Roads Not Taken on Affirmative Action

Abstract

The law of affirmative action is a mess. In the short-term, legal doctrine is constrained by path
dependence, but its long-term future is murkier due to the many contingencies we cannot foresee. To regain a sense of the possible, this symposium essay looks to the future of equality jurisprudence by looking backward. I recover three roads not taken. First, the Supreme Court could have kept expectations minimal by hewing closely to the methods and rhetoric of fairness rather than ratifying a consumerist model of entitlement by deploying an individualistic vision of equality. Second, the justices might have endorsed a robust right to higher education. Third, they could have showed consistent respect for universities and colleges as distinctive communities by embracing their collective right to self-expression. Instead of taking any of these roads, the Supreme Court has used the equal protection clause to protect something of uncertain social worth and deepened suspicion of educational institutions. Ultimately, how long we remain in the current quandary—aggressive judicial supervision of university admissions and an impoverished conception of higher education as a social good—will depend on whether judges tire of the status quo and the rest of us perceive the real stakes and demand something better.

Keywords: affirmative action, equality, universities, college admissions, fairness, due process, first amendment, self-expression, constitutional law