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

36 Pages Posted: 26 Mar 2015 Last revised: 21 Apr 2015

See all articles by Mario L. Barnes

Mario L. Barnes

University of Washington - School of Law

Erwin Chemerinsky

University of California, Berkeley - School of Law

Angela Onwuachi-Willig

Boston University School of Law

Date Written: March 25, 2015

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.

Suggested Citation

Barnes, Mario L. and Chemerinsky, Erwin and Onwuachi-Willig, Angela, Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action after Fisher v. University of Texas (March 25, 2015). UCLA Law Review, Vol. 62, No. 2, 2015; U Iowa Legal Studies Research Paper No. 15-10; UC Irvine School of Law Research Paper No. 2015-29. Available at SSRN: https://ssrn.com/abstract=2585124

Mario L. Barnes (Contact Author)

University of Washington - School of Law ( email )

William H. Gates Hall
Box 353020
Seattle, WA 98105-3020
United States

Erwin Chemerinsky

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: https://www.law.berkeley.edu/our-faculty/faculty-profiles/erwin-chemerinsky/

Angela Onwuachi-Willig

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
6415102368 (Phone)

HOME PAGE: http://www.bu.edu/law/profile/angela-onwuachi-willig/

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