Alan Dershowitz: SCOTUS Made Right Decision on Affirmative Action Case

Monday, 24 Jun 2013 05:24 PM

By Bill Hoffmann

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The decision by the U.S. Supreme Court to sidestep a high-profile affirmative action case by sending it back to a lower court for further review was the right one, civil-rights lawyer Alan Dershowitz believes.

The case concerned the admissions policy at the University of Texas — which uses race as one factor for admitting some students — and whether it violates the equal protection rights of some white applicants.

"Your assumption should always be judging people on the basis of their character, as Martin Luther King put it, not on the basis of race," Dershowitz told "The Steve Malzberg Show" on Newsmax TV.

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"But, there can be exceptional situations and what the court [did is] … turned the light from green to yellow and said, 'Do it cautiously, go slow. If you're smart and you come up with the justification we'll let you do it — but you have to show the glove fits the situation.'"

Dershowitz said there was a time in American history where race-based affirmative action was crucially important to help minorities get equal footing.

"There are those who now think that maybe we're beginning to see the end of the need for that and maybe we're going through a transition period," he said.

"Affirmative action has worked and whatever the Supreme Court says, universities are going to use it. They may use it surreptitiously, they may try to hide what they're doing, or they may do it more openly, and that's what this decision was about.

"Do you do it openly or do try to come up with justifications that may allow the Supreme Court to affirm you but are less honest?"

Dershowitz also said he believes the judges on the current U.S. Supreme Court may have sidestepped the case because they like to avoid ruling on hot-button issues.

"[The court] may very well at the end of this week or next week duck the big gay-marriage issue by saying it's a matter of federalism, a matter of California state law," he said.

"We may not see the big decisions coming from this court for a while."

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