Judging Opportunity Lost: Assessing the Viability of Race-Based Affirmative Action After Fisher v. University of Texas


In this Article, Mario Barnes, Erwin Chemerinsky, and Angela Onwuachi-Willig examine and analyze one recent, affirmative action case, Fisher v. University of Texas, Austin, as a means of highlighting why the anti-subordination or equal opportunity approach, as opposed to the anti-classification approach, is the correct approach for analyzing equal protection cases. In so doing, these authors highlight several opportunities that the U.S. Supreme Court missed to acknowledge and explicate the way in which race, racism, and racial privilege operate in society and thus advance the anti-subordination approach to equal protection. In the end, the authors suggest that, with regard to race-conscious affirmative action, courts should guide their consideration by the role that law must play in mitigating long-term, structural disadvantages maintained through race, which now functions as caste within the United States.

About the Author

Mario L. Barnes is the Associate Dean for Research and Faculty Development and Professor of Law, Joint appointment in Law & Criminology and Law & Society (by courtesy), and Faculty Affiliate in the Center in Law, Society & Culture, at the University of California, Irvine School of Law. He received his B.A. and J.D. from the University of California-Berkeley and his LL.M. from the University of Wisconsin. He can be reached at mbarnes@law.uci.edu.

Erwin Chemerinsky is the Dean, Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He received his B.S. from Northwestern University and his J.D. from Harvard Law School. He can be reached at echemerinsky@law.uci.edu.

Angela Onwuachi-Willig is a Visiting Professor of Law at Yale Law School and the Charles and Marion Kierscht Professor of Law at the University of Iowa. She received her B.A. from Grinnell College, her J.D. from the University of Michigan Law School, and her M.A. from Yale University. She can be reached at angela-onwuachi@uiowa.edu.

By uclalaw