“The Great Equalizer”: Making Sense of the Supreme - Georgetown

“The Great Equalizer”: Making Sense of the Supreme Court’s Equal Protection Jurisprudence in American Public Education and Beyond
MATTHEW SCUTARI*
[T]he nation, for all practice and intent, has turned its back upon the moral implications, if not yet the legal ramifications, of the Brown decision. The struggle being waged today, where there is any struggle being waged at all, is closer to the one that was addressed in 1896 in Plessy v. Ferguson, in which the court accepted segregated institutions for black people, stipulating only that they must be equal to those open to white people.1
TABLE OF CONTENTS
B. ASYMMETRICAL BURDENS AND BENEFITS . . . . . . . . . . . . . . . . . . 922
II. EQUALITY AND OPPRESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 924
A. DEFINING EQUALITY: THE ANTICLASSIFICATION AND
ANTISUBORDINATION MODELS . . . . . . . . . . . . . . . . . . . . . . . . . 924
B. WESTEN’S CONFUSIONS OF EQUALITY AND THE ANTICLASSIFICATION FRAMEWORK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 927
C. ANTICLASSIFICATION AND OPPRESSION . . . . . . . . . . . . . . . . . . . 928
III. REMEDIAL RACIAL CLASSIFICATIONS AND EQUAL PROTECTION . . . . . . 930
A. THE DEVELOPMENT OF EQUAL PROTECTION JURISPRUDENCE FOR
REMEDIAL RACIAL CLASSIFICATIONS . . . . . . . . . . . . . . . . . . . . . 931
MODEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 934
* Georgetown Law, J.D. expected 2009; University of Richmond, B.A. 2006. © 2009, Matthew Scutari. This Note was developed in Professor Charles R. Lawrence III’s Constitutional Values and the American Public School seminar, and I extend to him my sincere thanks for his engaging instruction and invaluable guidance on earlier drafts. I would also like to thank Amanda Rose Good for introducing me to the work of Suzanne Pharr, as well as the editors and staff of The Georgetown Law Journal for their assistance throughout the editing process. And of course, thanks to my family—especially to my parents, Elaine and Robert Scutari—for their unwavering support.
1. JONATHAN KOZOL, SAVAGE INEQUALITIES: CHILDREN IN AMERICA’S SCHOOLS 4 (1991).
917
IV. PARENTS INVOLVED AND THE COURT’S EQUALITY ANALYSIS . . . . . . . . 938
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 942
INTRODUCTION
Early in the summer of 2007, the Supreme Court authored yet another chapter in America’s long, troubled history of separate and unequal education. In Parents Involved in Community Schools v. Seattle School District No. 1, a divided Court invalidated two student assignment plans that employed racial tiebreakers to mitigate the segregative effects of the school districts’ racially segregated housing patterns.2 The plurality found that the districts’ use of race was not sufficiently narrowly tailored to survive strict scrutiny and therefore violated the Fourteenth Amendment’s Equal Protection Clause.3 Seemingly eager to anoint its opinion heir to the legacy of Brown v. Board of Education,4
the plurality asserted that “the position of the plaintiffs in Brown was spelled out in their brief and could not have been clearer: ‘[T]he Fourteenth Amendment prevents states from according differential treatment to American children on the basis of their color or race.’”5 The Brown Court had agreed with the plaintiffs, holding that the Equal Protection Clause prohibits the operation of racially segregated public schools; that separate is inherently unequal.6 But can these two decisions—one invalidating racial segregation and the other invalidating efforts to promote racial integration—both be derived from a single, coherent notion of equality?
The answer to this question depends entirely on how one chooses to define “equality.” In a well-known 1982 article, The Empty Idea of Equality, Peter Westen asserted that equality is a principle without content, and thus acquires meaning only through the extrinsic substantive values that inform its application in a given context.7 According to Westen, the process of reformulating rights- based arguments in terms of equality can lead to substantial conceptual confusion.8 Westen ultimately concluded that equality “should be banished from moral and legal discourse as an explanatory norm.”9
2. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2746 (2007). 3. Id. at 2759–61. 4. Brown v. Bd. of Educ., 347 U.S. 483 (1954). 5. Parents Involved, 127 S. Ct. at 2767 (internal citation omitted). 6. Brown, 347 U.S. at 495. 7. Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537, 547 (1982). 8. Id. at 542. 9. Id.
918 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
Westen’s article prompted a great deal of debate among academics.10 While his ideas regarding the emptiness of equality were not new,11 his conclusion that arguments from equality should be completely abandoned was quite controversial. One scholar objected that Westen’s article proved only that equality cannot resolve moral and legal problems without reference to extrinsic moral standards, not that the concept was unnecessary to moral and legal discourse.12 Another argued that the concept of equality is not only necessary to moral and legal discourse, but has actually come to carry substantive moral content of its own in American law and public life.13 Although various commentators have offered a range of arguments in support of the equality principle, many of those who reject Westen’s conclusion seem to agree that the concept of equality is in some way necessary to the proper functioning of our social, legal, and political systems.14
As a practical matter, Westen’s proposal that equality—a concept that has been a staple of Western thought since the time of Aristotle15—be removed from our moral and legal discourse is unrealistic. But the fact of a concept’s durability does not necessarily prove its functional value. Regardless of whether equality derives meaning from the extrinsic substantive values at issue in particular cases or from “our history, our values, our social structure, our governmental institutions, and our sense of common destiny,”16 its utility can be properly assessed only by examining how the concept, given the meaning we have assigned to it, actually functions in our society.
This Note will propose an explanation for why the Court’s current conception of equality as a neutral principle of equal treatment has failed to eliminate inequality in American society generally, and in American public education in particular. I will argue that the Court’s current conception of equality as a “colorblind” principle of anticlassification—one that presumes all legal classifications based on race to be equally injurious—obscures the descriptive inquiry necessary to transform any prescriptive rule of equal treatment into a functional jurisprudential principle. Moreover, this Note will argue that the anticlassification principle may actually serve to perpetuate inequality, and that the principle of antisubordination—or any other conception of equal protection that gives content to equality’s descriptive component—would produce a jurisprudence
10. See, e.g., Erwin Chemerinsky, In Defense of Equality: A Reply to Professor Westen, 81 MICH. L. REV. 575 (1983); Kent Greenwalt, How Empty Is the Idea of Equality?, 83 COLUM. L. REV. 1167 (1983); Kenneth L. Karst, Why Equality Matters, 17 GA. L. REV. 245 (1983); Christopher J. Peters, Slouching Towards Equality, 84 IOWA L. REV. 801 (1999); Joshua Sarnoff, Equality as Uncertainty, 84 IOWA L. REV. 377 (1999); Kenneth W. Simons, The Logic of Egalitarian Norms, 80 B.U. L. REV. 693 (2000).
11. Chemerinsky, supra note 10, at 575 n.6. 12. Id. at 576. 13. Karst, supra note 10, at 249–50. 14. See, e.g., Chemerinsky, supra note 10; Greenwalt, supra note 10; Karst, supra note 10; Simons,
supra note 10. 15. See Westen, supra note 7, at 542. 16. Karst, supra note 10, at 247.
2009] 919EQUAL PROTECTION JURISPRUDENCE
that is not only more analytically sound, but also more morally defensible. My argument will proceed in four Parts. Part I will provide an overview of
the state of racial segregation in American primary and secondary education. Part II will introduce my analytical framework, a synthesis of Westen’s notion that the principle of equality is devoid of content, and thus meaningless without reference to some extrinsic moral standard,17 with Suzanne Pharr’s articulation of the common elements of oppression.18 Here I will describe how oppression may be reinforced by our failure to adopt a relevant descriptive standard that acknowledges existing baseline inequalities associated with societal discrimination. Part III will apply this framework broadly to the Supreme Court’s remedial racial classification jurisprudence to demonstrate how the Court’s current conception of equality has led to the development of an equal protection jurisprudence that reinforces oppression. Finally, Part IV will apply this framework specifically to an analysis of the Court’s recent decision in Parents Involved in Community Schools v. Seattle School District No. 1 to illustrate how application of the anticlassification principle distorts legal argument and misrepresents equality as a jurisprudential principle.
