The Case of the Vanishing Protected Class: Reflections on Reverse Discrimination, Affirmative Action and Racial Balancing

18 Pages Posted: 5 Nov 2009

See all articles by David S. Schwartz

David S. Schwartz

University of Wisconsin Law School

Date Written: November 4, 2009

Abstract

This article argues that the "symmetrical" or "colorlind" approach to discrimination cases adopted by the federal courts "that discrimination against white males is just as bad as discrimination against minorities and women" contradicts the original intent of the Civil Rights Act of 1964 to promote the interests of minorities to an equal share in employment and education. Moreover, in its affirmative action/reverse discrimination jurisprudence, the federal courts have stepped far outside their proper role. Due largely to a liberal mythology, created around Brown v. Board of Education, holding that the Supreme Court is a progressive force in racial justice, most American lawyers and judges accept without question that all issues of apparent race discrimination, including reverse discrimination/ affirmative action, should be decided in the courts. However, the Court's affirmative action/ reverse discrimination jurisprudence is little more than a kind of race-based bargaining or social engineering for which the courts are ill suited, and which would be better left to resolution in the political process.

Keywords: discrimination, federal court, civil rights, Civil Rights Act, affirmative action

JEL Classification: K31

Suggested Citation

Schwartz, David S., The Case of the Vanishing Protected Class: Reflections on Reverse Discrimination, Affirmative Action and Racial Balancing (November 4, 2009). Wisconsin Law Review, No. 2, p. 657, 2000, Available at SSRN: https://ssrn.com/abstract=1499942

David S. Schwartz (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
537
Abstract Views
2,195
Rank
95,323
PlumX Metrics