Labeling affirmative action laws with integrity is a hopelessly paradoxical pursuit. This article illustrates the consequences of such a pursuit. Section I traces the origins of the Top Ten Percent Law, which arose as a legislative protest to the Fifth Circuit's rejection of the use of race in admissions decisions. This section provides an in-depth understanding of the Top Ten Percent Law and concludes with a detailed analysis of the Fisher decision. Section II supplies an explanation of the majority's conclusion to treat the Top Ten Percent Law as race-neutral and provides detailed support for Justice Ginsburg's affirmation that the Law is really race-conscious. This section explores the foundation upon which the Top Ten Percent Law rests, illustrating that the Top Ten Percent Law only works because the Court's school and housing desegregation cases have failed. Section III articulates the legal and political consequences of labeling the Top Ten Percent Law as race-conscious or race-neutral. This section discusses the stringency of the strict scrutiny test and the flexibility of the rational basis test and demonstrates that a Supreme Court label often dictates a law's constitutionality. This section then exposes the political fallout that will result from labeling the Top Ten Percent Law race-neutral and pays particular attention first to the argument that a race-neutral designation signals an unearned complacency for racial equality, and second to the concern that a race-neutral label turns a blind eye to the lingering effects of past discrimination. Section IV concludes that an unfortunate paradox arises when courts assign a race-neutral label to a race-conscious law. Regardless of whether the Court designates a law as race-conscious or race-neutral, its unbiased labels create very biased results.
Leslie Yalof Garfield, The Paradox of Race-Conscious Labels, 79 Brook. L. Rev. 1523 (2014), http://digitalcommons.pace.edu/lawfaculty/971/.