Cato Supreme Court Review, Vol. 2006-2007, p. 239, September 2007
In Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007), the Justices again divided 5-4, issuing impassioned disagreements over the extent to which public schools may invoke diversity as a compelling purpose for the use of racial classifications when making certain admissions and transfer decisions, and whether the plans under challenge were narrowly tailored to serve that purpose.
As long as analysis of racial classification cases turns on the familiar two-prong inquiry into whether government has asserted a compelling interest and, if so, whether, the challenged program reflects narrow tailoring, the Court's jurisprudence in this area will prove deeply unsatisfying and difficult to predict.
We customarily think of equal protection from the stand-point of preventing the state from visiting physical or other harm either directly through its instrumentalities or indirectly by withholding the customary protective force of the law and law enforcement authorities. But because the state can also violate equal protection by distributing goods and services or other valuable benefits or opportunities to members of a favored group rather than to those of a disfavored one - indeed, the classic concern over withholding of law enforcement resources is itself a form of discriminatory distribution of a government benefit - a better conceptual approach may be to think of equal protection as based on a principle of state neutrality or state non-preferment of members of one racial or ethnic group over those of another. I call this the non-preferment principle.
The non-preferment principle does a fairly good job of explaining the course of Supreme Court decision-making in this area. It also helps explain Justice Kennedy's critical fifth vote for the judgment in Parents Involved: Where the state acts through racially neutral means, there is no preferential allocation of government goods and services on the basis of one's race. There is, for example, no racial division of the spoils, no basis for constitutional concern when a magnet school is created in a poor neighborhood, even if turns out to be predominated by African-Americans or Hispanics; or if the top 10 percent of every high school class is automatically granted admission to the state university system; or if active recruiting for students takes place in economically disadvantaged neighborhoods. The key question is whether the opportunity is allocated on the basis of race or ethnic group status and is available on equal terms to all races and ethnic groups.
Under the non-preferment principle, there is also no warrant for strict scrutiny because the government classification is not based on race. Hence, one can avoid the conceptual awkwardness of recognizing an interest as compelling and yet declaring off-limits all direct means of pursuing the objective. One can deal affirmatively with the problem of equality through means that are consistent with government neutrality on matters of race and ethnicity.
Date of Authorship for this Version
Estreicher, Samuel, "The Non-Preferment Principle and the 'Racial Tiebreaker' Cases" (2008). New York University Public Law and Legal Theory Working Papers. Paper 64.