Will the justices end race-based affirmative action?
The Hill | Alan Dershowitz
Alan Dershowitz (HLS professor emeritus) reviews how the justices will vote and what factors they may take into account. He also discusses the idea of evading the ruling, if a “floor” for some groups necessitates a ceiling for others, and the opportunity a ruling against affirmative action could bring.
“As an abstract constitutional matter, the issue seems clear: The son of a Black hedge-fund billionaire who went to Exeter should not be given an admission advantage over a poor white woman with no political connections. But the issue is rarely presented to college admissions committees or to courts in so abstract a manner. Race often, though not always, serves as a surrogate for factors.”
In the piece, Dershowitz also has a biting response to Tribe's contention that Harvard will find ways of dealing with a ruling against affirmative action: "Imagine if a law professor had suggested that southern schools find 'subtle' ways of 'dealing with' court-ordered desegregation!"
Dershowitz raises the question of whether there’s a “floor” for certain minority groups, and how that relates to quotas: “If there is an educational advantage to having a number of people of a particular race in the entering class, can that number be turned into a floor? And if there is a floor for some, does that necessarily mean there is a ceiling for others? In other words, are quotas inherent in any system of race-based affirmative action?”
In the end, Dershowitz sees an opportunity: “The Supreme Court will not settle all the divisive issues surrounding race. It may, however, articulate an important principle that race alone can neither confer governmentally approved advantages or disadvantages.”
