Judging Opportunity Lost: Race-based Affirmative Action and Equality Jurisprudence After Fisher v. University of Texas

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Within United States history, social and judicial understandings of the Constitution’s pronouncement, “[N] or shall any State deny to any person within its jurisdiction equal protection of the laws,” have been deeply conflicted when applied to the concept of race. For example, in 1896, in the case of Plessy v. Ferguson , the U.S. Supreme Court held that state laws requiring racially segregated public accommodations did not violate the Equal Protection Clause of the Fourteenth Amendment. This endorsement of segregation as being consistent with the goals of equality, however, was famously revisited in 1954, in Brown v. Board of Education, where the Court struck down Plessy ’s “separate but equal” mandate. In so doing, the Court signaled that the language of the Fourteenth Amendment should be understood as rejecting state-enforced racial segregation as constitutionally permissible. As shifting as the Court’s treatment of race has been, these two cases reflect the Court dealing with programs designed to disadvantage racial minorities. Even more controversial in our country’s recent history, however, have been state considerations of race that have advantaged members of certain discrete minority racial groups. These programs, which have been constructed for myriad purposes including remedying past racial exclusion to fostering racial inclusion and diversity, have typically come to be referred to as affirmative action.

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