Abstract

http://ssrn.com/abstract=1359143
 
 

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Contingent Equal Protection: Reaching for Equality After Ricci and PICS


Jennifer S. Hendricks


University of Colorado Law School

March 13, 2009

Michigan Journal of Gender & Law, Vol. 16, 2009
University of Tennessee Legal Studies Research Paper No. 56

Abstract:     
The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court's long struggle with the desegregation of public schools. This Article examines the decision's implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent on existing, de facto inequality. Recent developments in affirmative action cases, however, have made it increasingly plausible for the conservative plurality to claim that substantive equality is not even a legitimate state interest. The Article demonstrates that this claim is nonetheless a radical departure from existing precedent across a spectrum of equal protection cases. It explores the consequences of the plurality's view, including the threat to remedial programs ranging from Title VII's disparate impact rules to the Family and Medical Leave Act. It also suggests some possibilities for developing the opposite view into a more robust and substantive theory of equality enforceable under the Equal Protection Clause.

Number of Pages in PDF File: 55

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Date posted: May 5, 2009 ; Last revised: February 11, 2010

Suggested Citation

Hendricks, Jennifer S., Contingent Equal Protection: Reaching for Equality After Ricci and PICS (March 13, 2009). Michigan Journal of Gender & Law, Vol. 16, 2009; University of Tennessee Legal Studies Research Paper No. 56. Available at SSRN: http://ssrn.com/abstract=1359143

Contact Information

Jennifer S. Hendricks (Contact Author)
University of Colorado Law School ( email )
401 UCB
Boulder, CO 80309
United States
303-735-5453 (Phone)
HOME PAGE: http://lawweb.colorado.edu/profiles/profile.jsp?id=486
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