Racial Indirection

Abstract

Racial indirection describes practices that produce racially disproportionate results without the overt use of race. This Article demonstrates how racial indirection has allowed — and may continue to allow — efforts to desegregate America’s universities. By analyzing the Supreme Court’s affirmative action cases, the Article shows how specific features of affirmative action doctrine have required and incentivized racial indirection, and how these same features have helped sustain the constitutionality of affirmative action to this point. There is a basic constitutional principle that emerges from these cases: so long as the end is constitutionally permissible, the less direct the reliance on race to achieve that end, the less constitutionally problematic the means. The Article then discusses the potential benefits and costs of adopting indirection in affirmative action, and describes disagreements among Justices about the value of indirection that do not track along the usual ideological lines. Finally, anticipating a stable conservative majority on the Supreme Court, the Article expects affirmative action not to disappear but to be driven further underground — employing ever-less conspicuous considerations of race. In the American story of affirmative action, all paths lead to indirection — the task ahead is to determine the role that indirection may continue to play in desegregating universities.

Keywords: Constitutional Law, Affirmative Action, Higher Education, Equality, Diversity, Inclusion, Colorblindness, Post-Racialism, Fairness, Social Cohesion, Political Viability, Racial Transition, Racial Justice, Government Transparency, Principled Reasoning, Students for Fair Admissions v. Harvard