Published in 99 Virginia Law Review 1525 (2013).


This Article discusses a fundamental problem in constitutional law, namely that equal protection doctrine commands strict scrutiny of all racial classifications but does not specify what constitutes a racial classification. This omission has left many public institutions and legal scholars to assume that a racial classification must be explicit in order to receive strict scrutiny. This assumption, however, is false. The Article proposes the concept of “inferred classifications” to describe instances in which the Supreme Court has inferred racial classifications from the form and practical effect of facially neutral legislation. The assumption that racial classifications must be explicit is driven by a more fundamental misapprehension of equal protection jurisprudence that seeks to preserve a rigid distinction between racial classifications, which receive strict scrutiny, and facially neutral measures, which generally receive deferential review unless motivated by a discriminatory purpose. The Article demonstrates that the inference of racial classifications has permitted the Court to apply strict scrutiny to formally race neutral legislation without identifying a discriminatory purpose. The Article’s constitutional analysis has important implications for race neutral alternatives to traditional affirmative action, sometimes called “race neutral affirmative action.” It demonstrates that the Supreme Court has applied strict scrutiny to facially neutral measures, without finding a discriminatory purpose, when it perceived those measures to threaten the same constitutional equality values ordinarily enforced through the application of strict scrutiny to explicit racial classifications. The Article illustrates some practical consequences of the inferred classification framework by applying it to specific examples of race neutral affirmative action, such as university admission “percentage plans” and public school assignment plans based on socioeconomic factors.


Civil Rights and Discrimination | Constitutional Law | Courts | Human Rights Law | Jurisprudence | Law | Law and Race | Law and Society | Legislation

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