Affirmative Action: Unresolved Questions Amidst a Changing Judiciary


Affirmative action has proven to be one of the most controversial areas of civil rights law, spawning a large number of plurality and closely divided opinions by a highly fragmented Supreme Court. In many respects, the Court’s difficulty in providing bright line rules to govern this area is a reflection of the divisions in society surrounding the issue and the highly politicized context in which it arises.

This Article refers to affirmative action as a mechanism for providing preferences to certain applicants for specific benefits because those applicants possess traits which have been used in the past as a basis for discriminating against members of the group to which they belong. The most frequent and controversial use of affirmative action under this definition has occurred where private parties or public authorities have accorded preferential treatment tomembers of racial or ethnic groups or to women. Affirmative action has also been provided, however, to veterans, persons with disabilities or handicaps, and, in some cases, to persons of a particular sexual orientation.

Assuming that the number of cases decided by the Supreme Court is an accurate indication of the most disputed areas of affirmative action, the issue of racial preferences is at the top of the list. The Court has decided at least twelve cases involving challenges by whites to the legality of such preferences. These decisions, however, still leave many important issues unresolved, and the future of affirmative action uncertain. This Article seeks to identify some of these issues and to provide some insight as to how they will be resolved infuture litigation.

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