GianCarlo Canaparo (The Heritage Foundation) & Jameson Payne (Kent State University) have posted Equal Protection and Racial Categories (George Mason University Civil Rights Law Journal (CRLJ), Forthcoming) on SSRN. Here is the abstract:
Equal protection challenges to racially discriminatory state actions typically proceed as follows: the government gives preferential treatment to a group of people based on their race, and then a member of a racial group that does not receive the preference sues arguing that the government’s use of race did not satisfy strict scrutiny. These sorts of cases are familiar, and the doctrine that governs them is well established. Recently, however, courts have encountered a new sort of equal protection challenge. These proceed as follows: the government gives preferential treatment by race, and then someone who does not receive the preference sues arguing not that the government improperly used race to distribute the preference but that it erred in excluding him from the racial group that received the preference. In other words, the challenge is not to the discriminatory distinction drawn between racial groups, but to the contours of the racial groups themselves. The few courts to encounter these new challenges have been confused about how the doctrine applies to them. They should not have been; the doctrine is already well-suited to resolving these claims. The upshot is that courts must scrutinize racial categories and do so with the same level of scrutiny that they apply to distinctions between racial categories. This inquiry is necessary because challenges to racial categories are likely to proliferate given increased scholarly and judicial criticism of the arbitrariness of America’s racial categories.