Racial Discrimination (Update 2)

• Author: Ian F. Haney LÓPez
• Pages: 2108

Page 2108

Supreme Court decisions at the end of the 1980s heralded the ascendancy of colorblind constitutionalism. Decisions in the 1990s confirmed the preeminence of that vision.

In SHAW V. RENO (1993), the Court ruled in favor of a FOURTEENTH AMENDMENT challenge to North Carolina's enactment of a majority-black ELECTORAL DISTRICT, created pursuant to an agreement with the U.S. Department of Justice under the terms of the VOTING RIGHTS ACT OF 1965. MOBILE V. BOLDEN (1980) requires that one show both an intent to discriminate and discriminatory effect to prevail on an EQUAL PROTECTION challenge to electoral districting. The challengers of the North Carolina plan, which resulted in the election of the first African American member of Congress from that state since RECONSTRUCTION, alleged neither, claiming instead a violation of their right to "participate in a 'color-blind' electoral process." Despite the novelty of this claim, the Court held that they had stated an adequate claim for relief. Focusing on the "extreme irregularity" in the shape of the district, Shaw suggested that the districting legislation "was unexplainable on grounds other than race," and so, prohibited under the Fourteenth Amendment absent a showing of a COMPELLING STATE INTEREST. Shaw worked a substantial revision of equal protection doctrine in this area, although it did so on the highly context-specific basis of district shape.

Shaw says less about the majority's general concern for quashing racial discrimination than about its concern that government not consider race in efforts to remedy past discrimination. Consider ADARAND CONSTRUCTORS, INC. V. PEÑA (1995). At issue was the STANDARD OF REVIEW to apply when the federal government relies on a racial classification in an AFFIRMATIVE ACTION program: the STRICT SCRUTINY necessary where the government harms a racial group; or, in recognition of the benign purpose of the classification, a less onerous intermediate standard. Because strict scrutiny is nearly always fatal to the law under review, the answer to this question goes directly to the viability of government-sponsored affirmative action programs. A plurality in FULLILOVE V. KLUTZNICK (1980) upheld a federal program similar to the one at issue in Adarand along lines approximating an intermediate standard of review. The Court in RICHMOND (CITY OF) V. J. A. CROSON CO. (1989), however, ruled that where a municipality attempted a similar...