I. RACE, POVERTY, AND THE AMERICAN PUBLIC SCHOOL
In Brown v. Board of Education, the Supreme Court declined to decide whether the framers of the Fourteenth Amendment intended to end segregation in public education.19 Instead, the Court examined public education “in light of its full development and its present place in American life” to determine that “[s]eparate educational facilities are inherently unequal.”20 Of the injury caused by segregation, the Court found that “to separate [children of color] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”21 The operation of segregated public schools was thus held to violate the Equal Protection Clause.22
A. AMERICAN PUBLIC EDUCATION IN THE TWENTY-FIRST CENTURY
A half-century after the Court’s decision in Brown, approximately 40% of black and Latino students attended schools with 90–100% minority enrollment, and more than one-in-six black children attended schools made up of 99–100%
17. Westen, supra note 7, at 547. 18. SUZANNE PHARR, HOMOPHOBIA: A WEAPON OF SEXISM 53–64 (Chardon Press 1997) (1988). 19. Brown v. Bd. of Educ., 347 U.S. 483, 489–90 (1954). The Court noted that the passage of the
amendment was controversial, and that public education as the Court knew it in 1954 did not yet exist when the Reconstruction Amendments were ratified. Id.
20. Id. at 492, 495. 21. Id. at 494. 22. Id. at 495.
minority students.23 Although schools became increasingly integrated as the percentage of white students in schools attended by the average black student rose steadily throughout the 1970s, that percentage has declined just as steadily since 1988.24 Indeed, black students were more segregated from their white peers in 2001 than at any time since the late 1960s.25
The persistence of segregation in American public education is due in large part to lingering disparities in the socioeconomic status of blacks and whites that that have their origins in the state-enforced inequality of the Jim Crow era.26 Almost half of the students in schools attended by the average black or Latino student in 2001 were classified as poor or near poor.27 Students in 90–100% minority schools were almost six times as likely to be in a predominantly poor school as those students attending 90–100% white schools.28 And because poverty rates increase as relatively privileged families pull their children out of underfunded community schools or move out of poor communities altogether, such communities increasingly lack the social, political, and economic capital necessary to sustain quality schools.29
The high concentrations of poverty that disproportionately impact black and Latino communities have a significant adverse impact on educational and life outcomes for minority children.30 Although children from low-income communities require more resources to perform at the same level as children from wealthier communities,31 the services offered to poor children by schools and other agencies in urban areas are generally inferior to those available at their suburban counterparts.32 Moreover, researchers have found that a child’s educational experience may tend to reproduce existing socioeconomic hierarchies by preparing children of particular socioeconomic classes to occupy positions in society that reflect the social, economic, and political capital of their parents.33
23. ERIKA FRANKENBERG ET AL., THE CIVIL RIGHTS PROJECT, HARVARD UNIV., A MULTIRACIAL SOCIETY
WITH SEGREGATED SCHOOLS: ARE WE LOSING THE DREAM? 28 (2003). 24. Id. at 30. 25. See id. 26. See Taunya Lovell Banks, Trampling Whose Rights? Democratic Majority Rule and Racial
Minorities: A Response to Chin and Wagner, 43 HARV. C.R.-C.L. L. REV. 127, 159 (2008). 27. FRANKENBERG ET AL., supra note 23, at 35. Students were classified as “poor” or “near poor”
based on whether they received free or reduced lunch at school. Id. at 35 n.96. 28. Id. at 35. 29. See Charles R. Lawrence III, Forbidden Conversations: On Race, Privacy, and Community (A
Continuing Conversation with John Ely on Racism and Democracy), 114 YALE L.J. 1353, 1359 (2005) [hereinafter Lawrence, Forbidden Conversations].
30. See Margaret C. Wang & John A. Kovach, Bridging the Achievement Gap in Urban Schools: Reducing Educational Segregation and Advancing Resilience-Promoting Strategies, in CLOSING THE
ACHIEVEMENT GAP: A VISION FOR CHANGING BELIEFS AND PRACTICES 13 (1996). 31. See Banks, supra note 26, at 159. 32. See id.; Pedro A. Noguera, The Trouble with Black Boys: The Role and Influence of Environmen-
tal and Cultural Factors on the Academic Performance of African American Males, 38 URB. EDUC. 431, 436 (2003).
33. See generally Jean Anyon, Social Class and the Hidden Curriculum of Work, 162 J. EDUC. 67 (1980).
Thus, while state-sponsored segregation is largely a thing of the past,34 that segregation is maintained through the exercise of private choice rather than through state power does not change the nature of its effect on school systems and their students.35 Nevertheless, the Supreme Court began to limit the scope of judicially mandated desegregation in 1974,36 and has proven hostile even to voluntary, race-conscious integration measures in the absence of de jure segregation.37 Indeed, many “have come to think of de facto segregation not simply as the absence of judicially cognizable constitutional injury, but as the absence of any injury at all.”38
B. ASYMMETRICAL BURDENS AND BENEFITS
To be sure, racial integration in public education carries benefits for all children. Integrated schools foster cross-racial tolerance and understanding, reduce racial stereotypes, help prepare students for membership in a diverse workforce, and can benefit an entire school system by consolidating political, social, and economic capital to create an effective base of support for a system as a whole.39 In its Brief in Opposition to Certiorari, Seattle School District No. 1 asserted that “diverse, racially balanced schools provide educational and social benefits that are not afforded in racially concentrated schools” including “improved race relations and reduction of prejudice, improved employment and higher educational opportunities, enhanced critical thinking skills, and improved transmission of democratic values.”40 Racially integrated schools thus confer benefits upon all children, regardless of skin color.
But to say that all children may benefit from racially integrated schools is not to say that the injury inflicted by racial isolation is similarly symmetrical. It is not. Although racial isolation denies both children of color and white children the aforementioned benefits of a racially diverse educational environment, only children of color are stigmatized by the operation of segregated school systems. Segregation stigmatizes children of color because it originated as a form of
34. See John C. Powell, Living and Learning: Linking Housing and Education, 80 MINN. L. REV. 749, 752 (1996).
35. See Lawrence, Forbidden Conversations, supra note 29, at 1358 (“In the years immediately following Brown v. Board of Education, we spoke of de facto segregation with the understanding that despite the absence of legal injury there was still an injury in fact, . . . an injury caused by our private acts, a moral injury for which we were personally and collectively responsible.”).
36. See Milliken v. Bradley, 418 U.S. 717, 752–53 (1974). 37. See, e.g., Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2759–61
(2007) (finding no de jure segregation and holding use of racial tiebreakers in student assignment plans not narrowly tailored where race can be the sole factor determining a student’s assignment to a particular school).
38. Lawrence, Forbidden Conversations, supra note 29, at 1358. 39. See James E. Ryan, Voluntary Integration: Asking the Right Questions, 67 OHIO ST. L.J. 327, 337
(2006). 40. Brief in Opposition to Writ of Certiorari at 2, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist.
No. 1, 127 S. Ct. 2738 (2007) (No. 05-908).
institutionalized racism.41 The institution of segregation conveyed a message plainly designed to juxtapose white supremacy with black inferiority, and its principle purpose was to maintain white dominance in American society.42
Segregation was designed as a system of oppression and continues—even in the absence of explicit legal sanction43—to operate as such.44 As Professor Charles Lawrence argues:
Black school children are not injured as much by a school board’s placement of them in a school different from that in which it has placed white children, so much as by the reality that the school exists within a larger system that defines it as the inferior school and its pupils as inferior persons.45
As such, the fact that contemporary segregation is mainly the product of private choice rather than that of overt government policy does not nullify the stigmatic injury segregation inflicts;46 indeed, the burdens of de facto segregation are not equally distributed among children of all races. The injury perpetrated by racially segregated schools and identified in Brown persists, but the Court’s current “colorblind” equal protection jurisprudence generally demands that racial considerations be absent from remedial measures.47
Against this background of material inequality and racial discrimination, what is the practical effect of a jurisprudential conception of equality based on “neutral” principles? One possible answer is that the Court’s current conception
41. See Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 424–25 (1960).
42. See id. (“[T]he movement for segregation was an integral part of the movement to maintain and further ‘white supremacy . . .’.”).
