Wednesday, November 23, 2016

"The Canary-Blind Constitution: Must Government Ignore Racial Inequality?"

The title of this post comes from this recent paper by Professor Kim Forde-Mazrui, the abstract of which states:

What causes black infants to die at two to three times the rate of white infants and what can be done to address those causes? For decades, every state and the federal government have sought to answer these questions. But does the Constitution permit them to? Does increasingly “colorblind” equal protection doctrine prohibit government from addressing the root causes of racial disparities in health and other contexts, such as education, employment and criminal justice?

In 2000, I argued that state action intended to benefit racial minorities arguably constitutes “suspect” racial discrimination subject to strict scrutiny even when implemented through race-neutral means. This article follows the logic of colorblindness further. It asks whether a state’s investigation into the causes of a racial disparity makes any subsequent state action that uses the information gained by the investigation racially discriminatory, even if the later state action, at the time it is selected, is motivated only by race-neutral purposes and employs race-neutral means. Is state action intended to benefit people regardless of race subject to strict scrutiny whenever the state action is traceable to a prior investigation of a racial disparity? This article will first set forth why the answer to this question may well be yes, with devastating consequences for addressing racial inequality through law. Secondly, the article develops a distinction between the discriminatory and investigative uses of race that could justify, under current doctrine, state action motivated by a concern over racial disparities without being subject to strict scrutiny.

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