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Norton on a Post-Racial Zero-Sum Conception of Equality

By Lawrence Solum

Helen L. Norton (University of Colorado School of Law) has posted The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding of Equality (William & Mary Law Review, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court ? along with the rest of the country ? has long divided over the question whether the United States has yet achieved a ?post-racial? society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decisionmaker?s concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to discriminate against others.

In recent decades, the Court?s swing Justices expressly rejected claims of post-racial success even while moving towards an insistence that government remain color-blind in its actual treatment of individuals. Uncomfortable with the use of race-based classifications to further a governmental interest in addressing longstanding racial subordination yet reluctant to dismiss the strength of that interest given its view of the continuing relevance of race to American life, a majority thus remained unwilling to treat as discriminatory government?s attention to racial impact when choosing among various policy options.

Recent developments, however, signal the possibility that the Court has now embraced a new understanding of equality that may be triggered by an assumption of post-racial success in certain contexts. For example, the Court in Ricci v. DeStefano for the first time characterized a decisionmaker?s attention to its practices? racially disparate impact as evidence of its discriminatory, and thus unlawful, intent under Title VII. Ricci?s redefinition of culpable mental state for antidiscrimination purposes thus destabilizes the longstanding premise that the Court does not view decisionmakers? attention to race to address patterns of racial hierarchy as itself suspicious. Decades after holding that the equal protection clause does not require government to reconsider its actions that disproportionately exclude people of color and women so long as those actions are not motivated by an intent to harm, the Court has now concluded that statutory antidiscrimination law ? and perhaps the equal protection clause as well ? prohibits government from doing so under certain circumstances. If applied in the constitutional setting, as concurring Justice Scalia predicted, such a zero-sum understanding of equality would treat a government decisionmaker?s attention to racial and gender hierarchies when choosing among various policy options as inherently suspicious ? and thus unconstitutional unless the government?s action survives heightened scrutiny.

But such a turn is by no means inevitable. Indeed, Justice Kennedy?s swing opinions in the Court?s recent race discrimination decisions suggest the additional possibility that the Court has not yet determined in which direction, if any, it might turn in its understanding of equality. If so, opportunities remain for shaping that turn in ways that might avoid a collision between antidiscrimination commitments. These include revisiting the social meaning of attending to the impact of various rules or standards on protected class members when choosing among available options that will then apply to all regardless of protected class status. Indeed, disparate impact provisions and similar efforts play an important role in ensuring that candidates ? regardless of protected class status ? are selected on actual merit rather than on unexamined yet entrenched assumptions that replicate patterns of subordination at the expense of individual opportunity. Because revisiting the social meaning of such efforts illustrates their win-win possibilities, this Article challenges a zero-sum understanding of equality as ultimately impoverished.

Full post as published by Legal Theory Blog on April 22, 2010 (boomark / email).