Hopwood: Bakke II and Skeptical Scrutiny
Seton Hall Constitutional Law Journal, Vol. 9, 1999
123 Pages Posted: 28 Aug 2007
Abstract
We have come full circle. Colorblindness is simply a return to the Plessy v. Ferguson notion of formal race. Formal race, as defined by Professor Neil Gotanda, is the touchstone of colorblindness. Here, references to race imply that black and white are merely classification labels with no connection to social reality. Thus, history and context have no place in colorblind jurisprudence. Strict scrutiny provides a strange form of doctrinal uniformity because race is neutral and racism is largely abberational, and the systemic effects of caste are insulated by the most demanding standard of review in race cases. Thus, invidious discrimination and positive remedial efforts to eradicate racial subordination are placed on the same constitutional plane. This inverted reasoning preserves discrimination. Race-conscious remedial efforts under the Constitution and Title VII should be viewed less skeptically if their purpose is rooted in the anti-subjugation and anti-caste principles.
Keywords: colorblind constitutionalism, Equal Protection Clause, race, affirmative action, Adarand, Bakke,
JEL Classification: Constitutional Law
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