Accurate, Focused Research on Law, Technology and Knowledge Discovery Since 2002

Discrimination Blocking: A New Compelling Interest for Affirmative Action

Dec 12, 2022. 136 Harv. L. Rev. 690. “…This Note argues that the Court should recognize a new compelling interest for university affirmative action. Call this interest “discrimination blocking.” Though discrimination blocking may well justify identity-conscious policies in a wide range of contexts, this Note cabins its focus on “affirmative action” to race-based admissions policies in higher education. Discrimination blocking recognizes that universities must take account of applicants’ race to accurately ascertain applicants’ potential. It is an application of Aristotle’s commonsensical observa-tion that an archer must account for wind to hit a target. And it is a justification for affirmative action that the Court has written of approvingly — but has yet to consider as a compelling interest. This Note provides a defense of discrimination blocking as a compelling interest. Part I summarizes the doctrinal framework of affirmative action, highlighting some of its inconsistencies. Part II argues that a new compelling interest may untangle the doctrine. It argues that discrimination blocking is compelling, that it can be narrowly tailored, and that it is good doctrine and policy. Part III defends discrimination blocking from various criticisms. With diversity-based affirmative action under unprecedented pressure, discrimination blocking offers a solid foundation for affirmative action…”

Sorry, comments are closed for this post.