Abstract
This Article seeks to transform how we think about affirmative action. The U.S. Supreme Court’s jurisprudence on the subject may appear to be a seamless whole, but closer examination reveals crucial differences between the cases broadly characterized as involving affirmative action. The government sometimes acts in a race-conscious manner by granting a tangible benefit to members of a minority group for remedial or diversifying purposes. But the government may also undertake remedial or diversifying race-conscious action without it resulting in unequal treatment or disadvantage to nonminorities. Under the Court’s current equal protection doctrine, both situations are presumptively unconstitutional. Race consciousness itself has become a constitutional harm, regardless of its tangible effects.
This Article breaks new ground by arguing that, functionally, the Court has come to view race-conscious government action as a form of prohibited government speech. The Court’s colorblindness doctrine, which is premised on expressive harm, is fundamentally inconsistent with the rationales for the government speech doctrine under the First Amendment. As the government speech doctrine recognizes, disagreement with the message sent by government action is not alone sufficient to state a constitutional claim. Rather, such disagreement is best addressed through the political process. This Article argues that the Court should use government speech principles to inform its equal protection analysis in cases in which the alleged harm is primarily expressive in nature.
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