render it an intentional act of discrimination barred by the equal protection clause. As the court has emphasized, a government is not prohibited from acting in spite of harm to members of disadvantaged racial groups; it is banned only from causing harm because of race.

This constitutional interpretation reflects the fact that many neutral governmental actions have predictable effects that either benefit or harm certain racial groups and that allowing all these actions to be challenged on equal protection grounds would make the federal courts the arbiters of a vast array of legislative and executive conduct. For example, the mortgage interest deduction for residential housing disproportionately benefits whites because of their greater housing wealth and possibly dampens investments in other types of productive capital that might generate more jobs that could disproportionately advantage blacks. Similarly, the war on drugs is designed to identify and punish the tens or even hundreds of thousands of workers in the illegal drug trade, a disproportionate number of whom will inevitably be drawn from disadvantaged groups having less abundant opportunities in the legitimate economy. Yet no doctrine of law would permit either of these ostensibly neutral governmental programs to be challenged as racially discriminatory. Similarly, governmental social programs that disproportionately benefit a racial or ethnic group cannot be challenged on that basis alone on equal protection grounds.

Any form of racially preferential treatment by a government entity—whether in giving preference to minority contractors or to minority applicants to state universities—is subject to strict judicial scrutiny. A racially based treatment implemented by government, even if motivated by the desire to promote affirmative action, will violate the Constitution unless it is “narrowly tailored” to serve a “compelling government interest” (Adarand Constructors, Inc. v. Peña, 515 U.S. 220, 237-8 [1995]).9


Governmental actors are constitutionally constrained not to engage in intentional disparate treatment on the basis of race unless the action can withstand strict judicial scrutiny. Specifically, in Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), the Supreme Court announced that all racial classifications by government—whether federal, state, or local—are subject to strict judicial scrutiny under the Constitution and can be sustained only if they are “narrowly tailored” to serve a “compelling government interest.” The Court “held that, under the equal protection component of the Fifth Amendment’s due process clause or under the equal protection clause of the Constitution’s Fourteenth Amendment, all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny, that is, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests” (515 U.S. 200). The Supreme Court has recently reaffirmed this holding in its two cases dealing with affirmative action at the University of Michigan [Grutter v. Bollinger, 123 S. Ct 2325 (2003); Gratz v. Bollinger, 123 S. Ct 2411 (2003)].

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