Redacting Race in the Quest for Colorblind Justice: How Racial Privacy Legislation Subverts Antidiscrimination Laws

Abstract

This article addresses the movement in states to adopt racial privacy legislation. Goodman argues that states that adopt such legislation are preventing the true victims of civil rights violations from obtaining justice and the "colorblind paradigm" from being achieved. Goodman analyzes an Initiative on the October 7, 2003 California ballot that did not pass: Proposition 54, Classification by Race, Ethnicity, Color, or National Origin, that would have prohibited the state from classifying and collecting data on any individual on the basis of race, ethnicity, color or national origin. She then provides a blueprint for any future racial privacy legislation. Goodman considers the implications of such legislation under the Hunter Doctrine. The Hunter Doctrine provides a test for determining whether a political procedure implicates the Equal Protection Clause when members of a protected racial or ethnic class are burdened more heavily than the majority in their efforts to seek beneficial legislation. Because people of color are more likely to see the benefit of civil rights law enforcement, the additional burden of proving civil rights violations falls more heavily on them, resulting in an unequal political process burden that violates the Hunter Doctrine. Finally, Goodman discusses how the provisions governing the recording of racial data in the employment context may be preempted by Titles VI and VII of the 1964 Federal Civil Rights Act. Based on analyzing the characteristics and implications of such racial privacy legislation, Goodman concludes that it is unlikely that it could survive strict scrutiny.

Keywords: racial privacy, affirmative action

JEL Classification: K49