Racial Classifications, Other Factors, and the Equal Protection Clause

Strictly speaking, racial classifications to extend preferences or to impose burdens would seem to offend both the spirit of the American constitution and the literal meaning of the Equal Protection Clause.  Problems have arisen, however, because the United States Supreme Court has interpreted the Equal Protection Clause in such a way as to allow preferences based on racial classifications when the government can establish that there is a compelling state interest. (Richmond v. J. A. Croson Co., 1989, pp. 469-470)  Specifically, as is the case in some affirmative action cases when states present diverse campuses and the remedying of historical injustices as compelling state interests, the United States Supreme Court has strangely upheld preferences based mostly on race. Although The Equal Protection Clause renders all racial discrimination presumptively invalid, including discrimination in favor of minorities (Mellott, 2006, p. 54) this presumption can be overcome with a showing of a compelling state interest.

  Race, however, can no longer be the sole basis for granting preferences and other factors must be considered in the admissions process.  This provides an interesting parallel for racial profiling cases.  More specifically, a profiling procedure or practice based solely on race would seem to offend both the spirit of the American constitution and the specific intent of the language contained in the Equal Protection Clause.

  A profiling procedure or practice, on the other hand, which lists race simply as one factor among many such as age, location, and time might better harmonize the burdens imposed by racial classifications in the racial profiling context with the preferences extended  by racial classifications in the affirmative action context.

  The practical problem, in both contexts, is whether fallible human beings of whatever political persuasion are capable of viewing race as one of many factors rather than being a dispositive factor.  The United States Supreme Court, to be sure, cannot create overarching legal and ethical standards that account for personal prejudices and individual bias.

  Racial classification schemes will therefore always be substantially weakened by the fact that people can abuse what might otherwise be a superficially reasonable framework in which race is one of many considered factors.

  The only real way to eliminate these particular problems is to resort to a more literal interpretation of the Equal Protection Clause in which all people are equally entitled to the protection of the laws and in which neither preferences nor burdens should ever be predicated on racial classifications. 


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