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Schopp in Arizona Law Review (1990) 32. Copyright 1990, Arizona Law Review. Used by permission.


Future historians may contend that the Supreme Court decisions in Brown v. Board of Education and Griswold v. Connecticut represent the apex of liberal legal and political thought. Thirty-five years after Brown, however, the attempt to clarify and implement the jurisprudence of equal protection represented by that case remains incomplete. Programs designed to effectuate the equal protection mandate of Brown through methods such as busing, hiring quotas or goals, preferential treatment, and affirmative action continue to incite controversy. The Supreme Court's recent ruling in City of Richmond v. Croson Co. demonstrates that the justices remain deeply divided regarding the appropriate role and scope of affirmative action programs involving race-based classification or "reverse discrimination."

The long and difficult road toward practical implementation of Brown and the jurisprudence of equal protection can be attributed to many factors. These include the long history of segregation in the United States, the economic and political costs of some remedies, and many realistic and unrealistic fears associated with segregation and integration. It is reasonable to suggest, however, that the Brown Court may have unwittingly contributed to this extended controversy by failing to fully articulate a principled foundation for its decision. Indeed, even Herbert Wechsler, who supports the Brown decision, is troubled by the Court's failure to clearly ground its opinion in established legal principles.

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