Of Race and Immutability

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In this Article, Donald Braman reviews the diversity of scientific and political opinion in debates about the nature of race and the consequences that these disagreements have had for constitutional law. He finds that the varied scientific and legislative classifications, presented in the briefs and oral arguments of a number of cases from Plessy v. Ferguson through more recent cases such as Saint Francis College v. Al-Khazraji, have consistently moved the Supreme Court to treat racial status as the product of social and political institutions. Understanding that the Court has not embraced a biological conception of race has broad implications for equality principles developed in relation to race. Most notably, a review of the Court's equal protection cases involving biological traits illustrates how the Court's understanding of race informs and is imbedded in its articulation of the immutability principle in equal protection doctrine. In conclusion, this Article argues for a discussion of equality principles that reflects the Court's nuanced treatment of race.

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