43. The Supreme Court has maintained a legal distinction between de jure and de facto segregation. See, e.g., Missouri v. Jenkins, 515 U.S. 70, 116 (1995) (Thomas, J., concurring) (finding no constitutional violation in predominantly black school system because there was no evidence of intentional state-imposed segregation and finding that “[t]he continuing ‘racial isolation’ of schools after de jure segregation has ended may well reflect voluntary housing choices or other private decisions”); Pasadena City Bd. of Educ. v. Spangle, 427 U.S. 424, 435–36 (1976) (attributing the racial segregation of the city’s schools to “a normal pattern of human migration” by which “people randomly mov[ed] into, out of, and around” the school district). But see Milliken v. Bradley, 418 U.S. 717, 761 (1974) (Douglas, J., dissenting) (“[T]here is so far as the school cases go no constitutional difference between de facto and de jure segregation . . . .”).
44. See Lawrence, Forbidden Conversations, supra note 29, at 1377; see also Charles R. Lawrence III, “One More River To Cross”—Recognizing the Real Injury in Brown: A Prerequisite to Shaping New Remedies, in SHADES OF BROWN: NEW PERSPECTIVES ON SCHOOL DESEGREGATION 49, 53 (Derrick Bell ed., 1980) (“Because segregation’s purpose and function is to define or classify blacks as inferior, the injury that it inflicts is systemic rather than particular.”) [hereinafter Lawrence, “One More River To Cross”].
45. Lawrence, “One More River To Cross,” supra note 44, at 53. 46. Id. at 50 (“[T]he institution of segregation is organic and self-perpetuating. Once established it
will not be eliminated by mere removal of public sanction but must be affirmatively destroyed.” (emphasis in original)).
47. The state may, of course, consider race in crafting remedial measures where there is evidence of past discrimination by the state entity in question. See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 300 (1978).
of the Equal Protection Clause simply maintains the status quo: government may not distribute burdens or benefits on the basis of race, and social progress must be effectuated through the political process and by the operation of private markets. A second, more troubling possibility is that the Court’s current equal protection jurisprudence actually reinforces inequality. If social, political, and economic systems are more or less oppressive depending upon an individual’s or group’s social, political, and economic capital, then approaching equality as a formal concept that ignores baseline inequalities may actually exacerbate the oppressive nature of these systems. This is the possibility explored in what follows.
II. EQUALITY AND OPPRESSION
In this Part, I will establish a framework for critiquing the Court’s equal protection jurisprudence in cases involving racial classifications. The basic premise of this framework is that the Court’s current anticlassification conception of equal protection fundamentally misapplies the equality principle, resulting in a conceptual confusion that fosters inequality and facilitates the continued oppression of subjugated groups. Although Westen is indeed correct to the extent that he argues that equality causes conceptual confusion, his proposal that equality be banished from moral and legal discourse entirely ignores the crucial role that the concept of equality can and should play in our understanding of social and legal institutions. Reconceived as an affirmative, aspirational principle that demands each and every individual be treated as a full human being,48 the principle of equality becomes useful—indeed, it becomes essen- tial—to the preservation of rights for subjugated groups.
This Part will first articulate a basic definition of the equality principle and examine how that definition functions within both the anticlassification and antisubordination models of equal protection. Next, I will discuss how application of the anticlassification principle implicates each of Westen’s four “confusions of equality.” Finally, this Part will consider how an equal protection jurisprudence based on an anticlassification framework, because it fails to provide a coherent means of analysis for equality problems, can actually serve to perpetuate inequality and oppression.
A. DEFINING EQUALITY: THE ANTICLASSIFICATION AND ANTISUBORDINATION MODELS
At its most basic, the principle of equality embodies a simple moral truth:
48. See Alan David Freedman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1052–53 (1978). This conception of equality is related to what Freedman calls the “victim, or ‘condition,’ conception of racial discrimination,” which “suggests that the problem [of racial discrimination] will not be solved until the conditions associated with it have been eliminated. To remedy the condition of racial discrimination would demand affirmative efforts to change the condition.” Id. at 1053.
“likes should be treated alike.”49 This formulation carries both a descriptive component (“likes”) and a prescriptive component (“should be treated alike”), but the principle of equality itself gives content to neither. Thus, without reference to some extrinsic value, equality can dictate neither the relevant descriptive criteria by which “likeness” is established nor the relevant prescriptive rule of treatment to be applied.50 Without moral standards, equality ex- presses nothing more than the tautology “that which by a rule should be treated alike should by that rule be treated alike.”51
In law, equality derives applicable moral standards from the extrinsic substantive values at issue in particular cases.52 The proper inquiry under the Equal Protection Clause is therefore not whether “likes have been treated alike,” the answer to which says nothing about which persons and treatments are in fact alike, but rather what underlying substantive value establishes relevant criteria for distinguishing those who are alike from those who are unalike for purposes of a given prescriptive rule. I will consider how two candidates for this role—the values of anticlassification and antisubordination—may be informed by the equality principle.
As currently conceived by the Court, the anticlassification model of equal protection does not distinguish between classes of things that are alike and classes of things that are unalike. It instead provides only a prescriptive standard of treatment—people may not be burdened or benefited on the basis of race unless the state satisfies strict scrutiny—and ultimately says nothing about the descriptive criteria used to determine which people are in fact “alike” for purposes of the prescriptive rule. Without a descriptive standard, the anticlassification principle must apply either to no one (because no two people are alike in every respect) or to everyone (because everyone is alike in some respect).53
While the former definition renders the rule useless, the latter definition—which increasingly seems to inform the Court’s equal protection jurisprudence— renders it patently absurd,54 as all moral and legal rules require that distinctions be made between people or things.55 The anticlassification model thus ignores the asymmetrical injury inflicted by racial stigma by asserting that race, the very issue that is deemed by the rule to be prescriptively “suspect,” is irrelevant for
49. Westen, supra note 7, at 547. 50. Id. 51. See id. 52. See id. at 560. 53. Id. at 544. 54. Id. 55. Consider, for example, laws that require people to pass a test in order to obtain a driver’s license.
Those who pass the test receive a driver’s license, while those who fail do not. In terms of equality, this could be stated as the rule “all people who pass the test receive a driver’s license.” Descriptively, this rule includes only those people who pass the test; those who do not are treated differently for purposes of the rule’s prescriptive component. Such differential treatment does not violate the equality principle, however, because the rule descriptively establishes that people who fail the test are not “like” those who pass the test for the purpose of driver’s license distribution.
descriptive purposes. As such, the anticlassification principle obscures the relevant descriptive differences to which the associated prescriptive rule of like treatment must ultimately refer.
The antisubordination model, on the other hand, informs both the prescriptive and descriptive components by providing a basis for the determination that two people are morally alike or unalike in a particular respect for purposes of the rule.56 “To say that people are morally alike is . . . to articulate a moral standard of treatment—a standard or rule specifying certain treatment for certain people—by reference to which they are, and thus are to be treated, alike.”57
Indeed, any conception of equality capable of addressing the inequalities produced and perpetuated by racial discrimination must be informed by some moral standard that takes into account the asymmetrical injuries perpetrated by racial stigma:
[T]he Reconstruction Amendments and the Equal Protection Clause embody a constitutional norm or value of antisubordination. The meaning of this value can be understood only in the context of a culture, nation, and Constitution that for more than a century affirmatively embraced the values of slavery and white supremacy. . . . [The Equal Protection Clause] creates a new substantive value of “nonslavery” and antisubordination to replace the old values of slavery and white supremacy. . . . [and] requires the disestablishment of the ideology, laws, practices, and structures that were put in place in service of slavery and white supremacy. It requires a reconstruction of the substantive societal conditions that slavery created.58
Prescriptively, the antisubordination principle tells us that burdens and benefits must be distributed such that the conditions associated with racial subordination and discrimination are affirmatively remedied. Descriptively, it tells us that groups are alike for purposes of the rule to the extent that their members have historically been the victims of oppression and racial stigma, and unalike to the extent that they have not. The antisubordination model also recognizes that, because the injury inflicted by racial stigma is a collective injury, the right to be free from racial discrimination belongs to groups rather than to individuals.
