How the Diversity Rationale Lays the Groundwork for New Discrimination: Examining the Trajectory of Equal Protection Doctrine

Abstract:     
This article argues in favor of differentiating between two distinct categories of equal protection cases. The first - what I have termed indicator cases - are instances where a court considers whether there are sufficient factual indications to demonstrate the existence of a prima facie equal protection violation. The second - violation cases - are instances where a court considers whether there is a good enough justification for a prima facie equal protection violation. Unfortunately, the Supreme Court has not differentiated between these two different types of cases, leading to a string of decisions where the Court has erroneously looked for justifications of non-existent Equal Protection Clause violations, when in fact it should have been looking for indications to determine whether there actually had been an Equal Protection Clause violation. But even more troubling are some of the suggestions on the horizon; for example, the diversity rationale adopted by the Court as sufficient to survive strict scrutiny could serve to justify discriminatory police tactics such as racial profiling. By clearly outlining the above distinction and its analytic ramifications, this article hopes to undermine arguments built on the diversity rationale as wholly unfounded.

Number of Pages in PDF File: 52

Keywords: equal protection, diversity, compelling interest, affirmative action, Parents Involved

JEL Classification: K10

Accepted Paper Series