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The Equal Protection-Fourth Amendment Shell Game: An Essay on the Limited Reach of the 2023 Affirmative Action Cases, the Fourth Amendment, and Race Beyond Skin Color
Get PDFIn striking down race-conscious admissions at Harvard and the University of North Carolina, the Supreme Court used lofty rhetoric about the importance of ending race discrimination, even calling the command of Equal Protection “universal.” In two ways, this Essay explores the legal and practical limits of the affirmative action cases and illustrates how the Court’s claimed concern about race discrimination rings hollow. First, this Essay discusses state actors permitted to use race in their decision-making: the police. Unlike elite universities whose policies are subject to exacting scrutiny, the Supreme Court permits police to use race when deciding whom to seize under the Fourth Amendment under deferential forms of review. In fact, Fourth Amendment doctrine is so deferential it largely forbids race-based challenges to race-based policing and requires such arguments be raised under the Equal Protection Clause. Then, the kicker: under the version of Equal Protection Clause applied to the police, even admittedly race-based actions do not necessarily violate equal protection. The result is a shell game between the Equal Protection Clause and the Fourth Amendment where claims of racial bias cannot be effectively challenged under either provision. Second, to show the limits of the affirmative action cases from another angle, this Essay offers a reflection on the Court’s arguments about “stereotyping” and suggests they erroneously reduce the concept of race to skin color. Both as an empirical fact and matter of lived experience, race is far more skin color. The Court’s contrary assessment of stereotyping cannot be squared with the realities facing people of color, no matter their faith, creed, politics, hobbies, or upbringing. In the end, race matters because it permeates the fabric of our lives even if the constitution—in the affirmative action context but not for the police—is now supposed to be “colorblind.
Empowering Students: Integrating Academic Support with Therapeutic Interventions to Promote Sustainable Resilience
No full textShielding Freedoms: State Noncooperation in Hunts for Evidence and People
No full textThe nation is fracturing into a patchwork of rights and punishment. What some states and localities safeguard as rights, other jurisdictions are criminalizing and punishing. As the divides in rights and punishment deepen, some states are becoming sanctuaries for freedoms penalized elsewhere and enacting shield laws prohibiting cooperation with criminalization and punishment states. A prime example is shield laws protecting people seeking to exercise reproductive rights or obtain gender-affirming care. Major jurisdictions for healthcare and technology-related businesses, such as Washington, California, New York, and Massachusetts, have enacted shield laws that prohibit law enforcement and companies from complying with subpoenas seeking witnesses or other evidence in the investigation or prosecution of abortion or gender-affirming care. This Article is about the rise of resistance by refusal to cooperate with interstate evidence-gathering as the nation fractures over rights protection and punishment.
The Article advances the normative case for disrupting the modern march toward collaborating in evidence-gathering across state borders, drawing on history illuminating that comity is not a straitjacket binding states to punitive restrictions nor always desirable. As fierce cultural and legal divides split the nation, interstate comity and cooperation are giving way to the need to protect a higher standard of rights from dissolution and punishment. The Article envisions how shield laws can expand to cover new challenges, such as using automated license plate reader databanks to hunt for people trying to exercise reproductive rights across state lines or in immigration investigations