Is the Future of Affirmative Action Race Neutral

Source: Brian T. Fitzpatrick, Vanderbilt Law School, Vanderbilt Public Law Research Paper No. 14-11,April 18, 2014

From the abstract:
The outlook does not appear particularly bright for affirmative action programs in the United States that grant preferences based on race to blacks, Hispanics, and others in hiring, university admissions, and bidding on government contracts. These programs continue to be unpopular with the public and face increasing hostility in courts of law. In its place, courts and commentators have been promoting an alternative form of affirmative action called “race-neutral affirmative action.” Race-neutral affirmative action seeks to change the racial composition of those who benefit from employment, education, or government spending not by granting preferences based on race, but by granting preferences based on characteristics that are correlated with race. In this chapter, I examine the rise of race-neutral affirmative action in the United States and assess the costs and benefits of trying to diversify through race-neutral means. I conclude, first, that, although courts have been promoting race-neutral affirmative action, they have yet to confront serious questions about whether it is any more constitutional than racially explicit affirmative action. In my view, it is hard to square race-neutral affirmative action with the Supreme Court’s cases that prohibit programs that have both the purpose and effect of racial discrimination. Second, even if the courts decide not to adhere to these past cases, it is unclear whether race-neutral affirmative action is any less problematic than racially explicit affirmative action. Although race-neutral affirmative action may be less divisive and less stigmatizing to its beneficiaries, it may be so much less efficient at bringing about racial diversity that it will require institutions to make much greater sacrifices to other aspects of their missions. Indeed, the race-neutral programs that are likely to be the least divisive and least stigmatizing are probably also those that are the least efficient at diversifying. For both of these reasons, I am not sure race-neutral affirmative action is the panacea that many seem to think it is.