Unlike the “neutral” or “colorblind” anticlassification model that currently informs antidiscrimination jurisprudence,59 the antisubordination model recognizes that black and white children cannot be “alike” for the purposes of a coherent equality analysis if racial stigma has operated and continues to operate as an oppressive force in American society. Unless the anticlassification principle can be articulated in a way that defines which individuals or groups are
56. See Westen, supra note 7, at 544–45. 57. Id. at 545. 58. Lawrence, Forbidden Conversations, supra note 29, at 1382. 59. Ian F. Haney Lopez, “A Nation of Minorities”: Race, Ethnicity, and Reactionary Colorblindness,
59 STAN. L. REV. 985, 987 (2007).
alike or unalike for purposes of its presumptive rule against racial classifications,60 its application translates into an equality analysis that says nothing more than “people who are alike shall not be benefitted or burdened solely on the basis of race.” The anticlassification conception of equal protection thus leaves unanswered a question crucial for the application of a coherent equality principle: what are the relevant criteria for determining which people are to be deemed “alike”? Not only does this question go unanswered, but in an analytical omission that has important consequences for judicial application of the equality principle, its very existence is rarely even acknowledged in the Court’s equal protection discourse.
B. WESTEN’S CONFUSIONS OF EQUALITY AND THE ANTICLASSIFICATION FRAMEWORK
Westen identifies four fallacies that may result from the process of translating a violation of a substantive value or right into the language of equality.61 First, framing equality as an independent norm can conceal the extrinsic substantive value that gives the concept its meaning, obscuring not only the substantive content of the underlying value but the very fact of its existence.62 This means that courts may invoke equality prescriptively, as a purely formal concept to invalidate laws that distribute burdens and benefits on the basis of race, without ever justifying application of the rule based on any descriptive standard. Sec- ond, by basing moral and legal conclusions on a finding that two people are “equal” for some purpose, equality can lead to the mistaken assumption that those people are morally and legally equal for all purposes.63 But whether any two people are morally or legally “alike” depends entirely on the particular substantive value at issue and the relevant comparative criteria that value establishes.64 Third, analysis of constitutional problems in terms of equality tends to dictate application of a single legal standard despite the fact that different substantive rights may require different levels of scrutiny.65 Finally, equality analysis misleadingly suggests that a violation of an individual’s “right
60. The anticlassification principle is often articulated in a way that purports to establish a descriptive standard that includes all people. For example, it has been argued that strict scrutiny should be applied whenever burdens or benefits are distributed on the basis of race because such decisions should not be based on immutable traits. But many laws not subject to heightened scrutiny distribute burdens and benefits on the basis of immutable traits other than race. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (rejecting application of heightened scrutiny to the mentally retarded); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307 (1976) (rejecting application of heightened scrutiny to the elderly).
61. See Westen, supra note 7, at 576–92. 62. Id. at 580. 63. Id. at 582. 64. See id. at 583. For example, Justice Thomas’s assertion that “there is a moral [and] constitutional
equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race,” Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240–41 (1995) (Thomas, J., concurring in part and concurring in the judgment), erroneously assumes that invidious racial classifications and remedial racial classifications can be evaluated in all cases based on the same moral or legal criteria. See Westen, supra note 7, at 581–84.
65. See Westen, supra note 7, at 584–85.
to equal treatment” permits any remedy that results in equal treatment, and thus allows lawmakers to remedy an equality violation either by removing the burden or by extending the burden to everyone on an “equal” basis.66 This is misleading because the required remedies under equality analysis are necessarily exactly the same as those required by a violation of the underlying substantive right.67
Although Westen’s ultimate conclusion that equality should be banished from our moral and legal discourse ignores the crucial role a coherent equality principle ought to play in our understanding of social and legal institutions, his analysis can be used to demonstrate how the adoption of an anticlassification framework can distort the equality principle. Indeed, the anticlassification model implicates each of Westen’s fallacies: it obscures the fact that equality analysis necessarily entails the incorporation of some descriptive moral standard to inform application of the rule of equal treatment it prescribes; it assumes that people of all races are morally and legally equal for all purposes without regard to their relevant descriptive qualities; it subjects all racial classifications to the same level of judicial scrutiny without justifying such treatment with a descriptive claim of moral “equivalence”; and it erroneously suggests that an equality violation can be remedied by any action that affords equal treatment to all parties. Thus, like Westen’s “empty” principle of equality, the anticlassification principle dictates a prescriptive rule for equal treatment without distinguishing descriptively between people who are morally alike or unalike for purposes of the rule.
The foregoing discussion provides some insight into how and why arguments from equality can distort moral and legal reasoning, but does not examine the actual consequences of the confusion identified. The following section will attempt to illustrate that the distortions engendered by these fallacies produce an equality principle that, as currently applied via the anticlassification framework, works against the interests of subjugated groups and reinforces inequality.
C. ANTICLASSIFICATION AND OPPRESSION
Equality analysis conducted through the anticlassification model obscures the substantive values that give the principle of equality its meaning in particular cases, thereby allowing courts to render decisions without justifying any particular application of the underlying substantive rule being applied. One reason that the anticlassification model has become the dominant framework in equal
66. See id. at 587. Justice Kennedy seems to have implicitly recognized this problem with equality analysis in his opinion for the Court in Lawrence v. Texas, which held that a Texas law criminalizing private sexual acts between consenting adults of the same sex violated the Due Process Clause. 539 U.S. 558, 578–79 (2003). Kennedy expressed concern that, were the Court to hold the statute unconstitutional under the Equal Protection Clause, “some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants.” Id. at 575.
67. See Westin, supra note 7, at 589–90.
protection analysis is that it purports to administer the principle of equality in its “pure” form, as a neutral principle that suggests racial classifications are “equally” injurious to all people and therefore deserving of judicial scrutiny and subsequent distribution of remedies on an “equal” basis. But such an approach, by obscuring the descriptive differences that dictate who is morally alike or unalike for purposes of the rule, “at the same time declares racial characteristics irrelevant and prevents any affirmative steps to achieve the condition of racial irrelevance.”68 Indeed, “[a]ny theory of antidiscrimination law that legitimizes as nondiscriminatory substantial disproportionate burdens borne by one race is effectively claiming that its distributional rules are already the ones that would exist in future society.”69 By ignoring these asymmetrical burdens, the anticlassification principle does nothing to remedy the injury caused by racial stigma, and ultimately reinforces the societal conditions produced by racial discrimination.
Inequality and oppression are, of course, mutually reinforcing social phenom- ena. In her book, Homophobia: A Weapon of Sexism, Suzanne Pharr identifies the elements of oppression common to the subjugation of oppressed groups.70
Pharr posits that oppression manifests itself in society through a defined norm cast in opposition to the “otherness” of the oppressed and backed by the institutional and economic power of the dominant group.71 Oppressive systems work to discourage group identity and solidarity within the subjugated group through assimilation and tokenism, which support an “individualized approach to success.”72 The adoption of an individualized approach ultimately encour- ages individual solutions that deemphasize the collective nature of group subordination and allow the dominant group to blame those members of the subjugated group who do not succeed for their own failure.73
The conceptual confusion caused by an anticlassification understanding of equality facilitates oppression by allowing courts to ignore the descriptive asymmetries that perpetuate the subjugation of oppressed groups. Because the anticlassification principle fails to identify a descriptive moral standard of “likeness” by which to inform its prescriptive mandate of equal treatment,74
courts implicitly default to society’s defined norm—that of the able-bodied, privileged, white male75—and all people are judged by a standard of “likeness” that uses the dominant group as a referent. The same heightened scrutiny is then applied to all racial classifications because, in the absence of a descriptive moral
68. Freedman, supra note 48, at 1074 (emphasis added). 69. Id. at 1075. 70. PHARR, supra note 18, at 53–64. 71. Id. at 53–56. The oppressed group is also denied any prior claim to inclusion in the defined
norm, and its history is distorted. Id. at 56–59. The group is stereotyped, isolated, and rendered invisible. Id. at 58–61. Finally, oppression is maintained by internalized oppression and horizontal hostility among members of the oppressed group. Id. at 60–61.
