Equal Protection Design Defects

41 Pages Posted: 30 Apr 2018 Last revised: 22 Jul 2019

Date Written: July 1, 2019


One can understand constitutional doctrine as a tool designed to effectuate the Constitution and its various provisions. Equal protection doctrine, in turn, comprises a set of Justice-made rules designed to realize the promise of equal protection under the law. The substance of that promise remains a topic of deep contestation. Nonetheless, more than forty years of constitutional jurisprudence have entrenched a vision of constitutional equality that privileges what I refer to herein as the “right to compete.” Simply put, the Supreme Court has repeatedly embraced the view that the Equal Protection Clause mandates the government to allocate public benefits — such as employment and admission — on the basis of a person’s individual “merit,” irrespective of their race.

Scholars have long critiqued the individualistic and colorblind principles on which this vision rests. Less scholarship, in contrast, has explored whether the doctrine actually gives the Supreme Court what it says it wants. One might assume that it does. Yet growing empirical evidence from domains spanning employment, law enforcement, and education suggests quite the opposite. Specifically, findings from the mind sciences reveal that common facially neutral evaluative tools — such as human judgment, predictive algorithms, and standardized tests — can systematically mismeasure the existing talent and potential (that is, merit) of individuals from negatively stereotyped racial groups. Facially neutral measures of merit, it turns out, may often compromise the right to compete. Equal protection doctrine, which renders facially neutral state action presumptively constitutional, accordingly incentivizes conduct that exacts the precise harm that, according to the Supreme Court, the Fourteenth Amendment is designed to prevent.

Keywords: behavioral realism, social science, equal protection, race, fourteenth amendment

Suggested Citation

Feingold, Jonathan, Equal Protection Design Defects (July 1, 2019). 91 Temple Law Review 513, Available at SSRN: https://ssrn.com/abstract=3160345

Jonathan Feingold (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States

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