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Indiana Law Journal

Document Type

Article

Publication Date

Spring 2017

Publication Citation

92 Indiana Law Journal 599 (2017)

Abstract

In recent years, a growing social consensus has emerged around the aspiration of a “post-racial” America: one where race is no longer a fault line for social strife or, perhaps, a morally significant trait whatsoever. This ambition, however, lies in tension with the most basic constitutional principle governing our treatment of race in the public sphere: that of “strict scrutiny.” Post-racialism seeks to diminish the salience of race to near negligibility. The strict scrutiny of racial classifications, by contrast, significantly enhances the salience of race by treating it differently from virtually every other personal attribute or characteristic—including hair or eye color—extant in our society.

This Article examines both the emergence of post-racialism and the development of the strict scrutiny doctrine in an attempt to resolve the underlying conflict. Both the history of strict scrutiny and the conceptual underpinnings of post-racialism in-dicate that, under the right conditions, racial classifications should stop receiving this extraordinary standard of review. Yet advocates of post-racialism have not acknowledged that strict scrutiny should have an end date—much less articulated the conditions for what that end date might be. The use of strict scrutiny in perpetuity, mixed with its uneasy relationship to the post-racial ambition, creates a doctrine that is inherently self-defeating. A close look at what we mean by “post-racial,” and how we have dealt with similar concerns in other sites of social conflict (for example, sex, religion, and indigenous status), can begin the necessary work of determining when and whether strict scrutiny should come to an end.

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