Courts Continue to Move Away from Racial Preferences – Brief Article
Hans S. Nichols
Racial preferences appear to be withering on the judicial vine. This week the 11th U.S. Circuit Court of Appeals in Atlanta ruled that the University of Georgia’s admission policies are unconstitutional. As lawyers pore over the decision, it seems that one of the most famous arguments for racial preferences — those established by Justice Lewis Powell in the Regents of the University of California v. Bakke decision in 1978 — are being hollowed out.
In Bakke, Powell argued that universities could strive toward “racial diversity” because it constituted a “compelling interest” and therefore met constitutional muster. But Powell’s was the only signature to his opinion and, while he joined four other justices in upholding racial preferences, they arrived at their conclusion under different logic.
The Georgia case is unique because it strikes down both Powell’s argument as well as the pretense that his lone opinion was the holding for the entire court, says Curt Levy of the Center for Individual Rights, a nonprofit law firm dedicated to eliminating racial preferences. The Georgia case still can be appealed to the Supreme Court, though Levy doesn’t expect the court to accept certiorari. Instead, he suspects that the court may choose one of the other five pending cases to offer a definitive ruling on racial preferences.
Regardless of the high court’s intentions, the Georgia decision is an indicator that the judiciary is moving away from Powell’s defense of racial preferences in Bakke. “Hopefully, we can begin to recover on our campuses the original meaning of affirmative action, which rightly sought to guarantee everyone a fair chance, regardless of race,” notes Bradford Wilson of the National Association of Scholars.
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