Justifying Affirmative Action in K-12 Private Schools


In this Comment, the author examines the consequences of using substantially identical rules to govern affirmative action in both private employers and private schools. The author explores the law that governs private affirmative action and the justifications that courts have accepted for private affirmative action, focusing on whether these justifications are internal or external to the defendant. The author contends that the Supreme Court’s dicta in Johnson v. Transportation Agency, viewed in light of developments in Equal Protection Clause jurisprudence, weigh in favor of using external imbalances to justify private affirmative action. The author demonstrates that departing from the affirmative-action rule for private employers – by allowing private schools to use external racial imbalances as justifications for their affirmative action policies – results in the most effective allocation of incentives and means for private schools to remedy racial disparities. In contrast to private employers and private colleges, the author proposes that K-12 private schools be able to use external imbalances to justify their affirmative action policies because such affirmative action benefits society more than currently permitted forms of affirmative action.


Civil Rights and Discrimination | Education Law | Law and Society | Social Welfare Law

Date of this Version

September 2006