Two Concepts of Discrimination

Abstract

A philosophical battle is being waged for the soul of Equal Protection jurisprudence. One side sees discrimination as a comparative wrong occurring only where a law or policy fails to treat people as equals. The other side embraces a fundamentally noncomparative view that defines impermissible discrimination as a failure to treat each individual as she is entitled to be treated. This Article distinguishes between these conceptions, demonstrates why they are normatively distinct, and identifies specific and seemingly unrelated controversies in modern Equal Protection jurisprudence that are in fact manifestations of this single schism. The insights in this Article cannot resolve all of these doctrinal controversies, but it can reveal which controversies involve a philosophical muddling of the two competing conceptions and which will require that the Supreme Court to choose between the two.

Keywords: equal protection, discrimination, disparate impact, rationality, due process