What Constitutes a Racial Classification: Equal Protection Doctrine Scrutinized
![handle is hein.journals/tempcr24 and id is 91 raw text is: WHAT CONSTITUTES A RACIAL CLASSIFICATION?:
EQUAL PROTECTION DOCTRINE SCRUTINIZED
by STEPHEN MENENDIAN*
ABSTRACT
The general rule against racial classifications forms a cornerstone of equal
protection jurisprudence and constitutional law more broadly. In most cases
decided by the Supreme Court involving this issue, the presence of a racial
classification is presumed by the litigants and uncritically accepted by the Court.
Recently, creative advocates seeking to extend heightened judicial scrutiny to
unconventional fact patterns and new contexts have raised difficult questions about
what is and is not a racial classification, rendering this issue a site of contest.
Litigants seeking to rein in a wide range of state action, from immigrant detentions
to stop-and-frisk policies, are asserting the presence racial classifications,
sometimes successfully. At the same time, policymakers are abandoning the use of
individual racial classifications when pursuing race-conscious goals to insulate
them from heightened review.
This article confronts the need to clarify the term racial classification and
the scope of the anti-classification principle. The Supreme Court, to date, has never
provided a definition of the term racial classification. As a descriptive legal
principle, the term is a misnomer, it is incomplete and overbroad. A surprisingly
subtle term of art, the anti-classification principle's descriptive simplicity masks
considerable ambiguity and indeterminacy, which provides litigants with
opportunities to press its boundaries and assert novel claims. This article surveys
the Court's anti-classification jurisprudence for coherence and contradiction,
searching for a trans-contextual definition of the term while also identifying broad
areas of ambiguity that demand greater clarity and furtherjudicial guidance.
INTRODUCTION
The Supreme Court's racial classification jurisprudence is an area of law that
purports to offer clear rules for judicial review while quietly concealing
considerable ambiguity and increasingly salient indeterminacies. It is generally
understood that racial classifications are subject to strict scrutiny review, and must
be narrowly tailored to serve compelling governmental interests.' What is not as
* Stephen Mcnendian is the Assistant Dircctor at the Haas Institute for a Fair and Inclusive Society at
University of California-Berkeley. The author would like to thank john powell, Dan Tokaj i, Reva Siegel,
Derek Black, and Michael Omi for their feedback, and Elizabeth Diamond, Syrecta Tyrell, Kaloma
Cardwell, Stephanie Llanes, and Jerel Dawson for their research assistance and general helpfulness.
1. See Adarand Constructors v. Pefta, 515 U.S. 200, 227 (1995) ([AIII [government] racial](ViewImageLocal?handle=hein.journals/tempcr24&div=6&collection=&method=preview&ext=.png&size=3)
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What Constitutes a Racial Classification: Equal Protection Doctrine Scrutinized
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