Affirmative Action, Selective Memory Loss, and the Mistakes of Adarand

7 Pages Posted: 19 Nov 2009

Date Written: 1995


The writer argues that affirmative action is necessary and essential in order to create a society that truly affords equal opportunity to all. Obstacles to this goal are outlined beginning in the Reconstruction era, and where a number of subsequent decisions by the Supreme Court seem to show a retreat from the intent of statutes calling for equal treatment. Particularly noted is the much more recent case of Adarand Constructors, Inc. v. Pena. The author points out that many decisions which go backwards in this area are the result of justices being forgetful of the first case to construe the Equal Protection Clause of the Fourteenth Amendment, the 1873 Slaughter House Cases.

Keywords: Supreme Court, affirmative action, racial discrimination, gender discrimination, Adarand Constructors, Inc. v. Pena, selective memory loss, Fifth Amendment, Due Process Clause, Fourteenth Amendment, Equal Protection Clause

JEL Classification: K19, K29, K39, K49, J71, J78

Suggested Citation

Higginbotham, F. Michael, Affirmative Action, Selective Memory Loss, and the Mistakes of Adarand (1995). NYU Annual Survey of American Law, No. 3, 1995, Available at SSRN: or

F. Michael Higginbotham (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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