The Quixotic Search For Race-Neutral Alternatives

Abstract

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.