Title

Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of Texas

Abstract

In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to race-conscious affirmative action, courts should guide their consideration by the role that law must play in mitigating long-term, structural disadvantages maintained through race, which now functions as caste within the United States.

Comments

Reprinted as Chapter 5 in Controversies in Equal Protection Cases in America: Race, Gender and Sexual Orientation. (Anne Richardson Oakes, ed., 2015.)