The Equal Protection-Fourth Amendment Shell Game: An Essay on the Limited Reach of the 2023 Affirmative Action Cases, the Fourth Amendment, and Race Beyond Skin Color

Abstract

In striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In three ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decisionmaking—the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize under the Fourth Amendment under deferential forms of review. In fact, Fourth Amendment doctrine is so deferential it largely forbids race-based challenges racial-based policing and requires such arguments be raised under the Equal Protection Clause. Then, the kicker: under the version of Equal Protection Clause applied to the police even admittedly race-based actions do not necessarily violate equal protection. The result is a shell game between the Equal Protection Clause and Fourth Amendment where claims of racial bias cannot be effectively challenged under either provision. Second, this Essay discusses a perhaps overlooked aspect of the affirmative action cases that provide an obvious path for adopting race-conscious admissions in the future. In particular, the Court explicitly affirmed that eliminating specific acts of discrimination permits race-conscious decisionmaking. Given there is no dispute that many elite universities previously had racially-discriminatory policies, exploring this avenue would seem to be legally viable. Whether elite universities will pursue this route is a tough, improbable ask—universities would need to admit and quantify their own acts of race discrimination. Whether they will do so remains to be seen. Third, to show the limits of the affirmative action cases from another angle, this Essay offers a reflection on the Court’s arguments about “stereotyping” and suggest they erroneously reduce the concept of race to skin color. Both as an empirical fact and matter of lived experience, race is far more skin color. The Court’s contrary assessment of stereotyping cannot be squared with the realities facing people of color, no matter their faith, creed, politics, hobbies, or upbringing. In the end, race matters because it permeates the fabric of our lives even if the constitution—in the affirmative action context but not for the police—is now supposed to be “colorblind.”

Keywords: Civil Rights, Equal Protection, Fourth Amendment, Policing, Constitutional Law, Affirmative Action

JEL Classification: K4, K41, K42, K49