Public Opinion and Strict Scrtiny Equal Protection Review: Higher Education Affirmative Action and the Future of the Equal Protection Framework

16 Pages Posted: 7 Nov 2005  

Lawrence Friedman

New England Law | Boston

Abstract

Against the background of the debate over the constitutionality of state-sponsored higher education affirmative action programs, this Essay presents an account of the modern equal protection framework that balances a normative concern for the protection of individuals from discrimination and a structural concern for the counter-majoritarian difficulty. The author suggests that state-sponsored higher education affirmative action programs may survive strict scrutiny, and that proposals urging the judicial consideration of public opinion about such programs should be rejected. Even if public opinion could be accurately gauged, it should not influence the application of strict scrutiny to such programs, or play any part in equal protection review.

Keywords: Affirmative action, Equality before the Law, Higher Education, Government Regulation, Equal Protection

Suggested Citation

Friedman, Lawrence, Public Opinion and Strict Scrtiny Equal Protection Review: Higher Education Affirmative Action and the Future of the Equal Protection Framework. Boston College Third World Law Journal, Vol. 24, pp. 267-282, 2004. Available at SSRN: https://ssrn.com/abstract=839224

Lawrence Friedman (Contact Author)

New England Law | Boston ( email )

154 Stuart Street
Boston, MA 02116
United States
617-451-0010 (Phone)

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