Law Commons^™

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

Looking Ahead: The Future Of Affirmative Action, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Fifty years after Brown v. Board of Education, race is still a serious issue in this country. Fortunately, we no longer debate whether it is legal for the government to operate segregated schools or to treat blacks as second-class citizens. We finally answered that question correctly—it is unconstitutional for the law to segregate and to treat blacks worse than whites.

Today, we face the more difficult question of ascertaining the constitutionality of “affirmative action” or “benign discrimination” programs. The Supreme Court first addressed this issue in 1978 in the landmark case Regents of the University of California v. Bakke …