A Not Quite Color-Blind Constitution: Racial Discrimination and Racial Preference in Justice O'Connor's "Newest" Equal Protection Jurisprudence

JUSTIN SCHWARTZ*

Under the leadership of Justice O'Connor, the Supreme Court has fashioned a uniform standard for examining the constitutionality of racial classifications under the Equal Protection Clause. Though her standard is appropriately labeled as strict scrutiny for both invidious and benevolent classifications, it should not be understood as "strict in theory, fatal in fact" and it is not color-blind. Instead, Justice O'Co,uwr's newest equal protection jurisprudence is "not quite color-blind." The standard is consistently high and it demands that for a classification to be acceptable it must nonnall;y be confined to remedial aims and that the claims to a benevolent purpose must be genuine and justified.

INTRODUCTION

In a series of recent cases concerning racial preferences, the Supreme Court, largely under the leadership of Justice O'Connor, has articulated a new doctrine concerning the constitutionality of governmental racial classifications under the Equal Protection Clause of the Fourteenth Amendment.1 The Court has determined, after twenty five years of debate, that the most stringent standard of review ("strict scrutiny") applies to all such classifications, even those intended to benefit rather than to burden historically disadvantaged minorities.2 This standard has been applied to racial preference programs in

• J.D.