72. Id. at 62–64. 73. Id. at 61–64. 74. See discussion supra sections II.A. & II.B. 75. See PHARR, supra note 18, at 53.
standard, all people are assumed to be alike both to the extent that they benefit “equally” from access to the dominant group’s institutional and economic power and to the extent that they are burdened “equally” by state-imposed limitations on such access. Whites and people of color are ultimately treated as “equal” for all purposes, and the descriptive moral difference between them for purposes of the rule—that of the asymmetrical injury of racial stigma and subordination—is ignored.
Because people of color are simultaneously held to the same standards as the dominant white majority, and denied any legal remedy for the conditions that perpetuate their material inequality, a group that is “equal” before the law is cast as the “other” in society. Those who are able to assimilate into the dominant group and achieve success are held out by the dominant group as counterex- amples to the subjugated group’s claims of oppression. And the success of some individuals from within the subjugated group is used to justify the administra- tion of individualized solutions—in the form of an “individual rights” conception of equal protection—and to blame other individuals for their own failure to transform formal legal equality into social, political, and economic equality.
The foregoing becomes especially problematic in the context of an oppressed group’s efforts to achieve equal access to educational resources. Horace Mann famously asserted that “[e]ducation . . . beyond all other devises of human origin, is the great equalizer of the condition of men,—the balance-wheel of the social machinery,”76 and educational equality is indeed a crucial prerequisite for an oppressed group’s ability to compete for equal access to the institutional and economic power controlled by the dominant group. But by largely denying the continued relevance of race and the realities of its historical and social meaning, the Court’s current equal protection jurisprudence does little to alleviate existing patterns of oppression across society and, ultimately, reinforces them.
III. REMEDIAL RACIAL CLASSIFICATIONS AND EQUAL PROTECTION
Under current equal protection jurisprudence, the Court applies strict scrutiny to determine whether a law that distributes burdens or benefits on the basis of race can overcome the anticlassification model’s strong presumption against racial classifications—a presumption that applies regardless of the racial identity of the complaining party. Alan David Freedman has called this approach
a procedural abstraction having nothing in particular to do with racial discrimination. Its application to racial discrimination cases depends on value choices external to questions of means alone. And even where means-oriented review is employed to confirm an implicit value choice about racial discrimination, the employment of this ostensibly value-neutral technique will have the effect of representing the problem of racial discrimination as an ahistorical abstrac-
76. HORACE MANN, END POVERTY THROUGH EDUCATION (1848), reprinted in HORACE MANN ON THE
CRISIS IN EDUCATION 124 (Louis Filler ed., 1965).
tion removed from the actual setting that gave rise to the implicit value choice for intervention.77
This disconnect between the Court’s antidiscrimination jurisprudence and racial discrimination itself is due in large part to a doctrinal shift toward a “symmetrical” application of heightened scrutiny that focuses on invalidating suspect classifications rather than protecting suspect classes.78 As Darren Lenard Hutchin- son notes, “once a subordinate class successfully establishes that the discrimination it faces warrants exacting judicial scrutiny, the Court applies heightened scrutiny symmetrically and extends judicial solicitude to any individual who encounters discrimination based on the ‘same’ trait as members of the subordinate class.”79 But as this Note has demonstrated, whether symmetrical application of a prescriptive rule of equal treatment is warranted depends entirely on the existence of descriptive symmetry among members of the affected classes.80
Given the anticlassification principle’s inability to give equality analysis any descriptive content, the Court has exhibited substantial confusion in its application of strict scrutiny to remedial classifications based on race.
A. THE DEVELOPMENT OF EQUAL PROTECTION JURISPRUDENCE FOR REMEDIAL RACIAL
CLASSIFICATIONS
The Court first attempted to establish the proper standard of review for remedial racial classifications in Regents of the University of California v. Bakke.81 In Bakke, a white applicant sued after being denied admission to a state medical school that had implemented a set-aside program for minority applicants who were found to have been the victims of educational or economic deprivation.82 Justice Powell’s controlling opinion for a deeply divided court found that all racial classifications should be subject to strict scrutiny because “the guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of color. If both are not accorded the same protection, then it is not equal.”83 Justice Powell’s conclusion assumes that, for purposes of racial classifications, there is no descriptive difference between black and white applicants. Indeed, it assumes that the protections afforded by the Equal Protection Clause have nothing to do with the injury inflicted by a given racial classification on a particular individual or
77. Freedman, supra note 48, at 1059. 78. See Darren Lenard Hutchinson, “Unexplainable on Grounds Other than Race”: The Inversion of
Privilege and Subordination in Equal Protection Jurisprudence, 2003 U. ILL. L. REV. 615, 638–39 (2003).
79. Id. at 638. 80. See discussion supra sections II.A. & II.B. 81. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). 82. Id. at 276–78. 83. Id. at 289–90. Justice Powell refused to enjoin all use of race in admissions decisions, however,
finding that race could be used in an admissions program that did not “insulate the individual from comparison with all other candidates for the available seats.” Id. at 317.
group, but only with whether all individuals have been treated “equally” by a prescriptive rule against classifying individuals on the basis of race.
Justice Brennan, writing separately for himself and three others in Bakke, implicitly recognizes the substantive emptiness of this approach:
[C]laims that law must be “color-blind” or that the datum of race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. This is not to denigrate aspiration; for reality rebukes us that race has too often been used by those who would stigmatize and oppress minorities. Yet we cannot—and . . . need not under our Constitution . . . —let color blindness become myopia which masks the reality that many “created equal” have been treated within our lifetimes as inferior both by law and by their fellow citizens.84
Brennan goes on to note that “whites as a class have [none] of the ‘traditional indicia of suspectness,’”85 and recommends that something akin to intermediate scrutiny be employed “because of the significant risk that racial classifications established for ostensibly benign purposes can be misused.”86
[T]o justify such a classification an important and articulated purpose for its use must be shown. In addition, any statute must be stricken that stigmatizes any group or that singles out those least well represented in the political process to bear the brunt of a benign program. Thus, our review under the Fourteenth Amendment should be strict—not “‘strict’ in theory and fatal in fact,” because it is stigma that causes fatality—but strict and searching nonetheless.87
Justice Brennan’s approach to the problem of remedial racial classifications stands in stark contrast to Justice Powell’s because Brennan implicitly recognizes that a workable equality analysis requires a descriptive component; his opinion speaks not just to the prescriptive rule against racial classifications, but also to the descriptive moral qualities that differentiate the classes of people affected by such classifications. Brennan’s analysis thus avoids two of Westen’s “confusions.”88 First, by highlighting the descriptive differences between black and white applicants for the purposes of stigmatic injury and societal discrimination, Brennan avoids assuming that all people or groups are equal for purposes of the substantive value that underlies the prescriptive rule against racial classifications.89 And second, by suggesting that remedial racial classifications be evaluated under intermediate rather than strict scrutiny, Brennan recognizes
84. Id. at 327 (Brennan, J., concurring in the judgment in part and dissenting in part). 85. Id. at 357 (quoting San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973)). 86. Id. at 361. 87. Id. at 361–62 (emphases added). 88. See supra section II.B. 89. See Westen, supra note 7, at 582–83.
that the constitutional interest of white applicants in avoiding burdensome racial classifications is weaker than that of black applicants, a descriptive asymmetry that warrants application of different levels of judicial scrutiny.90
Justice Powell’s anticlassification principle, by extending the protections afforded by a prescriptive rule of equal treatment to all individuals, permits the Court to ignore both the asymmetrical nature of the injury inflicted by racial classifications and the resulting descriptive differences between black and white applicants that may justify differential treatment under the rule it prescribes. Viewed from Pharr’s perspective, the implicit descriptive standard is that of the defined norm of the privileged white applicant, and all applicants are assumed to have access to the institutional and economic power controlled by the dominant group.91 But as Brennan points out, such access is “an aspiration rather than a description of reality.”92 As such, weighing each minority applicant’s qualifications “fairly and competitively” against those of white applicants fails to insulate the minority applicant from the oppressive material inequality for which the diversity preference was designed to compensate.
