The author cannot say that she disagrees with any of the analytical observations made by her co-contributors to this roundtable discussion of Fisher v. University of Texas at Austin. They all agree that the Supreme Court plans to use the case as an occasion to do something noteworthy to the constitutionality of affirmative action. And they all agree that the Court’s actions are likely to provide more comfort to opponents than to proponents of racial diversity. Their views diverge only with respect to doctrinal details about what the Court could or should do. But in translating the racial tensions that smolder beneath the concept of affirmative action into the more sanitized doctrinal issues that the Court has made relevant to its discussion of constitutionality, the author fears that we may have lost sight of what is really at stake. At bottom, the affirmative action debate is about our continuing cultural commitment to a long tradition of racial oppression. But by acquiescing in the Court’s effort to obscure that oppression with the patina of doctrine, we run the risk of offering analytical insights that may simply be beside the point.
65 Vand. L. Rev. (En Banc) 203-209 (2012)
Scholarly Commons Citation
Spann, Girardeau A., "Whatever" (2012). Georgetown Law Faculty Publications and Other Works. Paper 1084.