The Supreme Court has stated that the narrow-tailoring inquiry of the Equal Protection Clause’s strict scrutiny analysis of racially disparate treatment by state actors requires courts to consider whether the defendant seriously considered race-neutral alternatives before adopting the race-conscious program at issue. This article briefly examines what that means in the context of race-conscious admissions programs at colleges and universities. Part I sets forth the basic concepts that the Supreme Court uses to analyze race-conscious decision-making by governmental actors and describes the role of “race-neutral alternatives” in that scheme. Part II examines the nature of “race-neutral alternatives” and identifies its various possible meanings, arguing that the idea of a “race-neutral alternative” only makes sense when the goal itself is race-neutral. Part II then carefully considers Supreme Court cases that mention this idea and argues that the Court has given confusing signals. Part III suggests that the idea of “race-neutral alternatives” has been misused when the government’s underlying goal is race-conscious; the Court’s guidance about what it means to consider a “race-neutral alternative” is practically useless because it has never explained whether that concept includes racially motivated manipulation of facially neutral criteria to achieve a racial goal. Requiring such “race-neutral alternatives” is akin to requiring the serious consideration of a slow-moving alternative to achieving a speed goal. One might well wonder why anyone would do such a counterintuitive thing, and the Court has not yet provided a good explanation. In the world of race-conscious admissions policies, the concept of a “race-neutral alternative” distracts attention from the more important question: whether having more racial or ethnic minorities at a college or professional school leads to better educational outcomes. I suggest that the Court should eliminate the “race-neutral alternative” requirement in this context. Instead, the Court should focus more attention on whether the use of race actually leads to the benefits claimed.
Michael E. Rosman,
The Quixtoic Search For Race-Neutral Alternatives,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol47/iss4/1