Document Type

Article

Publication Date

2011

Abstract

This article seeks to transform how we think about “affirmative action.” The Supreme Court’s affirmative action jurisprudence appears to be a seamless whole, but closer examination reveals important differences. Government race-consciousness sometimes grants a benefit to members of a minority group for remedial or diversifying purposes. But the government may also undertake remedial or diversifying race-conscious action without it resulting in unequal treatment or disadvantage to non-minorities. Under the Court’s current equal protection doctrine, both categories of cases are treated as presumptively unconstitutional. Race-consciousness itself has become a constitutional harm, regardless of tangible effects.

Prior scholarship has suggested that the “strict colorblindness” doctrine is best understood as the Court finding that race-conscious government action inflicts an expressive harm. This Article breaks new ground by arguing that functionally, the Court has come to view race-conscious government action as a form of prohibited government speech because it conflicts with the Court’s preferred message of post-racialism. In essence, the Court has decided that when the government takes such action, it is sending an impermissible message that race still matters in our society.

The Court’s colorblindness doctrine, which is premised on expressive harm, is fundamentally inconsistent with the rationales for the government speech doctrine under the First Amendment. As that doctrine recognizes, disagreement with the message sent by government action is not by itself sufficient to state a constitutional claim. Rather, such disagreement is best addressed through the political process. This Article argues that the Court should use government speech principles to inform its equal protection analysis in cases where the harm alleged is predominantly expressive in nature.

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