Abstract

http://ssrn.com/abstract=2429403
 


 



Schuette v. Coalition to Defend Affirmative Action and the Failed Attempt to Square a Circle


David Bernstein


George Mason University School of Law

2013

NYU Journal of Law & Liberty, Vol. 8, No. 1, pp. 210-227, 2013
George Mason Law & Economics Research Paper No. 14-12

Abstract:     
The question presented to the Supreme Court in Schuette v. Coalition to Defend Affirmative Action is, “Whether a state violates the Equal Protection Clause by amending its constitution to prohibit race- and sex-based discrimination or preferential treatment in public-university admissions decisions.” Given that the Supreme Court barely tolerates affirmative action preferences, it is exceedingly unlikely to endorse a lower court ruling that overturns a state ban on them.

Nevertheless, it is worth examining the reasoning of the Sixth Circuit's decision in Schuette, because it exemplifies many interesting nuances regarding the debate over the constitutionality of affirmative action preferences, nuances that were mostly ignored in the dissenting opinions. Judge Cole's opinion demonstrates (1) that despite decades of jurisprudence permitting state university affirmative action preferences only if used for “diversity” purposes, its legal advocates, including federal judges, still act under the assumption that the purpose of preferences is to benefit students who are members of underrepresented minority groups; (2) some affirmative action advocates cling to an obsolete model of American politics that posits that African Americans and members of other minority groups lack any substantial political power; (3) some affirmative action advocates tend to discuss the issue as if the only groups affected are African Americans and whites, neglecting both that Asian Americans tend to be harmed by university admissions' preferences, and that African Americans are a shrinking minority of those eligible for preferences, with Hispanics a significantly larger and faster-growing demographic group; and (4) affirmative action advocates tend to be dismissive of the claim that race is different and more problematic than other criteria that university officials may consider in admissions, for moral, historical, and practical reasons. While not unassailable, these reasons seem to provide a significant non-arbitrary rationale for state voters to ban official reliance on race and ethnicity.

Number of Pages in PDF File: 19

Keywords: constitutional amendment, referendum, public education, state universities, preferential treatment, legacy preference, underrepresented groups, minorities, race, ethnicity, Fourteenth Amendment, equal protection, political process, Grutter v. Bollinger, Gratz v. University of Michigan, Sixth Circuit

JEL Classification: J78, K10

Accepted Paper Series





Download This Paper

Date posted: April 27, 2014  

Suggested Citation

Bernstein, David, Schuette v. Coalition to Defend Affirmative Action and the Failed Attempt to Square a Circle (2013). NYU Journal of Law & Liberty, Vol. 8, No. 1, pp. 210-227, 2013; George Mason Law & Economics Research Paper No. 14-12. Available at SSRN: http://ssrn.com/abstract=2429403

Contact Information

David Eliot Bernstein (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)
HOME PAGE: http://mason.gmu.edu/~dbernste
Feedback to SSRN


Paper statistics
Abstract Views: 343
Downloads: 50

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.312 seconds