Document Type
Article
Publication Title
Michigan Journal of Race & Law
Publication Date
Spring 2015
ISSN
1095-2721
Page Number
255
Keywords
Equal Protection, Identity, Race, Constitutional Law
Disciplines
Civil Rights and Discrimination | Constitutional Law | Law
Abstract
In the context of equal protection doctrine, race has become untethered from the criteria underlying its demarcation as a classification warranting heightened scrutiny. As a result, it is no longer an effective vehicle for challenging the existing social and political order; instead, its primary purpose under current doctrine is to signal the presence of an impermissible basis for differential treatment. This Symposium Article suggests that, to more effectively serve its underlying normative goals, equal protection should prohibit not discrimination based on race per se, but government actions that implicate the concerns leading to race’s designation as a suspect classification. For example, a possible equal protection violation would no longer be triggered by the mere act of racial categorization, but by classifications targeting groups characterized by a history of past discrimination, political powerlessness, or a trait that has no bearing on its members’ ability to participate in or contribute to society. By directly integrating the values underlying suspect classification into equal protection analysis, this Article attempts to replace the categorical use of race with a substantive approach that is less vulnerable to arguments grounded in colorblindness or postracialism and more focused on deconstructing existing racial hierarchies.
Recommended Citation
Lauren Sudeall,
Functionally Suspect: Reconceptualizing 'Race' as a Suspect Classification, 20 Michigan Journal of Race & Law. 255
(2015)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/1398