Justice Brennan’s suggestion that intermediate scrutiny be applied to remedial racial classifications would not ultimately gain the support of a majority of the Court. In 1989, the Court held in City of Richmond v. J.A. Croson Co. that all state and local laws that classify individuals on the basis of race are subject to strict scrutiny.93 Although the Court later held in Metro Broadcasting, Inc. v. FCC that intermediate rather than strict scrutiny was the proper standard of review for remedial racial classifications in laws passed at the federal level,94
Metro Broadcasting was quickly overruled by Adarand Constructors, Inc. v. Pena.95 In Adarand, the Court held that all racial classifications must be judged by the same standard because the application of different standards would undermine the three principles of “congruence between the standards applicable to federal and state racial classifications, . . . skepticism of all racial classifications[,] and consistency of treatment irrespective of the race of the burdened or benefited group.”96 Tellingly, Justice O’Connor’s majority opinion asserts that “[t]he principle of consistency explains the circumstances in which the injury requiring strict scrutiny occurs” and claims that “any individual suffers an injury when he or she is disadvantaged by the government because of his or her race, whatever that race may be.”97 Thus, in J.A. Croson and Adarand, the Court moved one step closer to establishing an anticlassification-based equal protection jurisprudence that not only ignores, but indeed affirmatively denies
90. See id. at 587; supra note 65 and accompanying text. 91. See discussion supra section II.C. 92. Bakke, 438 U.S. at 327. 93. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989). 94. Metro Broad., Inc. v. FCC, 497 U.S. 547, 564–65 (1990). 95. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995). 96. Id. at 226–27. 97. Id. at 230.
B. THE APPLICATION OF STRICT SCRUTINY IN THE ANTICLASSIFICATION MODEL
Strict scrutiny generally requires that the state demonstrate that racial classifications are “narrowly tailored measures that further compelling government interests.”98 The “compelling interest” inquiry requires a value judgment as to what government interests are sufficiently compelling. The “narrowly tailored” inquiry requires a determination that the descriptive classification “fits” the asserted compelling interest “with greater precision than any alternative means.”99
What follows will explore the conceptual flaws in the Court’s application of strict scrutiny to remedial racial classifications under its anticlassification framework.
1. The Compelling Interest Inquiry
In racial classification cases, the Court’s compelling interest inquiry serves to identify those interests that justify violation of the anticlassification principle; it purportedly tells the court when “likes” may be treated “unalike” on the basis of race. In Bakke, Justice Powell suggested that two government interests could satisfy the Court’s compelling interest inquiry in remedial racial classification cases.100 One such interest was found in “ameliorating, or eliminating where feasible, the disabling effects of identified discrimination.”101 According to Powell, identified discrimination requires “judicial, legislative, or administrative findings of constitutional or statutory violations,” and as such does not encom- pass the effects of societal discrimination, “an amorphous concept of injury that may be ageless in its reach to the past.”102 Writing for the plurality in Wygant v. Jackson Board of Education eight years later, Justice Powell would reiterate that “[s]ocietal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.”103 “No one doubts that there has been serious racial discrimination in this country[,]” Powell continued, “[b]ut as the basis for imposing discriminatory legal remedies that work against innocent people, societal discrimination is insufficient and over expansive.”104
Justice Powell’s distinction between identified discrimination and societal discrimination ignores that there is a descriptive moral difference between those who have been injured by societal discrimination and those who have not. Within an antisubordination framework, it makes no difference whether the injury is easily ascertainable or “amorphous”; once one recognizes the reality of racial stigma and oppression, a coherent equality principle mandates remedial
98. Id. at 227. 99. Wygant v. Bd. of Educ., 476 U.S. 267, 280 n.6 (1986). 100. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307, 311–13 (1978). 101. Id. at 307. 102. Id. 103. Wygant, 476 U.S. at 276. 104. Id. (emphasis in original).
action because of the corresponding right to be free from such injuries. But on the other hand, even within an anticlassification model, it still does not necessarily follow that denying admission to a black student on account of her race and denying admission to a white student on account of her race cause constitution- ally equivalent injuries. Because of “the different state interests poised against their rights[,] the right of a person not to be classified on the basis of race may outweigh a state’s interest in promoting segregation and yet not outweigh a state’s interest in promoting integration.”105 But because the anticlassification principle lacks any descriptive criteria by which to establish the relative weight of the parties’ rights, it is impossible to comparatively evaluate the importance of an asserted compelling interest in remedying past discrimination.
Justice Powell found a second compelling interest, one that is entirely non-remedial in nature, in a university’s interest in the “attainment of a diverse student body.”106 Justice Powell grounded this interest not in equality, but in the “[a]cademic freedom,” derived from the First Amendment, “of a university to make its own judgments as to education.”107 The validity of this compelling interest in diversity in higher education was reaffirmed twenty-five years later in Grutter v. Bollinger,108 in which white applicants who had been denied admission to the University of Michigan Law School asserted that the school’s race-conscious admissions policy that sought to enroll a “critical mass” of minority students violated the Equal Protection Clause.109 In upholding the admissions policy, Justice O’Connor found that “the Law School’s concept of critical mass is defined by reference to the educational benefits that diversity is designed to produce,”110 and that “student body diversity . . . ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’”111 O’Connor goes on to note:
These benefits are not theoretical but real, as major American businesses have made clear that the skills needed in today’s increasingly global market- place can only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints . . . .
We have repeatedly acknowledged the overriding importance of preparing students for work and citizenship, describing education as pivotal to “sustain-
105. Westen, supra note 7, at 583 (emphases in original). 106. Bakke, 438 U.S. at 311–13. 107. Id. at 312. Of course, the right being vindicated by the diversity rationale—that of academic
freedom—belongs to the university, not to any particular individual or group. Thus, when based on a compelling interest in diversity, the Court’s equal protection analysis has, in a sense, nothing to do with equality at all.
108. Grutter v. Bollinger, 539 U.S. 306, 328 (2003). 109. Id. at 312–17. 110. Id. at 330. 111. Id. (internal citations omitted).
ing our political and cultural heritage” with a fundamental role in maintaining the fabric of society.112
The benefits to which Justice O’Connor refers are shared by all students who participate in a diverse educational environment; indeed, they extend to society as a whole. Although this conception of diversity incidentally advances the interests of those individual minority students who are admitted under the policy, its ultimate benefits flow not to the subjugated group, but to the institutional and economic power of the dominant group.113 The diversity rationale also raises concerns regarding tokenism, a “method of limited access that gives false hope to those left behind and blames them for ‘not making it.’”114 As Pharr explains, tokenism “takes the brightest and best of the most assimilated, rewards them with position and money (though rarely genuine leadership and power), and then uses them as a model of what is necessary to succeed, even though there are often no more openings for others who may follow their model.”115 Justice O’Connor herself acknowledges that the diversity rationale serves such a legitimating function when she notes that “[i]n order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.”116 What Justice O’Connor fails to acknowledge are the asymmetrical burdens that make such racial preferences necessary in the first place. Despite the Court’s declaration that separate is inherently unequal,117 there seems to remain not one path to leadership, but two.
