Oct 4/Cleveland, OH - Affirmative Action as Government Speech: A First Amendment Analysis of the Colorblindness Doctrine

The Supreme Court's affirmative action cases can be divided into two categories. First are those cases in which race-conscious government action provides a material benefit or preference to members of a minority group (e.g., Adarand and Grutter). Second are those cases where the government takes race-conscious action without causing any concrete disadvantage to non-minorities (e.g., Shaw v. Reno, Parents Involved). Under the Court's current Equal Protection doctrine, both categories of cases are presumptively unconstitutional because they both violate the principle of colorblindness. The colorblindness doctrine is best understood as implicitly holding that non-disadvantaging affirmative action constitutes an expressive harm.This article will expand upon the existing scholarship by arguing that functionally, the Court has come to view race-conscious, non-disadvantaging government action as a form of prohibited government speech. In essence, the Court has decided that when the government takes such action, it is sending an unconstitutional message that race still matters in our society. Under the government speech doctrine, however, the government is free to express its own message provided it does not restrict or compel private speech. The fact that members of the Court disagree with this message does not make it unconstitutional. This topic will be useful to lawyers because it will describe in detail and critique the current state of the law regarding the Equal Protection Clause as applied to race-conscious government action and the government speech doctrine under the First Amendment. Oct 4, 2010 4:30 p.m. - 5:30 p.m. Arthur W. Fiske Memorial Lecture "Affirmative Action as Government Speech: A First Amendment Analysis of the Colorblindness Doctrine" Speaker Information: William Carter Professor, Temple University Beasley School of Law William M. Carter, Jr. specializes in constitutional law, civil rights, critical race theory, and international human rights law. His articles have been published in respected journals such as the Harvard Civil Rights-Civil Liberties Law Review, U.C. Davis Law Review, Maryland Law Review, and the Berkeley Journal of International Law. Professor Carter has taught courses in the areas of civil procedure, civil rights, constitutional law, and international human rights law. He is widely considered to be one of the leading experts on the Thirteenth Amendment. Professor Carter received his J.D., magna cum laude and Order of the Coif, from Case Western Reserve University Law School in 1998. Upon graduation from law school, Professor Carter worked as a litigation associate in the Washington, D.C. offices of Squire, Sanders & Dempsey and Ropes & Gray. From 2001-2007, Professor Carter was a Professor of Law at Case Western Reserve University School of Law. He joined the Temple faculty in 2007. Location: Moot Courtroom (A59) Case Western Reserve University 10900 Euclid Ave., Cleveland, Ohio 44106 CLE Credit: 1.0 hour of CLE credit available. More Information: http://law.case.edu//Lectures.aspx?lec_id=238 Additional Information: Open to the public at no cost. One FREE hour of CLE credit will be available to lawyers who attend. Please note - Recording in any form is prohibited.