New Model Legislation: Enforcing the Law on Colorblind Admissions

Congress can stop unconstitutional discrimination and fund better alternatives

New York, NY – Last week, the Supreme Court declined to take up Coalition for TJ v. Fairfax County School Board, meaning that its decision to strike down affirmative action last year will not yet ensure that school admissions everywhere are truly race-neutral. In a new Manhattan Institute issue brief, adjunct fellow Dan Morenoff argues that Americans don’t need to wait on the Court in order to secure colorblind education; Congress can take action.

As has been evident over the past year, the Court’s 2023 decision in Students for Fair Admissions v. President and Fellows of Harvard College (SFFA) hasn't deterred the federal government from encouraging colleges to violate the Equal Protection Clause and Title VI through Minority Serving Institution (MSI) programs. Despite distributing hundreds of millions of dollars annually, these programs condition grants on schools maintaining specific racial balances. Following SFFA, however, such actions 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, improve educational opportunities for historically underserved communities, and remain constitutional.
• Proposal II: Abolish MSI Programs and Replace Them with Grants for Higher-Education Students Learning English. Race-based criteria are unnecessary for achieving the original intent of some MSI programs, which was to support English-language learners within specific ethnic groups. 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 three other proposals. It involves abolishing unconstitutional Minority Serving Institution (MSI) programs, replacing them initially with sunset block grants that gradually diminish, and transitioning the funding into the Pell Grant program over time.

Read the full issue brief and model legislative text here.