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The constitutionality of facially neutral affirmative action in the United States

Liu, Kimberly A.; (2018) The constitutionality of facially neutral affirmative action in the United States. Doctoral thesis (Ph.D), UCL (University College London).

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This thesis considers the constitutional status under U.S. law of affirmative action measures that avoid explicitly classifying individuals on the basis of race (“facially neutral affirmative action”). It is particularly concerned with whether such measures constitute racial discrimination in the first instance, such that they would be subject to the strictest standard of judicial scrutiny. Two features distinguish facially neutral affirmative action from the paradigmatic understanding of unconstitutional racial discrimination: (1) as a form of affirmative action, such measures pursue an inclusionary or integrative purpose consistent with the achievement of substantive equality, rather than seeking to inflict harm on particular racial groups or otherwise endorse racial hierarchy; (2) such measures sort beneficiaries and non-beneficiaries on the basis of nonracial criteria (for example, socioeconomic status) and do not then require that individuals be identified by their personal racial group membership and subject to differential treatment on this basis. This thesis argues that these two features combine to exclude facially neutral affirmative action measures from the definition of racial discrimination as a matter of constitutional presumption. In particular, the shift in operative form, from explicitly classificatory to facially neutral, significantly diminishes the intrusion of this type of policy on equality principles, and should consequently reduce their legal vulnerability. This thesis then proposes a standard for when the presumption of constitutionality will be rebutted. If the design and practical effect of a challenged facially neutral affirmative action measure cannot rationally be explained as other than an attempt to target individuals on the basis of race, it will qualify as discriminatory and thus be subject to strict judicial scrutiny. Ultimately, this thesis locates facially neutral affirmative action measures in their proper position in the constitutional landscape, something of particular importance given the persisting racial inequality in American society, and the judicial and popular hostility to explicitly classificatory racial preferences.

Type: Thesis (Doctoral)
Qualification: Ph.D
Title: The constitutionality of facially neutral affirmative action in the United States
Event: UCL (University College London)
Language: English
URI: http://discovery.ucl.ac.uk/id/eprint/10054482
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