An Intersectional Critique of Tiers of Scrutiny: Beyond 'Either/Or' Approaches to Equal Protection

129 The Yale Law Journal Forum 108 (2019)

UCLA School of Law, Public Law Research Paper No. 19-44

23 Pages Posted: 11 Nov 2019

See all articles by Devon W. Carbado

Devon W. Carbado

University of California, Los Angeles (UCLA) - School of Law

Kimberle Crenshaw

Columbia Law School

Date Written: November 6, 2019

Abstract

For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a university’s affirmative-action plan that specifically targets Black women, the Essay considers what tier of scrutiny should apply. Because, for the most part, scholars take a race or gender approach to equal-protection law, they have not engaged that doctrinal puzzle and its implications for tiers-of-scrutiny writ large.

Keywords: constitutional law, antidiscrimination, critical race theory, feminist theory, and employment discrimination

Suggested Citation

Carbado, Devon W. and Crenshaw, Kimberle, An Intersectional Critique of Tiers of Scrutiny: Beyond 'Either/Or' Approaches to Equal Protection (November 6, 2019). 129 The Yale Law Journal Forum 108 (2019); UCLA School of Law, Public Law Research Paper No. 19-44. Available at SSRN: https://ssrn.com/abstract=3482189

Devon W. Carbado (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-825-3365 (Phone)
310-825-6023 (Fax)

Kimberle Crenshaw

Columbia Law School ( email )

435 West 116th Street
New York, NY 10025
United States

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