George Washington Law Review
race, science, biomedical research, equal protection, strict scrutiny, racial pragmatizing
The overwhelming majority of biological scientists agree that there is no such thing as race among modern humans. Yet, scientists regularly deploy race in their studies, and federal laws and regulations currently mandate the use of racial categories in biomedical research. Legal commentators have tried to make sense of this paradox primarily by looking to equal protection strict scrutiny analysis. However, the colorblind approach that attends this doctrine — which many regard as synonymous with invalidation — does not offer a particularly useful way to think about the use of race in research. It offers no way to address how current uses of race in science serve to reinforce biological notions of race long thought discarded. This Article, therefore, takes a different approach by shifting the debate from how strict scrutiny analysis can bear on race-based research, to asking a much deeper question: What normative aims motivate this jurisprudence and can they be instructive in mapping appropriate and equality-enhancing regulations for the use of race in biomedical research? Despite the Supreme Court’s apparent discomfort with government invocations of race, this Article locates in its equal protection race cases elements of an overlooked line of analysis that this Article terms “racial pragmatism,” according to which certain government race-conscious decisionmaking will not trigger strict scrutiny review. By parsing through the Court’s recent race cases, this Article identifies the goals and concerns that accompany racial pragmatist reasoning and brings them to bear in the biomedical research context to offer a framework for how regulators can mandate the use of race in research without dangerously “geneticizing” race.
The Regulation of Race in Science, 80 Geo. Wash. L. Rev. 1115
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