The Supreme Court weaponizes equal protection laws in order to create narratives of white innocence and Black guilt, which legitimizes the suspect classification of Black bodies and lives and reinforces colorblind ideals that ultimately conceal racial inequality.

The flipside of white innocence and disadvantage in affirmative action jurisprudence is Black guilt and advantage. Affirmative action jurisprudence implicitly articulates Black students as “guilty” of exploiting the unfair advantage affirmative action affords them, an advantage that produces “reverse discrimination” against whites.138 The perception of Black students as “unjustly enriched” by affirmative action rests not only on the view that Black students are beneficiaries of and advocates for a policy that is perceived to harm innocent whites, but also on the view that this beneficiary status is unearned: It derives from the failure on the part of those students to satisfy the presumptively race-neutral and otherwise legitimate merit criteria around which admissions processes are structured.139 Importantly, assumptions about white innocence and Black guilt are not peripheral notions in affirmative action cases.140 They are core normative ideas that have helped establish and sustain the strict scrutiny trigger—namely, that any time the government relies on race, even to advance racial justice, its decision is “suspect” and thus warrants “the most searching judicial inquiry.”141 As you will soon learn, concerns about white innocence and Black guilt are also central to the operation of the social regime of strict scrutiny. But that is getting ahead of ourselves. For now, we will continue to focus on the legal regime of strict scrutiny and turn our attention to “justification” and “fit.” To remind you, both “justification” and “fit” kick in once strict scrutiny is triggered. The “justification” inquiry turns on whether the government can articulate a “compelling” reason for its decision to rely on race.142 What goals does the government seek to accomplish? Constitutionally speaking, are those goals compelling?143 The “fit” inquiry turns on how the government seeks to advance those goals. Is there is a tight “fit” between the “means” and the “goals”? Asked more doctrinally, are the means the government employs to effectuate its goals “narrowly tailored”?144 C. Justification: The Compelling Interest Prong Perhaps the best case to illustrate how the Supreme Court assesses what passes muster under the compelling justification prong of strict scrutiny is Regents of the University of California v. Bakke.145 There, the Court had to decide whether the University of California Davis’s medical school’s affirmative action policy was constitutional. Justice Powell’s opinion in that case became the foundation for contemporary race and equal protection jurisprudence, including his analysis of what counts and does not count as a compelling state interest.146 The medical school advanced four justifications for its affirmative action policy that it viewed as “compelling”: combatting societal discrimination, facilitating the delivery of medical services to underserved communities, mitigating the underrepresentation in medical school of students from disadvantaged racial groups, and achieving the educational benefits of diversity.147 Justice Powell rejected the first three justifications and concluded that achieving diversity was the sole purpose for which a university could employ race as a factor in admissions decisions.148 Subsequent Supreme Court opinions have affirmed Justice Powell’s justification analysis.149 Thus, under current law, while diversity may serve as a compelling justification for affirmative action, combating societal discrimination may not. There is much that one might say about this doctrinal arrangement, including how it pushes “societal discrimination”—which Justice Powell described as an “amorphous” concept150—beyond the reach of equal protection doctrine. In Justice Powell’s opinion, Black inequality resulting from societal discrimination has no legal cognizability. Indeed, the opinion effectively constitutionalizes societal discrimination, rendering the existence of the phenomenon consistent with rather than anathema to the commands of equal protection. Instead of treating societal discrimination as a pressing racial reality that the government must remedy, Powell refashions it as an “amorphous” concept that the government must ignore.151 I will not, in this Article, elaborate on the preceding critique of Powell’s opinion, since I am pursuing that project elsewhere.152 For present purposes, it is enough to understand that: (a) any time the government relies on race for whatever reason it must satisfy the compelling state interest standard, and (b) the Court’s application of that standard significantly limits the terms on which the government can promote and defend progressive race conscious interventions. To put a finer point on the