Racial Indirection

74 Pages Posted: 20 Jan 2019 Last revised: 20 Jun 2019

See all articles by Yuvraj Joshi

Yuvraj Joshi

Brooklyn Law School; UCLA Promise Institute of Human Rights; UC Berkeley Miller Institute for Global Challenges and the Law; University of British Columbia (UBC), Faculty of Law

Date Written: January 9, 2019

Abstract

Racial indirection describes practices that produce racially disproportionate results without the overt use of race. This Article demonstrates how racial indirection has allowed — and may continue to allow — efforts to desegregate America’s universities. By analyzing the Supreme Court’s affirmative action cases, the Article shows how specific features of affirmative action doctrine have required and incentivized racial indirection, and how these same features have helped sustain the constitutionality of affirmative action to this point. There is a basic constitutional principle that emerges from these cases: so long as the end is constitutionally permissible, the less direct the reliance on race to achieve that end, the less constitutionally problematic the means. The Article then discusses the potential benefits and costs of adopting indirection in affirmative action, and describes disagreements among Justices about the value of indirection that do not track along the usual ideological lines. Finally, anticipating a stable conservative majority on the Supreme Court, the Article expects affirmative action not to disappear but to be driven further underground — employing ever-less conspicuous considerations of race. In the American story of affirmative action, all paths lead to indirection — the task ahead is to determine the role that indirection may continue to play in desegregating universities.

Keywords: Constitutional Law, Affirmative Action, Higher Education, Equality, Diversity, Inclusion, Colorblindness, Post-Racialism, Fairness, Social Cohesion, Political Viability, Racial Transition, Racial Justice, Government Transparency, Principled Reasoning, Students for Fair Admissions v. Harvard

Suggested Citation

Joshi, Yuvraj, Racial Indirection (January 9, 2019). UC Davis Law Review, Vol. 52, No. 5, 2019, Available at SSRN: https://ssrn.com/abstract=3312518

Yuvraj Joshi (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

UCLA Promise Institute of Human Rights ( email )

UC Berkeley Miller Institute for Global Challenges and the Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

University of British Columbia (UBC), Faculty of Law ( email )

1822 East Mall
Vancouver, British Columbia V6T 1Z1
Canada

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