Publication Date

1-1-2011

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Ricci, Ricci v. DeStefano, Affirmative action, Title VII, Justice Kennedy, Disparate impact, Preferences, Minorities, Constitutional law, Civil rights

Abstract

This Article argues that Ricci v. DeStefano, while having dealt a blow to disparate impact theory, has not necessarily dealt a fatal blow to affirmative action in the process. Many believe that Ricci has no implications for affirmative action at all since the case’s facts involved no preferences for minorities. However, I believe that dicta in the case suggests how the Court may handle a Title VII affirmative action case in the future, even though I agree that no affirmative action issue was before the Court in Ricci. The key to understanding Ricci and to anticipating the foreseeable future of affirmative action lies in understanding Justice Kennedy’s emerging views, assuming new Justices Sotomayor and Kagan follow relatively liberal paths. Specifically, Justice Kennedy—stepping into the “swing-vote” role formerly held by Justice O’Connor—has adopted key elements of Justice O’Connor’s position on affirmative action: hostile and restrictive, yes, but not entirely opposed to it as are the more conservative members of the Court.

Rights Holder

Roberto L. Corrada, Wake Forest Law Review

File Format

application/pdf

Language

English (eng)

Extent

20 pgs

File Size

137 KB

Publication Statement

Copyright held by the author. User is responsible for all copyright compliance.

This article was originally published as Roberto L. Corrada, Ricci’s Dicta: Signaling A New Standard For Affirmative Action Under Title VII?, 46 Wake Forest L. Rev. 241 (2011).

Volume

46

First Page

241

Last Page

260

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