The Constitutional Implications of Race-Neutral Affirmative Action

69 Pages Posted: 3 Feb 2000 Last revised: 16 Jun 2010

Kim Forde-Mazrui

University of Virginia School of Law

Date Written: November 1, 1999

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.

Keywords: affirmative action, race-neutral, race-blind, race

Suggested Citation

Forde-Mazrui, Kim, The Constitutional Implications of Race-Neutral Affirmative Action (November 1, 1999). Georgetown Law Journal, Vol. 88, No. 8, 2000. Available at SSRN: https://ssrn.com/abstract=198911 or http://dx.doi.org/10.2139/ssrn.198911

Kim Forde-Mazrui (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-3299 (Phone)
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