Benign Race-Conscious Actions are Necessary to End Race Discrimination and Achieve Actual Equality

Abstract:     
The decision in Parents Involved brings the Court very close to making strict scrutiny fatal in fact when considering benign, race-conscious actions implemented to address racial inequality. Justice Kennedy supplied the crucial fifth vote in favor of striking down the two school plans at issue in Parents Involved, and his opinion provides a reason to believe that carefully adopted, benign, race-conscious programs can survive Supreme Court review. However, such optimism must take account of the fact that Justice Kennedy has never voted to uphold a benign, race-conscious program and, therefore, race-conscious action by any institution is quite risky. Against this background, this Article makes two points.

First, it is of critical importance that institutions, governmental and private, continue to pursue race-conscious actions aimed at promoting actual equality because the Constitution and laws prohibiting invidious race discrimination have, at best, resulted in formal or legal equality, not actual racial equality. Second, institutions willing to implement voluntary programs must do so in a manner that gives them the best chance of defending the programs in court. This requires the involvement of attorneys and experts at every step in the process, taking into account each aspect of the Court's strict scrutiny analysis.

Keywords: equal protection, benign race-conscious actions, religious freedom, unconscious race discrimination

Working Paper Series