My article Expressive Discrimination: Universities' First Amendment Right to Affirmative Action has finally been published by the Florida Law Review. In these days of federal attacks on private DEI, maybe some private universities might find this useful as a strategy for fighting back against the Trump Administration! I'll reproduce the Abstract and Introduction today, and continue to post the rest of the article next week. In the meantime (and especially if you want all the juicy footnotes), read the whole thing.
A note before starting: One of the earliest contributions to this literature was my co-blogger David Bernstein's 2001 article in the William & Mary Bill of Rights Journal. Another was David Geary's 2004 student note in The University of Chicago Law Review. Aside from that, there hasn't been much. A couple of articles were written more or less simultaneously with (and independently from) my article: Kent Greenfield's 2024 article in the American Journal of Law & Equality, and Part III of Taylor Barker's 2024 essay in the Stanford Law Review.
Abstract
