“You can judge me based on race, but not if it hurts enough people’s feelings”—OR: An Incorrect Interpretation of the Equal Protection Clause

July 15, 2014 | By PLF

PLF has long advocated a “colorblindness” approach to the Equal Protection Clause: Courts should review all race-based classifications under the same demanding level of scrutiny, regardless of the race of the person challenging the race-based action. The main rival to this view has been the “anti-subordination” approach, according to which “benign” classifications (i.e., classifications that are remedial and favor women and minorities) receive more indulgence from the courts than do other classifications. The colorblindness approach is, by all accounts, winning in the Supreme Court, as exemplified in the recent case of Fisher v. University of Texas at Austin.

But while these two approaches predominate in the courts, legal scholars have articulated several other alternatives. It is important to examine them because they could be either tools in the fight for liberty or obstacles that might have to be overcome in the future. One example is the “antibalkanization principle,” a term coined by Reva Siegel in From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases.

The antibalkanization principle asserts that courts should strike down race-based government action that creates social animosity, and should uphold race-based action that does not create social animosity. This principle would reconcile decisions that otherwise seem inconsistent, such as Regents of University of California v. Bakke, which struck down a quota system in university admissions, and Grutter v. Bollinger, which upheld a university admissions policy that took race into account more subtly. The antibalkanization principle could reconcile these cases because an openly race-based quota system arguably creates more social animosity than a more subtle race-based admissions system. Under the colorblindness approach, these cases just don’t fit. That is partly why Justice Thomas—one of the foremost proponents of the colorblindness approach—thinks Grutter should be overruled.

The antibalkanization principle is a bad interpretation of the Equal Protection Clause. The ultimate question it asks is: “Does the government action create an undue amount of social animosity?” But the answer to this question only tracks whether people think they are being treated equally, not whether they are being treated equally. On its face, the Equal Protection Clause is about “equal protection of the laws,” not “perceived equal protection of the laws.” So, the antibalkanization principle depends on a conception of equality according to which people are treated unequally if they think they being are treated unequally. This is a bad conception of equality for two reasons. First, it presupposes another conception of equality. Otherwise, people would have no reason to believe that they are being treated unequally. Second, it would imply that people can be treated unequally simply due to their own ignorance: False beliefs about how they—or others—are being treated would be sufficient to trigger the Equal Protection Clause.

In addition, the antibalkanization principle would have absurd results. First, for every government action that violates the Equal Protection Clause, there would be two permissible ways to remedy the situation: change the action, or convince enough people that the action is acceptable. For example, one way to solve the problem of affirmative action, on the antibalkanization principle, would be to convince enough people that affirmative action treats them equally, even if it actually does not. After all, this would solve the problem of social animosity towards affirmative action. To modify a statement by Chief Justice Roberts, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race—or convince everyone that discriminating on the basis of race is okay.”

Second, the antibalkanization principle is potentially self-defeating. Suppose it becomes a mainstream contender to the colorblindness approach. Predictably, those who benefit from the currently-entrenched colorblindness approach will vigorously reject antibalkanization, and those who would benefit from antibalkanization will vigorously support it. In short, the introduction of the antibalkanization principle itself has the potential to create a large amount of social animosity. So, the reasons that favor the adoption of the antibalkanization principle also favor its rejection.

Because the antibalkanization principle is a bad interpretation of the Equal Protection Clause and entails absurd results, advocates of liberty should reject it.

Stephen Stich is a law student at Yale University and a summer clerk at the Pacific Legal Foundation.