Functionally Suspect: Reconceptualizing 'Race' as a Suspect Classification

32 Pages Posted: 6 Jun 2015 Last revised: 21 Oct 2015

See all articles by Lauren Sudeall

Lauren Sudeall

Georgia State University College of Law

Date Written: June 4, 2015

Abstract

In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For example, a possible equal protection violation would no longer be triggered by the mere act of racial categorization, but by classifications targeting groups characterized by a history of past discrimination, political powerlessness, or a trait that has no bearing on its members’ ability to participate in or contribute to society. By directly integrating the values underlying suspect classification into equal protection analysis, this Article attempts to replace the categorical use of race with a substantive approach that is less vulnerable to arguments grounded in colorblindness or postracialism and more focused on deconstructing existing racial hierarchies.

Keywords: Equal Protection, Identity, Race, Constitutional Law

Suggested Citation

Sudeall, Lauren, Functionally Suspect: Reconceptualizing 'Race' as a Suspect Classification (June 4, 2015). 20 Mich. J. Race & L. 255 (2015), Georgia State University College of Law, Legal Studies Research Paper No. 2015-26, Available at SSRN: https://ssrn.com/abstract=2614444

Lauren Sudeall (Contact Author)

Georgia State University College of Law ( email )

P.O. Box 4037
Atlanta, GA 30302-4037
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
27
Abstract Views
403
PlumX Metrics