preceding two takeaways, whether governmental race consciousness takes the form of affirmative action, voting rights, voluntary integration efforts in K-12 schools, or employment antidiscrimination measures, the Court treats it as presumptively suspect and therefore presumptively unconstitutional.153 D. Fit: The Narrow Tailoring Prong Let’s now turn our attention to “fit.” To do so, we will assume that the government has a “compelling” reason to incorporate race into its decisionmaking. Would a court rule that the government’s decision to rely on race is thus constitutional? Not necessarily. Recall that under strict scrutiny, the government must satisfy the requirements of not only justification, but also fit. Accordingly, the government must demonstrate that the means by which it seeks to advance its “compelling” goals are “narrowly tailored.”154Once again, Bakke is a useful case for demonstrating how the Court employs this prong of strict scrutiny. In Bakke, Justice Powell concluded that the medical school’s affirmative action policy was not narrowly tailored because the school used quotas in its admissions policy. Justice Powell reasoned that quotas are not a “narrowly tailored” way to realize the university’s “compelling interest” in diversity.155 According to Justice Powell, in the context of affirmative action, “narrow tailoring” means treating race as one factor among many in deciding which students to admit.156 Reserving a specified number of seats for particular students on the basis of race violated this race-as-one-factor-among-many standard.157 Twenty-five years later, the Supreme Court would affirm Justice Powell’s strict scrutiny framework in a pair of cases: Grutter v. Bollinger, 158 which implicated the affirmative action plan of the University of Michigan’s law school; and Gratz v. Bollinger, 159 which implicated the affirmative action policy of the University of Michigan’s undergraduate program. With respect to justification, the Court concluded that the affirmative action policies in both Grutter and Gratz met the compelling state interest requirements of strict scrutiny because both polices were structured to advance diversity.160 The Court reached a different conclusion with respect to fit, ruling that whereas the plan in Grutter satisfied the fit requirement of narrow tailoring,161 the plan in Gratz did not.162 The Court reasoned that the Gratz policy failed to employ race as one factor among many in deciding which students to admit.163 Instead, it allocated a predetermined number of points to students on the basis of race.164 That approach, the Court reasoned, did not evidence a close fit between the goals of the affirmative action policy (diversity) and the means the university chose to realize those goals (a racialized point system).165 One way to redescribe what the Court is doing when it performs “narrow tailoring” analysis in the context of affirmative action jurisprudence is ascertaining whether the government is relying “too heavily” on race or, to put the point the way David Simson has, whether race is “too much” of a factor.166 While the Court has not quite said that colleges and universities must employ race only as a last resort to advance diversity—meaning that they should exhaust all formally race neutral approaches to achieving diversity before implementing race conscious affirmative action—it has grown increasingly concerned with how much of a factor race plays in affirmative action admissions.167 The Court has defended this concern as an effort to make race “irrelevant.”168 But it is more accurate to say that the Court’s “narrow tailoring” approach makes race relevant and useful—which is to say, fungible—in a particular kind of way: as a technology through which to elide or delegitimize social relations, or a group-based understanding, of racial power. Central to “narrow tailoring” is the individual, ostensibly unraced. Over and over again, the Court has insisted that it is the individual who matters, not his membership in a racial group.169 Indeed, as Justice Scalia argued, “we are just one race here. It is American.”170 This atomizing, colorblind approach to race—an approach that is not race neutral but deeply racially invested in ignoring or explicitly dismissing contemporary manifestations of racial injustice—helps to explain two core features of the Court’s “narrow tailoring” analysis: (1) why quotas do not satisfy the requirements of “narrow tailoring” (because they are a group-based form of racial remediation); and (2) why the race-as-one-factor-among-many approach does (because it limits the “means” by which the Court may use race as a remedial tool).171 As with my discussion of justification (the “compelling state interest” prong of strict scrutiny), there is far more one might say about fit (the “narrow tailoring” prong). But, here, too I have sidestepped broader critiques of “narrow tailoring” to focus your attention on the rough contours of the doctrine.