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Chautauqua Institution
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CWRU Law School
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CWRU Law School
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Affirmative Action as Government Speech: A First Amendment Analysis of the Colorblindness Doctrine
Arthur W. Fiske Memorial Lecture
OCT 4, 2010
4:30 PM - 5:30 PM
Moot Courtroom (A59)

Supreme Court affirmative action cases can be divided into two categories. First are those cases in which race-conscious government action provides a material benefit or preference to members of a minority group (e.g., Adarand and Grutter). Second are those cases where the government takes race-conscious action without causing any concrete disadvantage to non-minorities (e.g., Shaw v. Reno, Parents Involved). Under the Courts current Equal Protection doctrine, both categories of cases are presumptively unconstitutional because they both violate the principle of colorblindness.

The colorblindness doctrine is best understood as implicitly holding that non-disadvantaging affirmative action constitutes an expressive harm. This article will expand upon the existing scholarship by arguing that functionally, the Court has come to view race-conscious, non-disadvantaging government action as a form of prohibited government speech. In essence, the Court has decided that when the government takes such action, it is sending an unconstitutional message that race still matters in our society. Under the government speech doctrine, however, the government is free to express its own message provided it does not restrict or compel private speech. The fact that members of the Court disagree with this message does not make it unconstitutional.
Speaker Information
William CarterWilliam Carter
Professor, Temple University
Beasley School of Law

William M. Carter, Jr. specializes in constitutional law, civil rights, critical race theory, and international human rights law. His articles have been published in respected journals such as the Harvard Civil Rights-Civil Liberties Law Review, U.C. Davis Law Review, Maryland Law Review, and the Berkeley Journal of International Law. Professor Carter has taught courses in the areas of civil procedure, civil rights, constitutional law, and international human rights law. He is widely considered to be one of the leading experts on the Thirteenth Amendment.

Professor Carter received his J.D., magna cum laude and Order of the Coif, from Case Western Reserve University Law School in 1998. Upon graduation from law school, Professor Carter worked as a litigation associate in the Washington, D.C. offices of Squire, Sanders & Dempsey and Ropes & Gray. From 2001-2007, Professor Carter was a Professor of Law at Case Western Reserve University School of Law. He joined the Temple faculty in 2007.
Additional Information
Open to the public at no cost.

1.0 hour CLE credit will be available to lawyers who attend.

At one-hour CLE activities, Ohio Supreme Court regulations require attorneys to be present for the entire hour to obtain credit. Therefore, registration for one-hour lectures will close at the time the event is scheduled to start. Everyone is welcome to attend the lecture, but we cannot submit CLE credit for late arrivals.

At events longer than one hour, we will submit credit based on an attorney’s arrival time and duration of attendance, but no less than the minimum of one full hour of attendance.

We encourage attendees to arrive at registration 20 minutes prior to the start of a lecture to sign in, obtain materials, and be seated.
There is no law school parking, however, public parking, for a fee, is available in the Cleveland Botanical Garden parking underground garage. Also, meter parking might be available.

Supplemental Readings:
- Carter Bibliography
- 13th Amendment Framework
- Race, Rights and the 13th Amendment
- Landmark Case at 40
- Toward a 13th Amendment Exclusionary Rule

Recording in any form is prohibited.

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