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Post-Racialism and the End of Strict Scrutiny

54 Pages Posted: 15 Nov 2011 Last revised: 29 Apr 2017

David H. Schraub

University of California, Berkeley - School of Law

Date Written: April 28, 2017

Abstract

In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near-negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic - including hair or eye color - extant in our society.

This article examines both the emergence of post-racialism and the development of the strict scrutiny doctrine in an attempt to resolve the underlying conflict. It concludes that the motivator behind both post-racialism and strict scrutiny is to remove the fear that race carries with it as a concept - fear that it any time race appears in our society it necessarily is the harbinger of ethnic strife or the resurrection of Jim Crow. The model for race should follow that of religion or indigenous status. In both cases, the identity axis has been the subject of severe conflict and oppression. Yet the effort to get “beyond” religion or indigeneity does not focus on, or even countenance, permanent suppression of these identities. Rather it seeks to remove the fear that when we do use these elements of our identity, we are necessarily inviting catastrophe.

Keywords: anti-discrimination, race, constitutional law, strict scrutiny

Suggested Citation

Schraub, David H., Post-Racialism and the End of Strict Scrutiny (April 28, 2017). 92 Indiana Law Journal 599 (2017); Illinois Public Law Research Paper No. 11-09. Available at SSRN: https://ssrn.com/abstract=1960015 or http://dx.doi.org/10.2139/ssrn.1960015

David Schraub (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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