Yuraj Joshi (doctoral candidate and SSHRC fellow at Yale Law School) has posted to SSRN his article, “Racial Indirection,” forthcoming in the Davis Law Review. Here is the abstract:
Racial indirection describes practices that produce racially disproportionate results without the overt use of race. This Article demonstrates how racial indirection has allowed — and may continue to allow — efforts to desegregate America’s universities. By analyzing the Supreme Court’s affirmative action cases, the Article shows how specific features of affirmative action doctrine have required and incentivized racial indirection, and how these same features have helped sustain the constitutionality of affirmative action to this point. The Article then discusses the potential benefits and costs of adopting indirection in affirmative action, and describes disagreements among Justices about the value of indirection that do not track along the usual ideological lines. Finally, in light of the rightward shift on the Court and the litigation over Harvard’s admissions program, the Article expects affirmative action not to disappear but to be driven underground — with ever less conspicuous considerations of race.
The full article is available here.