The Hypocrisy of Sex or Pregnancy-Based Affirmative Action

Abstract

The Supreme Court’s sex-based jurisprudence has always been a mess; the Court, for example, is not even willing to conceptualize pregnancy-based discrimination as sex discrimination. But, oddly, within this mess, the Court has consistently recognized sex-based affirmative action as consistent with its sex discrimination jurisprudence.

The Supreme Court’s race-based affirmative action jurisprudence has consisted of a different kind of mess, a confusion stemming from its choice to narrowly justify affirmative action in college admissions based on the need for a robust exchange of ideas rather than on the need to remedy centuries of race-based subjugation in our society. After decades of hammering away at this limited justification, the Court has now seemingly abandoned the race-based affirmative action enterprise altogether. This states’ rights Court has swept broadly by taking away the opportunity for state and private actors to craft effective affirmative action programs.

While critiquing this Court’s sex- and race-based jurisprudence, this Article highlights one bizarre but salutary logical outcome from these constitutional strands. Both sex-based and pregnancy-based affirmative action should be found constitutional under the logic of the Court’s existing jurisprudence. This Article urges state entities to aggressively push both sex-based and pregnancy-based affirmative action to remedy historical vestiges of discrimination in both arenas while also making the public and the courts see the absurdity of the current situation. While it is hard to imagine the current Court changing course on the need for race-based affirmative action, I hope this Article can help reinvigorate discussions about the Court’s approach to race-based affirmative action by drawing on the Court’s recognition of the continuing need for sex-based affirmative action. The robust exchange of ideas justification for race-based affirmative action has done its damage and needs to be replaced by an anti-subordination approach, which has been somewhat reflected in the Court’s sex-based jurisprudence.