicity in public higher education. In short, federal law establishes a "floor" upon which state law may, in appropriate circumstances, "build." Thus, in several states, voter (or executive) initiatives have given effect to policy preferences that forbid public higher education institutions from conferring benefits or opportunities based on race, ethnicity and gender.
The Policy Context
The following map and table provide an overview of relevant state initiatives prohibiting race-, ethnicity- and gender-conscious policies among public higher education institutions.
Map of United States, showing voter initiatives passed in: Washington state, California, Michigan, Nebraska; state executive order in: Florida; voter initiative failed in: Colorado; issue failed to reach state ballot in: Arizona, Missouri, Oklahoma.
| State | Action Resulting in Ban | Percent of Voters Approving Initiative | Type of Amendment | Scope of Ban |
|---|---|---|---|---|
| California (1996) | Voter ballot initiative | 54% | State constitution | Applies to all operations in public institutions of higher education |
| Washington (1998) | Voter ballot initiative | 58% | State statute | Applies to all operations in public institutions of higher education |
| Florida (1999) | Executive order | Not applicable | Executive order/regulation adopted by Board of Regents and approved by State Board of Education | Applies to admission in public institutions of higher education |
| Michigan (2006) | Voter ballot initiative | 58% | State constitution | Applies to all operations in public institutions of higher education |
| Nebraska (2008) | Voter ballot initiative | 58% | State constitution | Applies to all operations in public institutions of higher education |
Key Action Steps
If building a diverse campus is important to your institution, the following actions may help to build public and political will to support your agenda:
- Build broad-based coalitions to inform policy development and provide support, with the right leadership (higher education, business, military, government, etc.) advocating the educational, economic, civic and security interests advanced by diverse student bodies.
- Convey a common sense description of what the research and experience show regarding the relative benefits and costs associated with diversity, with a focus on the benefits of diversity that inure to all individuals, as well as the rationale and need for considering race in certain cases when making admission and related decisions.
- Pursue public education campaigns associated with the benefits of diversity, focusing on the importance of higher education institutions preserving their full array of policy options consistent with federal law when making mission-driven decisions that have major institutional, economic and societal consequences.