This Article discusses a fundamental problem in constitutional law, namely that equal protection doctrine commands strict scrutiny of racial classifications but does not specify what constitutes a racial classification. Many public institutions and legal scholars have assumed that a racial classification must be explicit in order to receive strict scrutiny. This assumption, however, is false. The Article proposes the concept of “inferred classifications” to describe instances in which the Supreme Court has inferred racial classifications from the form and practical effect of facially neutral legislation. The assumption that racial classifications must be explicit is driven by a familiar but flawed approach to equal protection doctrine that seeks to preserve a rigid distinction between racial classifications, which receive strict scrutiny, and facially neutral measures, which generally receive deferential review unless motivated by a discriminatory purpose. The Article demonstrates that the inference of racial classifications has permitted the Court to apply strict scrutiny to formally race neutral legislation without identifying a discriminatory purpose.
The Article’s constitutional analysis has important implications for race neutral alternatives to race-based affirmative action, sometimes called “race neutral affirmative action.” Most scholars have assumed that discriminatory purpose doctrine will determine the constitutionality of race neutral affirmative action, concluding either that all race conscious measures deserve strict scrutiny or that facially neutral measures are excused from strict scrutiny absent proof of an illicit governmental purpose. These scholars have not considered how the form of a race neutral affirmative action measure may persuade the Court to apply strict scrutiny absent a finding of discriminatory purpose. The Article demonstrates that the Supreme Court has applied strict scrutiny to facially neutral measures, without finding a discriminatory purpose, when it perceived those measures to threaten the same constitutional equality values ordinarily enforced through the application of strict scrutiny to explicit racial classifications. The Article illustrates some practical consequences of the inferred classification framework by applying it to specific examples of race neutral affirmative action, such as university admission “percentage plans” and public school assignment plans based on socioeconomic factors.