Law and Race Commons^™

The Future Of Affirmative Action: Reclaiming The Innovative Deal, Susan Sturm, Lani Guinier

Faculty Scholarship

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American.

Those of …

Bakke As Precedent: Does Mr. Justice Powell Have A Theory, Vincent A. Blasi

Faculty Scholarship

What does it all mean? The Supreme Court's decision in Regents of the University of California v. Bakke invites assessment at many levels. Was it really a "Solomonic compromise" worthy of our constitutional tradition, as some prominent scholars have suggested? Or does the decision represent, as I believe it does, a disturbing failure by the Court to discharge its responsibility to give coherent, practical meaning to our most important constitutional ideals? Does the uncharacteristically opaque and simplistic opinion of Justice Stevens mask deep divisions and ambivalences among the four justices who subscribed to it? Can there be any validity to …

The Unresolved Problems Of Reverse Discrimination, Kent Greenawalt

Faculty Scholarship

The current widespread use of remedial affirmative action programs makes the legitimacy of reverse discrimination a pragmatic social concern. That alone, however, would not explain the intense interest generated by Regents of the University of California v. Bakke. The question posed in the case compels our attention because it forces a choice between two values that occupy a high place in the liberal conception of justice and claim substantial support in the equal protection clause. On the one hand, justice requires that groups that have previously suffered gross discrimination be given truly equal opportunity in American life; on the other, …