Affirmative action in the balance

In 'Fisher,' the Supreme Court should adjudicate, not legislate.

, The National Law Journal


In 'Fisher,' the Supreme Court should adjudicate, not legislate.

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What's being said

  • Roger Clegg

    Deciding that racial preferences in university admissions are illegal would not be judicial activism – that is, would not be an instance of a federal court wrenching a decision out of the hands of the states and illegitimately substituting its judgment for that of the political branches.

    Racial discrimination is the issue that is not, and ought not to be, left to state and local officials. Racial spoils will always be attractive in politics, academic and otherwise. And so the Constitution makes it clear that the use of racial classifications is not to be left to the states. Thus, the federal political branches have spoken to this issue already. They guaranteed the “equal protection of the laws” and outlawed racially separate legal standards with the Fourteenth Amendment in 1868. They banned racial discrimination in the making of contracts (and that would include college tuition) in 1866, 1870, and – certainly – 1991, with the various enactments of 42 U.S.C. § 1981. There is no social-science exception to any of this (which is what the dubious "diversity" rationale is).

    BTW, the only reason that we are discussing the Constitution in this context was the decision by activist Justices in the Bakke case to ignore the crystal-clear language of Title VI of the 1964 Civil Rights Act: “No person in the United States shall, on the ground of race, color, or national origin … be subjected to discrimination under any program or activity receiving Federal financial assistance.” It cannot be denied that this is what happened to Abigail Fisher.

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