Are African-Americans still protected by equal protection?
dmalamud at UMICH.EDU
Mon Sep 11 15:11:02 PDT 2000
Re Michael McConnell's comment:
I for one make no such assumption (and have said so in print), and I don't
think that the purveyors of class-based and other such alternatives to
race-based affirmative action are *entirely* comfortable being out and on
record that the motivation for the program was in fact achieving *racial*
diversity. The fact that no interest group now exists that believes it has
an interest in challenging these alternative plans as being in fact
race-based doesn't mean no such challenge will ever be successfully brought.
It is in the interest of those legally challenging race-based affirmative
action programs to allow the public to believe that class-based programs
(and other such alternatives) can work, so that the public will be willing
to legislate to ban explicitly race-based programs. Once explicitly
race-based programs cease to exist, THEN it will be in the interest of
those same groups to challenge race-neutral programs designed, adopted, and
periodically adjusted to reach optimal race-based results -- but not before.
Whether they can do it with a straight face will depend on how warmly they
are caught endorsing the current "alternatives."
At 06:55 AM 09/11/2000 -0600, you wrote:
>It is worth noting that the Washington v. Davis mode of constituitonal
>interpretation has been used to protect blacks against discrimination, but
>not victims of affirmative action. Consider the widely-hailed alternative
>to race-based affirmative used in Texas and some other places -- to allow
>automatic admission to the state university for the top X% of every high
>school class. The manifest purpose of this measure is to increase the
>number of minority admittees. Everyone seems to assume this is
>constitutional. Yet if such a strategy were used to *decrease* the
>admission rates of minorities, it would surely be held unconstitutional.
>This is one example of an asymmetry in the law that convinces me that --
>no matter how many times the Supreme Court says otherwise -- affirmative
>action is *not* treated by the law under the same standard applied to
>old-fashioned anti-minority discrimination.
>University of Utah College of Law
>332 South 1400 East Rm. 101
>Salt Lake City, UT 84112
Deborah C. Malamud
Professor of Law
University of Michigan Law School
625 S. State Street
Ann Arbor, MI 48109-1215
Phone (734) 763-5145
Fax (734) 763-9375
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