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In response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti–Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009).

Professor Kimberly West-Faulcon has identified a tension between state anti-affirmative action laws and the continued enrollment of minority students in public universities, and the author argues the tension is not surprising, because the voter initiatives that led to those state anti-affirmative action laws were transparently motivated by white majoritarian desires to reduce minority student enrollment in public universities. He feels what is surprising, however, is Professor West-Faulcon’s suggestion that state anti-affirmative action laws can themselves be read to permit precisely the type of race-conscious affirmative action that they might initially be thought to prohibit.

Capitalizing on the self-interested desires of states to avoid federal-funding cutoffs, Professor West-Faulcon constructs an argument that is both analytically sound and enticingly clever. However, that does not mean that the argument is free from a potentially fatal flaw. The problem is that doctrinal arguments alone cannot compel adherence to policies that are sufficiently unpopular to mobilize effective political opposition. Alternate doctrinal arguments can always be developed that are cogent enough to support the outcomes favored by socially powerful opponents, and the original argument can always be marginalized to the point where its analytical soundness ceases to appear particularly relevant.

This problem creates a dilemma for those who are tempted to formulate doctrinal arguments as a means of advancing their own racial-equality agendas. Participation in a syllogistic game that purports to be governed by doctrinal rules but actually uses those rules simply to mask the dispositive role of political preferences runs the risk of reinforcing the authenticity of the game itself. But declining participation in the game precludes the possibility of securing even those occasional victories that are permitted in order to convey the impression that the game is legitimate. It is difficult to see how the dilemma can ever be satisfactorily resolved. However, the loss of innocence entailed in recognizing this doctrinal dilemma may, at least, constitute a step in the right direction.

Publication Citation

158 U. Pa. L. Rev. (PENNumbra) 129-139 (2009) (in response to Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. Pa. L. Rev. 1075 (2009))