A New Equal Protection

Abstract

The Supreme Court is dismantling what little is left of an equal protection doctrine capable of promoting a progressive vision of racial and gender equality. In recent cases involving school admissions and voting rights, conservative legal actors insist that the Equal Protection Clause demands “race indifference,” which prohibits any intent to affect racial composition or any ends that are not “race neutral.” 

The idea of “race indifference” is the culmination of a mental state theory of equal protection which sometimes defines the prohibited mental state by a moral quality (“invidious” versus “benign”) and other times by cognitive content (“race-neutral” versus “racial”). However defined, it is profoundly misguided to articulate equal protection in the vein of criminal law. Criminal law looks to mental states because it is assigning blameworthiness under a theory of retributive deserts. But equal protection is not about assessing the culpability of actors so that we might impose proportional punishment. Its goal is to ensure all citizens receive equal protection of the laws.

The conceptual slippage of the current mental-state equal protection doctrine has birthed race-indifference. In place of transparent answers to irreducibly normative questions, race-indifference depends on suppressed, undefended sociological and normative premises about what race is and what equal treatment demands given what it is. 

Existing scholarly critiques of the turn to race indifference double down on the theory’s problematic features, such as the distinction between “race conscious” and “race-neutral.” But this distinction is neither conceptually workable nor sociologically defensible. In this Article, we forge a new principled equal protection doctrine demanding that legal actors put forward a clear account of what race is and which form of equality they advance in light of it.

Keywords: equal protection, Constitutional Law, Discrimination, Voting rights, Race, Sex discrimination