Donald B. Ayer


I would like today to offer some thoughts on the way that we as a country have handled the issue of reverse discrimination as a means of pursuing equal opportunity.

My first observation is that there is an undeniable tension between competing approaches to racial and gender justice that have been advanced and pursued in recent years. I take as my starting point the fundamental principle embodied in the Equal Protection Clause (as well as the Declaration of Independence), that, as the elder Justice Harlan said in dissent in Plessy v. Ferguson,' the Constitution is colorblind, and does not allow for official distinction by governmental bodies on the basis of a person's race. This principle reached its long-delayed realization in the 1954 decision in Brown v. Board of Education,2 and has been at the core of most civil rights enforcement since that time. The numerous civil rights statutes of the 1960's and '70's had as their fundamental premise the notion that treatment of persons on account of certain specified immutable traits that are unrelated to merits or ability is wrong as a matter both of morality and of national policy.