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North Carolina Law Review




Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In contrast to Justice Powell’s emphasis on the unique nature of higher education, formalist approaches rely on the plain meaning of a statute or constitutional provision. Shorn of context and values, textual interpretation leaves the Justices susceptible to risks of false equivalencies and missed analogies. False equivalencies treat categories as the same when they are in fact different, while missed analogies treat categories as different when they are the same.

Both dangers can infect affirmative action jurisprudence. Under the First Amendment, the Justices have failed to recognize the importance of both sectarian organizations and institutions of higher education in preserving the conditions for robust discourse. As a result, the Court has grown increasingly deferential to religious freedom but more skeptical of the autonomy of colleges and universities to weigh race in admissions. That missed analogy in turn is compounded by a false equivalency, one that inheres in formal colorblindness. Under the Fourteenth Amendment, the Justices have treated all considerations of race as similarly pernicious, equating acts that discriminate against historically underrepresented groups with those that seek to include them. Taken together, declining deference for colleges and universities and an entrenched commitment to a colorblind Constitution could spell the end for affirmative action. Despite these failings of formalism, however, I will show that these programs can still survive exacting judicial scrutiny.

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University of North Carolina School of Law

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