The Supreme Court’s recent decision in Fisher v. University of Texas II defied expectations, upholding an affirmative-action program and opening the door for universities to adopt similar policies. Using original historical research, this Article contends that Fisher II matters just as much because of the new challenges it reveals for proponents of affirmative action. Read together with the Court’s recent decision in Schuette v. Coalition to Defend Affirmative Action, the dissents in Fisher II lay bare profound dangers confronting proponents of affirmative action, regardless of the outcome in Fisher II. In addition to praising colorblindness, the Court has cast doubt on the very definition of race.
In the past, activists consistently used race to describe the color of one’s skin, but before Schuette, the meaning of race itself had not played a central part in challenges to the constitutional legitimacy of affirmative action. As Schuette shows, antiaffirmative- action amici and activists have developed a new argument: a claim that if race is a social construct, race-conscious remedies are arbitrary, unfair, and likely to reinforce existing stereotypes. Shaping the Schuette majority, this argument took center stage in Justice Alito’s dissenting opinion in Fisher II. Future challenges to affirmative action will center on the meaning (and incoherence) of racial categories.
As the new anti-affirmative-action activism makes plain, the question is how courts can address racial discrimination when racial identities themselves are fluid and complex. The Article looks to employment discrimination law—and to “regarded-as” liability—as a framework for judges seeking to address the reality of race discrimination without reifying racial categories. Under the Americans with Disabilities Act (ADA) and the Americans with Disability Act Amendments Act of 2009 (ADAAA), a worker may in certain cases seek relief when she is regarded as disabled—regardless of whether she actually belongs to a protected class. The Article argues that regarded-as reasoning has considerable potential in the context of postsecondary admissions. In complying with existing Fourteenth-Amendment jurisprudence, admissions officers already rely on proxies for applicants’ race. Doing so checks self-serving behavior and better captures the fluidity of race in modern America.
Ziegler, Mary, "What Is Race?: The New Constitutional Politics of Affirmative Action" (2018). Connecticut Law Review. 401.