Recommended Citation

David B. Owens, 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, 48 N.Y.U. Rev. L. & Soc. Change 425 (2025), https://digitalcommons.law.uw.edu/faculty-articles/1143

Authors

David B. Owens, University of Washington School of LawFollow

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

Publication Title

New York University Review of Law & Social Change

Keywords

Fourth Amendment, Equal Protection Clause, race-based policing

Document Type

Article

Abstract

In 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.”