49 Pages Posted: 20 Jan 2019
Date Written: January 9, 2019
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. 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, in light of the rightward shift on the Court and the litigation over Harvard’s admissions program, the Article expects affirmative action not to disappear but to be driven underground — with ever less conspicuous considerations of race.
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: Suggested Citation