Article by Burt Neuborne
In the sixteen years since the issue was first explicitly broached in the Supreme Court, the legality of so-called “affirmative action” programs that use race or gender as allocable criterion in an effort to benefit women or members of racial minorities has been before the Court on at least twenty occasions. Not surprisingly, given the difficult legal and moral issues raised by “benign” discrimination in favor of the targets of past injustice, the Court has experienced difficulty in articulating a set of general principles governing affirmative action. Despite the often fragmented nature of the Court's efforts, I believe the Court's jurisprudence yields valuable general principles that suggest a constructive path through the legal and moral thicket posed by affirmative action. Although it would be intellectually dishonest, as well as fruitless, to argue that the Court has announced definitively an authoritative set of principles governing the legality of affirmative action plans, the Justices have struggled with the issues and have produced a body of case law from which one may deduce the outlines of a coherent structure. In the spirit of seeking to derive principles from the process of common-law judging, I propose the following notes for a Restatement (First) of the Law of Affirmative Action.
About the Author
Burt Neuborne. Professor of Law, New York University.
Citation
64 Tul. L. Rev. 1543 (1990)