Equality Divided
Vol. 127 No. 1
Equal protection law today is divided. When minorities challenge laws of general application and argue that government has segregated or profiled on the basis of race, plaintiffs must show that government acted for a discriminatory purpose, a standard that doctrine has made extraordinarily difficult to satisfy. In discriminatory purpose cases, the ways that citizens experience state action is not constitutionally significant. By contrast, when members of majority groups challenge state action that classifies by race – affirmative action has become the paradigmatic example – plaintiffs do not need to demonstrate, as a predicate for judicial intervention, that government has acted for an illegitimate purpose. Strict scrutiny doctrine imposes restrictions on affirmative action that expressly take into consideration the ways citizens experience state action.
Equal protection cases appeal to Brown v. Board of Education and the special harms that racial classifications inflict to justify this divided framework of review. These appeals to Brown function much like appeals to Martin Luther King; they imbue claims about civil rights with foundational authority. But the divided equal protection framework that today governs claims of discrimination was not “in” Brown or Loving v. Virginia. It was forged in decades of conflict over the civil rights project, as judges invoked precedents of the civil rights era, first, to justify new forms of judicial deference in reviewing minority claims of discrimination and, then, to justify new forms of judicial scrutiny in reviewing claims of discrimination brought by whites.
This Foreword demonstrates how a body of constitutional law that began in the aspiration to protect “discrete and insular minorities” has been profoundly transformed by the conflict that enforcing equal protection provokes.