Document Type
Article
Publication Date
2024
ISSN
0586-5964
Publisher
Seton Hall University School of Law
Language
en-US
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 unforeseen contingencies. To regain a sense of the possible, this Article looks forward to the future of equality jurisprudence by looking backward. It recovers 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. Doing so would finally tell us about the nature of this social good as well as the scope of judicially enforced access to it. 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 this current quandary will remain-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.
Recommended Citation
Robert L. Tsai,
Roads Not Taken on Affirmative Action
,
in
54
Seton Hall Law Review
1419
(2024).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/3904
Included in
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