Discriminatory Antidiscrimination? Anti-discriminatory discrimination? Limits of Race Remedial Actions and Policy according to the U.S. Supreme Court

Two recent cases of the United States Supreme Court seem to diverge from the line of precedent commenced with Brown v. Board of Education (1955). The 5 to 4 decisions deplore discriminatory eff ects of the antidiscrimination policy. Justices are aware of the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other. Affi rmative action is still constitutional, but the heart of Brown is to achieve a system of determining admission to public schools on a non-racial basis. Remedial actions and regulations have to be narrowly tailored: race might be a component and only one of the factors. If not, the system threatens to defeat its own ends. Therefore, decisions of local authorities can neither use African- -American children as tools of desegregation compliance, nor lead to adverse effect on white fi refi ghters. Judicial activism or judicial restraint analysis is political and improper to evaluate the new Court’s opinions. But consciousness that every judicial nomination is essential should grow not only in the United States but in the Polish society as well.

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