San Diego Law Review


Nancy L. Zisk

Library of Congress Authority File


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This Article … considers the tension that exists between the goal of achieving diversity in United States’ classrooms and workplaces in light of the limitations placed on the consideration of a person’s race, color, gender, or ethnicity and the differences in the law that controls employment and education. Section II reviews the constitutional and federal guarantees of equal protection across all sectors of society, focusing specifically on education and the workplace. Section III examines the current standard for the permissible consideration of race in university admissions programs, which stands in stark contrast to the impermissible consideration of race in employment decisions, discussed in Section IV. Section V proposes that the law governing employment may have to change to allow employers to achieve diversity by acknowledging that race is a factor, but only one factor of many, in an employment decision, as it has been upheld in university admission decisions. In Section VI, the Article concludes that the law should change to allow for the open consideration of race in employment, as in education, so that companies and organizations do not “resort to camouflage” to achieve their diversity goals. If the law in employment does not change, then, as Justice Ginsburg warned, employers will be left with no choice but to achieve diversity “through winks, nods, and disguises.”

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