New Model Legislation: Enforcing the Law on Colorblind Admissions–Congress can stop unconstitutional discrimination and fund better alternatives

The Supreme Court declined to take up Coalition for TJ v. Fairfax County School Board, meaning that its decision to strike down race-based admissions last year will not yet prevent the racial balancing of admissions through carefully selected proxies. Our executive director Dan Morenoff (also a Manhattan Institute adjunct fellow) argues in a new issue brief that Americans don’t need to wait on the Court to stop funding universities’ racial balancing of their student bodies. Congress can take action right now.

Despite the Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA), the federal government  currently encourages colleges to violate the Equal Protection Clause and Title VI through the Minority Serving Institution (MSI) programs. These programs condition hundreds of millions of dollars of grants annually on schools maintaining specific racial balances. Following SFFA, however, such actions and such funding are unconstitutional.

This issue brief suggests four proposals for Congress to ensure that the law is enforced. These proposals, with accompanying model legislative text, include:

• Proposal I: Abolish MSI Programs and Enhance the Pell Grant Program. Redirecting MSI funding towards the race-neutral Pell Grant program would directly benefit needy students and improve educational opportunities for historically underserved communities, constitutionally.
• Proposal II: Abolish MSI Programs and Replace Them with Grants for Higher-Education Students Learning English. Some MSI programs may have been intended to support English-language learners within specific ethnic groups. But race and English proficiency are no longer sufficiently correlated to justify using the proxy. Redirecting MSI funding to targeted grants for nonnative English speakers would ensure a more effective and constitutionally sound approach.
• Proposal III: Replace MSI Programs with Block Grants to the States. This would allow flexibility in addressing various educational goals—including supporting disadvantaged populations and aiding English learners—while preserving legality.
• Proposal IV: Replace MSI Programs with Sunset Block Grants to the States. This blended approach combines elements of the other proposals. It involves abolishing unconstitutional MSI programs, replacing them initially with sunset block grants that gradually diminish, while transitioning the funding into the Pell Grant program over time.

You can see the full document, below.