Putting Down: Expressive Subordination and Equal Protection

Abstract

William M. Carter, Jr., divides race-conscious policies into those that concretely disadvantage minorities and those that do not subordinate them at all, but merely express the policymaker’s race-consciousness. The main aim of this article is to introduce a third category that his dichotomy excludes: race-conscious policies that amount to expressive subordination. To subordinate people expressively is to treat them as inferior, even when doing so imposes no concrete disadvantage. For example, state action that targets racial minorities in an insulting way (such as granting them free assimilation programs or directing police to discreetly check their license plates) constitutes expressive subordination, regardless of what further harm it inflicts. And, I argue, strict equal protection scrutiny is no less appropriate for such policies than for more concrete forms of racial subordination.

Keywords: speech, expression, equal protection, expressive harm, affirmative action, government speech, jurisprudence