The Constitutional Implications of Race-Neutral Affirmative Action

Abstract:     
This paper explores the constitutional implications of race-neutral affirmative action, i.e., governmental efforts to pursue affirmative action goals, such as remedying discrimination and promoting diversity, through non-racial means. For example, to increase minority enrollment, some public universities give weight in the admission process to economic background. This paper suggests that such "race-neutral" policies may be just as unconstitutional as racial preferences if they are motivated by arguably discriminatory (against whites) purposes. I then present two doctrinal defenses of race-neutral affirmative action. First, assuming that strict scrutiny would apply to such policies, I argue that remedying discrimination, even so-called "societal discrimination," should qualify as compelling when pursued through race-neutral means. Second, I argue that race-neutral affirmative action should only be subject to rational basis review. The principal point here is that the purposes of remedying racial discrimination and promoting diversity are not themselves "racially discriminatory" purposes that trigger heightened review. Policies that pursue such purposes without discriminating by race as a means thereto are therefore constitutionally unobjectionable.

Working Paper Series