Strengthening Constitutional Self-Government

No Left Turns

Death, taxes, and . . . affirmative action?

In Peter Kirsanow’s aptly titled column for National Review, "The Never-Ending Story,"the newest member of the U.S. Civil Rights Commission wonders aloud if there is any end in sight for affirmative action. He reminds us that two recent circuit court cases disagree over the question of the duration of affirmative action policies: specifically, must they be of "finite duration" to pass muster under the "narrowly tailored" portion of the Supreme Court’s strict scrutiny test?

Will the high court take the opportunity this term to resolve this discrepancy at the lower court level? Although the Court has not applied a duration threshold in affirmative action cases involving education, O’Connor and Scalia raised it during the recent oral arguments on the University of Michigan’s preferential admissions policies.

Given the complexity of the lower court rulings and the hundreds of "friend of the court" briefs filed in the Michigan cases, the Court’s decision is not expected until their term ends in late June. By then we’ll know if July 4th should be an occasion to celebrate the truth that all men are created equal, or simply a great day for burning firecrackers!!!

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