The river runs dry: When title VI trumps state anti-affirmative action laws

Abstract

This Article examines the new genre of laws enacted pursuant to state anti-affirmative action ballot initiatives like California Proposition 209, Washington Initiative 200, Michigan Proposal 2 and Nebraska Initiative 424. It explores the tension between state anti-affirmative action laws and federal anti-discrimination law. It considers whether universities that completely abolish race-based affirmative action to comply with state anti-affirmative action initiatives may actually be breaking the law with respect to Title VI federal law. The Article also considers whether improper use of the SAT as an admissions criterion makes selective universities potentially liable for violating Title VI and its regulations and creates a remedial justification for considering race in admissions. By analyzing racial differences in rates of admission to the most selective California and Washington public universities, the Article reveals that institutions accused of "cheating" by admitting too many minority applicants have admitted white applicants at consistently higher rates than African Americans and Latinos since the passage of state anti-affirmative action laws.

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