Equal Protection and Racial Categories
39 Pages Posted: 18 Oct 2023 Last revised: 30 Jan 2024
Date Written: September 1, 2023
Abstract
Equal protection challenges to racially discriminatory state actions typically proceed as follows: the government gives preferential treatment to a group of people based on their race, and then a member of a racial group that does not receive the preference sues arguing that the government’s use of race did not satisfy strict scrutiny. These sorts of cases are familiar, and the doctrine that governs them is well established. Recently, however, courts have encountered a new sort of equal protection challenge. These proceed as follows: the government gives preferential treatment by race, and then someone who does not receive the preference sues arguing not that the government improperly used race to distribute the preference but that it erred in excluding him from the racial group that received the preference. In other words, the challenge is not to the discriminatory distinction drawn between racial groups, but to the contours of the racial groups themselves. The few courts to encounter these new challenges have been confused about how the doctrine applies to them. They should not have been; the doctrine is already well-suited to resolving these claims. The upshot is that courts must scrutinize racial categories and do so with the same level of scrutiny that they apply to distinctions between racial categories. This inquiry is necessary because challenges to racial categories are likely to proliferate given increased scholarly and judicial criticism of the arbitrariness of America’s racial categories.
The first-principles approach that we take here to Equal Protection doctrine combined with the new research revealing the arbitrariness of America's racial categories has implications beyond the new sort of equal protection challenges. We explore those implications and conclude that many racial preferences in common use today are, in fact, unconstitutional and will have to be curtailed.
Keywords: Equal protection, constitution, race, racial preferences, affirmative action, discrimination, jurisprudence
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