Neutral in Name: Rothe, the Error of Anticlassification, and the State of Race-Neutral Means

Abstract

This Note discusses the language state-actors use to create affirmative action programs, and the methods courts employ to determine their constitutionality. It describes the context and history of affirmative action jurisprudence, and explains the anticlassification method, the antisubordination method, and the former’s influence on the current tiered approach.

This Note then discusses a 2016 D.C. Circuit decision, Rothe v. United States Department of Defense, where the court of appeals held that a statutory preference awarded to people “who ha[ve] been subjected to racial or ethnic prejudice” does not contain a racial classification. In so ruling, the court illustrated one reason why the anticlassification approach to affirmative action jurisprudence is untenable. While anticlassification is already an antiquated method of interpretation, this Note contends that, in light of Rothe, it is an unworkable one as well.