William & Mary Bill of Rights Journal


In Podberesky v. Kirwan, the Fourth Circuit held that a University of Maryland scholarship designated for African-American students violated the Constitution's Equal Protection Clause. In so holding, the court contributed to the recent tradition of dismantling affirmative action programs in higher education. This Note explores the implications of Podberesky for other university settings, particularly faculty hiring and endowment programs. The first part of the Note's analysis concentrates on ways in which the Podberesky rationale may -be extended to university ,programs other than scholarships and student admissions. The Fourth Circuit's employment of a narrow set of factors in reviewing the scholarship program, the court's restrictive narrowly tailored analysis, and its refusal to recognize the importance of distinguishing the educational from the employment context for affirmative action purposes are examined and then applied to faculty programs. The second part of the Note examines possible ways to distinguish Podberesky's factual basis from other university affirmative action programs. This Note concludes that Podberesky will provide a means to limit further affirmative action in all areas of university administration, and, therefore, any attempts to increase diversity on a campus should focus more broadly on diverse subject areas and courses rather than on specific faculty appointments and endowed chairs.