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... Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government

...Professor Ely [see pp. 208-216, herein] defends the constitutionality of racial preferences, essentially on the ground that the equal-protection clause should not be read to prevent a majority from discriminating between itself and a minority only to its own disadvantage. The predicate for an active judicial role is lacking, ... and, he concludes, resolution of the issue therefore ought to be left to the political process.

Professor Posner ["The DeFunis Case and the Constitutionality of Preferential Treatment of Minorities," 1974 Supreme Court Review 1), on the other hand, argues that the equal-protection clause should be read to prohibit "the distribution of benefits and costs by government on racial or ethnic grounds." Ironically, Posner defends this judicial limitation of legislativepower in part by arguing that a decision sustaining the constitutionality of minority preferences would intolerably augment the power of the judiciary to determine the direction of social policy. Courts must limit legislative power, as it were, in the service of democratic ideals.

Neither position, in my judgment, adequately confronts the problem of the judicial role in a democracy. The value choices are inescapable if the equal-protection clause is to be employed as a measure of legislative power. Precisely because such choices are essential whenever the clause is used to limit legislative power, however, appropriate sensitivity to the values served by democratic decision-making requires courts to defer to legislative judgments unless they clearly transgress constitutional tradition. Nothing in American constitutional tradition requires courts to deny legislature the power to authorize preferential-admissions policies for racial and ethnic minorities. The validity of such policies depends only upon a judgment that they serve the public welfare.

The precise question posed by DeFunis and like cases, however, is not whether preferential-admissions policies are within the competence of a legislature, but whether they are valid when adopted by a university without explicit legislative sanction. There is, I shall argue, a significant difference between these questions, and because of that difference existing racial-preference programs draw no support from Ely's analysis. Although there is good reason to sustain preferential policies in any event, the grounds for such a judgment are far less compelling than they would be if the policies had received explicit legislative approval.


Originally published as Sandalow, Terrance. "Racial Preferences in Higher Education: Political Responsibility and the Judicial Role." In Reverse Discrimination, edited by B. R. Gross. Buffalo, N.Y.: Prometheus Books, 1977.