Against the background of the debate over the constitutionality of state-sponsored higher education affirmative action programs, this Essay presents an account of the modern equal protection framework that balances a normative concern for the protection of individuals from discrimination and a structural concern for the counter-majoritarian difficulty. The author suggests that state-sponsored higher education affirmative action programs may survive strict scrutiny, and that proposals urging the judicial consideration of public opinion about such programs should be rejected. Even if public opinion could be accurately gauged, it should not influence the application of strict scrutiny to such programs, or play any part in equal protection review.
Civil Rights and Discrimination
- Journal title
Boston College Third World Law Journal
- Date submitted
7 September 2022