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I will address racial harassment on college campuses and the growing and controversial efforts to regulate it. As the First Amendment issues involved in regulation have been extensively canvassed elsewhere, I will consider instead whether one might usefully think about harassment as discrimination—as some scholars have lately suggested—and whether, if harassment is so envisioned, it might run afoul of the Equal Protection Clause of the Fourteenth Amendment. I will use the problem of harassment to illuminate three approaches to Fourteenth Amendment jurisprudence, discussing the strengths and weaknesses of each and explaining which approach seems to be most sensible, and why.
I will suggest that for an originalist, what I call the anti-oppression principle might well be the most coherent model for resolving equal protection claims. Then, reading doctrine through the glass of this principle, I conclude (tentatively, I admit) that although much of what is termed racial harassment is permissible, if horrible, a Fourteenth Amendment action ought to lie if a state school refuses to protect its students of color from harassment that has analogues in forms of torment from which white students are pfotected—a situation that might be more common than it first appears.
As the title of this Article suggests, however, my conclusion is so far a tentative one. The reason for my caution relates to my approach to constitutional interpretation. I prefer models of constitutional interpretation resting on the text, structure, and history of the document itself; I suppose one would have to say that I am an originalist. At this point, however, my historical understanding of the framing of the Fourteenth Amendment rests entirely on a study of a handful of secondary sources. In a longer work now in progress, I will mine the primary sources; for the purposes of this Article, let" it suffice to say that my statements about the history should be taken as the very preliminary notions that I intend.
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