“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 invalidat- ing efforts to promote racial
integration—both be derived from a single, coher- ent 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 confu- sion.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 controver- sial. 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
classifi- cations 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 anticlassifica-
tion 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 discrimina- tion. Part III
will apply this framework broadly to the Supreme Court’s remedial
racial classification jurisprudence to demonstrate how the Court’s
current concep- tion of equality has led to the development of an
equal protection jurisprudence that reinforces oppression. Finally,
Part IV will apply this framework specifi- cally 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.
920 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
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
predomi- nantly poor school as those students attending 90–100%
white schools.28 And because poverty rates increase as relatively
privileged families pull their chil- dren out of underfunded
community schools or move out of poor communities altogether, such
communities increasingly lack the social, political, and eco- nomic
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 communi- ties 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 educa- tional 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).
2009] 921EQUAL PROTECTION JURISPRUDENCE
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 segrega- tion.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
im- proved 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).
922 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
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 constitu-
tional 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).
2009] 923EQUAL PROTECTION JURISPRUDENCE
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 concep- tion of equal protection
fundamentally misapplies the equality principle, result- ing 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 understand- ing
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 applica- tion of the
anticlassification principle implicates each of Westen’s four
“confu- sions 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 discrimina- tion,” 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.
924 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
“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
prescrip- tive 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 substan- tive 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 anticlassifi- cation 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.
2009] 925EQUAL PROTECTION JURISPRUDENCE
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 pro- duced 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 recog- nizes 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
prin- ciple 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).
926 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
alike or unalike for purposes of its presumptive rule against
racial classifica- tions,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 prin- ciple: what are the relevant criteria for
determining which people are to be deemed “alike”? Not only does
this question go unanswered, but in an analyti- cal 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 descrip- tive 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.
2009] 927EQUAL PROTECTION JURISPRUDENCE
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 necessar- ily exactly
the same as those required by a violation of the underlying
substan- tive 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
descrip- tive 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 particu- lar 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.
928 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
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
anticlassi- fication 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 subor- dination 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.
2009] 929EQUAL PROTECTION JURISPRUDENCE
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”
concep- tion 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
iden- tity of the complaining party. Alan David Freedman has called
this approach
a procedural abstraction having nothing in particular to do with
racial discrimi- nation. 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).
930 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
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 “symmetri- cal” 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 discrimina- tion 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 subordi- nate class.”79 But as this Note has demonstrated,
whether symmetrical applica- tion 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 applica- tion 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 appli- cants 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 conclu- sion 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.
2009] 931EQUAL PROTECTION JURISPRUDENCE
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 minori- ties. 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 recog- nizes 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
discrimina- tion, 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.
932 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
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 appli- cant’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 classifica- tions[,] 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.
2009] 933EQUAL PROTECTION JURISPRUDENCE
B. THE APPLICATION OF STRICT SCRUTINY IN THE ANTICLASSIFICATION
MODEL
Strict scrutiny generally requires that the state demonstrate that
racial classifi- cations 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 frame- work.
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).
934 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
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 necessar- ily 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 admis- sion 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).
2009] 935EQUAL PROTECTION JURISPRUDENCE
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 diver- sity 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.
936 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
the dominant group, despite their effective monopoly on society’s
institutional and economic power, are just as politically
vulnerable and deserving of protec- tion as those racial groups
that have historically been oppressed by the domi- nant group
through systematic exclusion and subjugation.120
In cases dealing with remedial racial classifications in the
context of educa- tion, 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
differ- ences between dominant and subjugated groups for purposes
of racial classifica- tions, 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).
2009] 937EQUAL PROTECTION JURISPRUDENCE
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 prin- ciple 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
anticlassifi- cation. 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).
938 [Vol. 97:917THE GEORGETOWN LAW JOURNAL
interests of those students injured by racial isolation.138 For the
plurality, “colorblindness” again translates into an
anticlassification principle that de- mands 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
predomi- nantly 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 popula- tion.”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 submit- ted 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 learn- ing 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.
2009] 939EQUAL PROTECTION JURISPRUDENCE
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 descrip- tive 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 argu- ments 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).
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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 assign-
ment 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 anticlassifi-
cation principle leads the Parents Involved plurality to implicitly
locate equali- ty’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
“color- blind” conception of equal protection,158 and concedes that
a compelling inter- est 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.
2009] 941EQUAL PROTECTION JURISPRUDENCE
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 bur- dens
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 extrin- sic 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 allow-
ing 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
circum- stances 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).
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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).
2009] 943EQUAL PROTECTION JURISPRUDENCE