Professor Landsberg presents a responsive essay to Kirk Kennedy's Race-Exclusive Scholarships: Constitutional Vel Non. Professor Landsberg argues for the preservation of the Supreme Court's balanced approach to assessing the validity of affirmative action programs. Landsberg notes approvingly that the Court "has carefully avoided absolutes in deciding affirmative action cases," and criticizes Mr. Kennedy for his support of an absolute, all-or-nothing approach to race-exclusive scholarships. Landsberg argues first, that Regents of the University of California v. Bakke remains good law and that universities should not be enjoined from all race-conscious decisionmaking; second, that race-exclusive scholarships may, in narrow circumstances, be used to overcome the effects of past discrimination; and third, that in a broader range of circumstances, race may be used as a factor in deciding scholarship applications. Landsberg concludes by expressing hope that the Supreme Court will continue to avoid "mechanical formulae and blunderbuss rules," and instead retain its careful case-by-case consideration of race-conscious decisionmaking.
Brian K. Landsberg, Balanced Scholarship and Racial Balance, 30 Wake Forest L. Rev. 819 (1995)