Affirmative Action: The Constitution, Jurisprudence and the Formulation of Policy

Abstract

The "reverse discrimination" controversy has, for many years, sparked a veritable deluge of comment. Indeed, it may well be that the extent of the sutained debate is exceeded only by the amount of comment provoked by the Supreme Court's abortion decisions.

This article explores the "reverse discrimination" controversy in traditional equal protection terms. Threafter, the paper conducts a jurisprudential analysis of the "reverse discrimination" question. This article then explores the first principles undergirding applicable constitutional guarantees and finds such principles inconsistent with the notions of communal guilt and remediation on which many affirmative action programs are predicated. Finally, this article considers and finds a number of the public policy implications of "reverse discrimination" problematic in both the long and short terms.

Keywords: affirmative action, reverse discrimination, DeFunis, Bakke, suspect class, equal protection