Erwin Chemerinsky is the founding dean, distinguished professor of law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law, with a joint appointment in political science. His areas of expertise are constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. Previously, he taught at Duke Law School, where he won the Duke University Scholar-Teacher of the Year Award, USC School of Law, UCLA School of Law, and DePaul University College of Law. He is the author of eight books, including The Case Against the Supreme Court (2014), and more than 200 articles in top law reviews. He frequently argues cases before the nations highest courts, including the U.S. Supreme Court, and also serves as a commentator on legal issues for national and local media. In January 2014, National Jurist magazine named Chemerinsky as the most influential person in legal education in the U.S.
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This Paper analyzes the University of Michigan cases and discusses their impact on higher education policy making and on the constitutional assessment of affirmative action programs.
No state is required to have an affirmative action program, and a law prohibiting affirmative action is constitutional. But when the ban is done through a constitutional amendment, the matter is taken out of the usual political process, and the result is to impose a burden uniquely on racial minorities.
In this article, the authors 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.