2. The Narrow Tailoring Inquiry
Even when a state’s purpose is found sufficiently compelling to justify violation of the anticlassification principle, the means of classification “must be specifically and narrowly framed to accomplish that purpose.”118 The Court’s narrow tailoring inquiry is designed “to ensure that the means chosen ‘fit’ the compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”119 As such, the narrow tailoring inquiry suggests that racial prejudice or stereotyping is equally injurious to all people, regardless of the race of the victim. Here again, whites and people of color are treated as “equal” for purposes of racial classifications despite the asymmetrical injury inflicted by racial stigma. Ultimately, extending judicial solicitude to privileged classes erroneously suggests that members of
112. Id. at 330–31 (quoting Plyler v. Doe, 457 U.S. 202, 221 (1982)). 113. See discussion supra section II.C. 114. PHARR, supra note 18, at 62. 115. Id. at 63. 116. Grutter, 539 U.S. at 332. 117. Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954). 118. Grutter, 539 U.S. at 333 (quoting Shaw v. Hunt, 517 U.S. 899, 908 (1996)). 119. Id.
the dominant group, despite their effective monopoly on society’s institutional and economic power, are just as politically vulnerable and deserving of protection as those racial groups that have historically been oppressed by the dominant group through systematic exclusion and subjugation.120
In cases dealing with remedial racial classifications in the context of education, the narrow tailoring requirement is also used to vindicate the Court’s conception of the Equal Protection Clause as protective of individuals rather than groups.121 Thus, the Grutter Court found that, to be sufficiently narrowly tailored, “a university’s admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”122
This conception of the Equal Protection Clause as protecting a personal rather than a group right lends itself to the kind of individualized solutions that render irrelevant the collective nature of the asymmetrical stigmatic injury inflicted by racial classifications.123 Rather than considering the descriptive moral differences between dominant and subjugated groups for purposes of racial classifications, the Court can thus assert the formal legal equality of all individuals while ignoring the social and material inequality of groups.124 But the reality of group inequality persists, and the Court’s shift from heightened scrutiny of suspect classes—or groups—to that of suspect classifications125 obscures the fact that the anticlassification principle continues to incorporate the dominant group as a descriptive referent; indeed, “[t]he Court implicitly treats whites as vulnerable when it applies strict scrutiny to their claims of discrimination.”126 By at once explicitly claiming to extend universal protection from racial classifications to all individuals and implicitly using the dominant group as a descriptive referent, the Court’s current equal protection jurisprudence perpetuates racial subjugation by assuming that all individuals share in the institutional and economic power controlled by the dominant group.
Having decided several cases regarding judicially mandated public school desegregation127 and racial preferences in higher education,128 the Supreme Court ruled on the constitutionality of voluntary integration plans in public
120. See Hutchinson, supra note 78, at 640. 121. Grutter, 539 U.S. at 326 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227
(1995)). 122. Id. at 336–37. 123. Cf. PHARR, supra note 18, at 64. 124. See Westen, supra note 7, at 582; text accompanying supra note 69. 125. See Hutchinson, supra note 78, at 638–39. 126. Id. at 639 (emphasis added). 127. See, e.g., Missouri v. Jenkins, 515 U.S. 70 (1995); Milliken v. Bradley, 418 U.S. 717 (1974);
Keyes v. Sch. Dist. No. 1, 413 U.S. 189 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971); Green v. County Sch. Bd. of New Kent County, 391 U.S. 430 (1968).
128. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Gratz v. Bollinger, 539 U.S. 244 (2003); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
primary and secondary schools in 2007.129 That decision, Parents Involved in Community Schools v. Seattle School District No. 1,130 features a plurality opinion that provides a stark illustration of the confusions inherent in the application of a “colorblind” equal protection jurisprudence based on the principle of anticlassification.
IV. PARENTS INVOLVED AND THE COURT’S EQUALITY ANALYSIS
In Parents Involved, a divided Court invalidated two student assignment plans designed to promote racially integrated schools on the grounds that neither plan was sufficiently narrowly tailored to survive strict scrutiny.131
Although Justice Kennedy’s controlling opinion suggests that race-conscious measures could be employed to achieve certain compelling interests, including avoiding racial isolation in schools and promoting diversity, Kennedy ultimately joined the plurality to hold that the student assignment plans at issue were invalid means of achieving such goals.132 The plurality would have gone much further, suggesting that voluntary racial integration efforts violate the Equal Protection Clause because they advance no compelling government interest at all.133 What follows will illustrate how the plurality’s opinion exhibits the confusions identified by Westen,134 and how the Court’s application of the anticlassification principle perpetuates racial inequality in American public education.
Like in past cases involving remedial racial classifications, the plurality’s application of the anticlassification principle in Parents Involved allows equality to “masquerad[e] as an independent norm”135 and thus conceals the failure of its analysis to distinguish between the descriptively different classes of individuals affected by the prescriptive rule of treatment being applied.136 Noting that the Court has repeatedly asserted that “[r]acial balance is not to be achieved for its own sake,”137 the plurality assumes that the Equal Protection Clause incorpo- rates no descriptive moral standard to inform the prescriptive rule of anticlassification. The plurality thus refuses to acknowledge that de facto segregation inflicts an asymmetrical injury by reframing racial integration as “racial balanc- ing,” which implies that the state is acting in its own interest rather than in the
129. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007). 130. Id. 131. Id. at 2746, 2759–61. 132. See id. at 2789, 2791–93 (Kennedy, J., concurring in part and concurring in the judgment). 133. See id. at 2757–59, 2767–68 (plurality opinion). 134. See supra section II.B. For a related discussion of Westen’s writings in the context of Parents
Involved, see Michael J. Kaufman, PICS in Focus: A Majority of the Supreme Court Reaffirms the Constitutionality of Race-Conscious School Integration Strategies, 35 HASTINGS CONST. L.Q. 1, 35–38 (2007).
135. Westen, supra note 7, at 579. 136. See discussion supra Part III. 137. Parents Involved, 127 S. Ct. at 2757 (internal quotation marks and citations omitted).
interests of those students injured by racial isolation.138 For the plurality, “colorblindness” again translates into an anticlassification principle that demands all people be treated as though they have equal access to the institutional and economic power controlled by the dominant white majority.
As this Note has attempted to demonstrate, the reality is unfortunately very different,139 and the record before the Court in Parents Involved only reinforces this point. Of the five over-subscribed Seattle schools at issue in the Parents Involved litigation, three (Ballard, Hale, and Roosevelt) are located in predominantly white north Seattle, one (Garfield) is located in racially diverse central Seattle, and one (Franklin) is located in predominantly non-white south Se- attle.140 In 1988, after a decades-long struggle to foster racial integration in its public schools, Seattle enacted a student assignment plan that utilized a series of “tiebreakers,”141 the second of which gave preference to a student’s preferred school when that student’s race “differed from a race . . . that accounted for a higher percentage of the school population than of the total district population.”142 The tiebreaker applied only to over-subscribed schools, and the plan was revised in 1999 such that it would take effect only if “the school’s minority or majority enrollment [fell] outside of a 30% range centered on the minority/ majority population ratio within the district.”143 According to the brief submitted by Seattle School District No. 1, “[b]ecause the majority of Seattle’s over-subscribed high schools are located in predominantly white areas, the Board concluded that a high school assignment plan that relied only on geogra- phy and parental choice would disproportionately exclude non-white students from their schools of choice.”144 Without the integration tiebreaker, the three over-subscribed high schools in the predominantly white neighborhoods of north Seattle would have been inaccessible to the seventy-five percent of Seattle’s non-white population residing in the southern part of the city.145 In fact, Franklin would have enrolled a student body that was eighty percent non-white without the integration tiebreaker.146 The Board therefore sought to prevent Seattle’s segregated housing patterns from resulting in segregated learning environments for the city’s children by providing “non-white students in south Seattle with equitable access to the most popular schools.”147
138. Id. at 2752 (“We have emphasized that the harm being remedied by mandatory desegregation plans is the harm that is traceable to segregation, and that ‘the Constitution is not violated by racial imbalance in the schools, without more.’” (quoting Miliken v. Bradley, 433 U.S. 267, 280 n.14 (1977)).
139. See supra Part I. 140. Brief for Respondents at 6, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S.
Ct. 2738 (2007) (No. 05-908). 141. See Parents Involved, 127 S. Ct. at 2803–05 (Breyer, J., dissenting). 142. Id. at 2805. 143. Id. at 2806. 144. Brief for Respondents, supra note 140, at 33 (emphasis added). 145. Id. at 1 (explaining that while over 75% of the Seattle district’s non-white students live in the
southern half of the city, 67% of the district’s white students live in the city’s northern half). 146. Id. at 39. 147. Id. at 33.
