"No Such Thing as Race: Exploring the Past and Future of Affirmative Action after Schuette"

The title of this post comes from this paper by Professor Mary Ziegler, the abstract of which states:

On the surface, Schuette v. Coalition for Affirmative Action leaves the constitutional law of affirmative action undisturbed. Michigan had amended its state constitution to prevent the use of racial preferences by any university system or school district. Rejecting a fourteenth-amendment challenge, the Court upheld Michigan’s law. The Schuette plurality went to considerable lengths to explain that Schuette in no way touched on the constitutionality or merits of race-based admissions. Just the same, understood in historical context, the Schuette majority lays bare profound new dangers confronting proponents of affirmative action. In addition to praising colorblindness, the Court cast doubt on the very definition of race. 

This Article historicizes Schuette, revealing it to be a turning point in the law and politics of affirmative action. In the past, activists consistently used race to describe the color of one’s skin, but before Schuette, the meaning of race itself had not played a central part in challenges to the constitutional legitimacy of affirmative action. As Schuette shows, anti-affirmative action amici and activists have developed a new argument: a claim that if race is a social construct, race-conscious remedies are arbitrary, unfair, and likely to reinforce existing stereotypes.

As the new anti-affirmative action activism makes plain, the question is how courts can address racial discrimination when racial identities themselves are fluid and complex. The Article looks to employment discrimination law — and to “regarded as” liability — as a framework for judges seeking to address the reality of race discrimination without reifying racial categories. Under the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act of 2009 (ADAAA), a worker may in certain cases seek relief when she is regarded as disabled — regardless of whether she actually belongs to a protected class. The Article argues that regarded-as reasoning has considerable potential in the context of postsecondary admissions. In complying with existing fourteenth-amendment jurisprudence, admissions officers already rely on proxies for applicants’ race. Doing so checks self-serving behavior and better captures the fluidity of race in modern America.