The Last Wave of Affirmative Action

Abstract:     
Recent arguments equate non-preferential recruitment and retention programs with preferential forms of affirmative action, such as setting aside seats in a law school class for minority students who meet different admissions standards than white students, or laying off white teachers before black teachers regardless of seniority. If these arguments prevail, the last wave of permissible affirmative action will be held presumptively unconstitutional and likely dismantled. This result would render the ideal of the even playing field an unattainable illusion.This is not mere hyperbole: equal access to information and opportunity is imperative for minorities to compete for the same opportunities as whites. By engaging in an argument about whether affirmative outreach to minorities is constitutional, we beg the question of whether we as a society have abandoned the ideal of the even playing field altogether. If we have, we must grapple with the disastrous consequences not only for minorities seeking access to opportunities, but also for our entire society and its ability to survive and compete in the twenty-first century. Race-conscious, non-preferential affirmative action allows decision-makers to strive for colorblindness by recognizing that we must first look at race to get beyond it. These programs are unique in that they allow decision-makers to acknowledge prior race-based decision-making, broaden their applicant pool accordingly, and select their candidates of choice without burdening any other group. This article argues that current jurisprudence regarding preferential affirmative action does not mandate the dismantling of non-preferential affirmative action simply because it is race-conscious.

Number of Pages in PDF File: 69

Accepted Paper Series