Milliken, 'Neutral Principles,' and Post-Racial Determinism
Cedric Merlin Powell
University of Louisville - Louis D. Brandeis School of Law
September 7, 2015
31 Harvard Journal on Racial & Ethnic Justice Online 1 (2015)
University of Louisville School of Law Legal Studies Research Paper Series No. 2016-2
In Milliken v. Bradley (1974), the Court concludes that "without an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy." This narrow holding severely limits the scope of integration remedies and the power of federal courts to implement them. The repercussions of the Milliken decision are felt across the nation to this day. This Article advances a critique of Milliken as a deceptively neutral decision that substantially alters the remedial mandate of Brown v. Board of Education, and the underlying substantive core of the anti-caste and anti-subordination principles of the Fourteenth Amendment. Thus, Milliken is not simply a "school decision," but an early example of the Court's post-racial determinism.
Post-racial determinism describes the Court's formalistic adherence to a set analytical framework built upon three conceptual premises: (i) all claims for transformative racial justice are presumptively invalid, so reverse discrimination claims advanced by "injured" whites are virtually guaranteed success; (ii) anti-discrimination law has largely achieved its purpose so an "expansive" view of constitutional protections must be rejected and replaced by a narrow view that ultimately leads to the reversal of these "unnecessary" race laws; and (iii) the shift from colorblind to post-racial constitutionalism means that race should never be a factor in institutional decision-making -- when it is, it is appropriate for the Court to intervene and "correct" the process notwithstanding the fact that the political community has chosen to pursue a race-conscious remedial approach. This Article concludes with a structural critique of the Milliken decision, and argues for the inclusion of the structural inequality theory as a mode of constitutional analysis that advances the constitutional mandate of the Fourteenth Amendment.
Number of Pages in PDF File: 43
Keywords: Equal Protection; School Desegregation; Fourteenth Amendment; colorblind constitutionalism; post-racial constitutionalism; neutrality; structural inequality
Date posted: September 9, 2015 ; Last revised: April 14, 2016