Throughout its brief, the District’s arguments emphasize that the benefits of racial integration and the burdens of racial isolation run not just to all students, but to minority students in particular.148 For example, the brief emphasizes that
[t]he Board sought to achieve three distinct purposes: (1) to promote the educational benefits of diverse school enrollments; (2) to reduce the poten- tially harmful effects of racial isolation by allowing students the opportunity to opt out of racially isolated schools; and (3) to make sure that racially segregated housing patterns did not prevent non-white students from having equitable access to the most popular over-subscribed schools.149
These interests reflect “the consistent choice made by the people of Seattle . . . not to allow segregated housing patterns . . . to create racial inequities in their public school system.”150 Moreover, the efforts were based on “significant evidence that integrated schools can result in increased student achievement, particularly for minority students.”151 The District thus recognized the descriptive moral differences between black and white students for purposes of school assignment by acknowledging that racial isolation creates educational inequities that are particularly harmful to minority students.
What the District’s brief seems deliberately to avoid addressing in any forthright manner is precisely why some Seattle schools were more likely to be over-subscribed than others. In fact, the District consigns its most direct arguments on this point to a footnote:
Petitioner’s description of the “plight” of the Kurfirst and Bachwitz children is in some tension with the facts. It is asserted that these parents—who selected Ballard, Hale, and Roosevelt high schools—wanted their children to attend “a school close to home.” But Hale and Roosevelt are not significantly closer to the Kurfirst and Bachwitz homes than Franklin or Garfield (which those families did not choose) or Ingraham (which they refused to attend), which was ranked in the same category for academic rigor as Ballard, Franklin, and Garfield. . . . And, although Petitioner argues that the over-subscribed schools are “better” than the other Seattle high schools, Ms. Kurfirst and Ms. Bach- witz offered no plausible explanation of why they had declined even to seek assignment to two of the over-subscribed schools, Franklin and Garfield.152
In pointing out that these white plaintiffs sought assignment to only the three over-subscribed schools located in Seattle’s predominantly white neighborhoods
148. See generally id. 149. Id. at 18. 150. Id. at 24. 151. Id. at 27 (emphasis added); see also id. at 28 (explaining that through school integration, the
Board sought to “‘open opportunity networks in areas of higher education and employment’ for minority students in particular” (internal citation omitted)).
152. Id. at 46 n.38 (internal citations omitted).
and declined to do so at the two over-subscribed schools located in the city’s racially diverse and predominantly black neighborhoods, the District seems to maintain that Seattle’s schools—at least those that were over-subscribed—are essentially fungible.153 Indeed, its virtual silence on the issue of school quality suggests that racial composition is the only relevant difference among the schools affected by its student assignment plan. As such, the District’s argument implies not that differential treatment of black and white students is justified by the descriptive asymmetries between the two groups, but that its school assignment plan does not entail any prescriptively different treatment at all. In contrast, the brief submitted by Parents Involved in Community Schools (PICS) argues directly and at some length that Seattle’s various schools are anything but fungible,154 noting that they “vary widely in quality, program offerings, and popularity.”155
Thus, instead of arguing that differential treatment of minority and white students is justified by the descriptive inequality of the groups, the Court’s equal protection analysis—because it demands prescriptively equal treatment without regard to the descriptive differences between white and minority students— forces the District to make the dubious argument that all of its schools are of equal quality. PICS, on the other hand, by arguing that Seattle’s schools are not equal and that “each individual student, whatever her race, has a right not to be discriminated against because of her race,”156 effectively grounds its argument in the Court’s flawed conception of equality: by assigning students who are descriptively “alike” to unalike schools on the basis of race, the District has violated the prescriptive rule demanding like treatment of “like” individuals. As in past cases involving remedial racial classifications,157 the Court’s anticlassification principle leads the Parents Involved plurality to implicitly locate equality’s descriptive component in society’s defined norm, effectively obscuring the historical inequality of the group the plurality claims to be treating equally.
Although Justice Kennedy refuses to accept the plurality’s strictly “colorblind” conception of equal protection,158 and concedes that a compelling interest in avoiding racial isolation does indeed exist in certain circumstances,159 he nonetheless insists that the Equal Protection Clause creates a presumption against racial classifications rather than a presumption against racial inequality. Kennedy is thus mired in an irreconcilable conflict as he seeks to vindicate an
153. See id.; see also Transcript of Oral Argument at 34, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (No. 05-908) (Michael F. Madden on behalf of Respondent) (“[T]here’s no material differences between those . . . popular schools . . . .”).
154. See Petitioner’s Brief at 3–5, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) (No. 05-908).
155. Id. at 4. 156. Id. at 33. 157. See discussion supra Part III. 158. See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2788, 2791–92
(2007) (Kennedy, J., concurring in part and concurring in the judgment). 159. Id. at 2797.
anticlassification principle devoid of descriptive content while simultaneously acknowledging the descriptively asymmetrical status of the affected classes:
From the standpoint of the victim, it is true, an injury stemming from racial prejudice can hurt as much when the demeaning treatment based on race identity stems from bias masked deep within the social order as when it is imposed by law. . . . Laws arise from a culture and vice versa. Neither can assign to the other all responsibility for existing injustices.
Yet, like so many other legal categories that can overlap in some instances, the constitutional distinction between de jure and de facto segregation has been thought to be an important one. . . . Reduction of an individual to an assigned racial identity for differential treatment is among the most pernicious actions our government can undertake. The allocation of governmental burdens and benefits, contentious under any circumstances, is even more divisive when allocations are made on the basis of individual racial classifications.160
It is difficult to imagine how Justice Kennedy can reconcile the reality of asymmetrical societal discrimination with a legal principle that insists on admin- istering a symmetrical remedy. Indeed, Kennedy’s position seems to suggest that he was tempted to reach outside the anticlassification model to seek a descriptive justification for his legal conclusion, but was ultimately unwilling to reconsider his commitment to formal equality.
CONCLUSION
A coherent equal protection jurisprudence requires the incorporation of extrinsic substantive values that give content to both the prescriptive and descriptive components of the equality principle. An antisubordination model could provide courts with such content, and would ultimately alleviate inequalities by allowing for the distribution of burdens and benefits in a manner that takes the mutually reinforcing realities of inequality and oppression into account. The anticlassification model, by allowing for the allocation of burdens and benefits based on a descriptive standard of “colorblindness,” reinforces racial inequality by ignoring the descriptive differences necessary to explain in what circumstances racial classifications should in fact be deemed suspect. Parents Involved and many other cases invalidating remedial racial classifications are wrongly decided precisely because the anticlassification conception of equal protection distorts the equality principle and prevents progress toward a more egalitarian society.
At the outset of his brief but strongly worded dissenting opinion in Parents Involved, Justice Stevens summarily rejects the reasoning of the plurality in a passage of remarkable moral clarity:
160. Id. at 2795–96 (internal citations omitted).
There is a cruel irony in The Chief Justice’s reliance on our decision in Brown v. Board of Education. The first sentence in the concluding paragraph of his opinion states: “Before Brown, schoolchildren were told where they could and could not go to school based on the color of their skin.” This sentence reminds me of Anatole France’s observation: “[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.” The Chief Justice fails to note that it was only black schoolchildren who were so ordered; indeed, the history books do not tell stories of white children struggling to attend black schools. In this and other ways, The Chief Justice rewrites the history of one of this Court’s most important decisions.161
As long as the Equal Protection Clause remains colorblind, that history will continue to be rewritten, and a coherent notion of equality will remain far more “amorphous” than the societal discrimination for which the Court refuses to allow us to take responsibility.
161. Id. at 2797–98 (Stevens, J., dissenting) (internal citations omitted).

“The Great Equalizer”: Making Sense of the Supreme - Georgetown

Documents

Transcript of “The Great Equalizer”: Making Sense of the Supreme - Georgetown