The College Fix

In response to The College Fix‘s post about Ohio University’s student senate considering whether to triple the number of women-only senators, Hans Bader – a former attorney in the Department of Education’s Office for Civil Rights – sent in this analysis:

It is unconstitutional for Ohio University’s student government to set aside spots for women or minorities – even in a government legislative body that is dinky and has little power, like a student government or local government advisory board.

Racial and gender quotas and set-asides have been declared unconstitutional, as have proportional-representation and gender-balancing requirements, including on government boards, as in the 1996 Back v. Carter decision in Indiana voiding gender balance requirements.  See the following court decisions: Builders Association v. Chicago, 256 F.3d 642 (7th Cir. 2001) (federal appeals court with jurisdiction over Indiana strikes down minority and female set-asides for government contracts, finding that the Constitution forbids them except in the rare case where they are needed to remedy the present effects of recent, pervasive governmental discrimination against women and minorities); Lamprecht v. FCC, 958 F.2d 382 (D.C. Cir. 1992) (federal appeals court rules FCC’s gender preferences for women violated the equal-protection component of the Fifth Amendment, despite FCC’s appeal to “diversity”); Back v. Carter, 933 F.Supp. 738 (N.D. Ind. 1996) (Indiana trial judge invalidated gender-balance requirement for government board).

While diversity can be a justification for using race in college admissions, fixed set asides are not permitted.  See Gratz v. Bollinger (2003) (invalidating the University of Michigan’s point system); Podberesky v. Kirwan (1994) (Invalidating scholarship limited to particular race).

Bader is currently a senior attorney at the Competitive Enterprise Institute.

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IMAGE: League of Women Voters/Flickr