From colorblindness to antibalkanization: an emerging ground of decision in race equality cases.

• Author: Siegel, Reva B.

INTRODUCTION I. THE EMERGENCE OF THE ANTIBALKANIZATION PRINCIPLE A. Mapping Equal Protection: The Anticlassification and Antisubordination Principles B. The Case Law: Two Principles and a Puzzle C. Race Moderates and Concerns of Balkanization D. The Antibalkanization Perspective II. PARENTS INVOLVED AND ANTIBALKANIZATION III. RICCI AND ANTIBALKANIZATION A. A Short Primer on the Law and Politics of Disparate Impact Law B. The Ricci Facts C. Ambiguities in Ricci's Holding: Colorblindness or Antibalkanization? D. Antibalkanization, Parents Involved, and Ricci E. The Antibalkanization Principle as the Basis for Disparate Impact Law IV. TOWARD "A MORE PERFECT UNION" A. Clarifying Antibalkanization's Normative Basis as an Equality Principle B. Evaluating Antibalkanization's Application in Particular Cases C. Colorblind and Race-Conscious Concerns About the Form of Civil Rights Interventions D. Transporting the Logic of Reverse Discrimination Cases to New Contexts CONCLUSION Whenever this issue of compensatory or preferential treatment for the Negro is raised, some of our friends recoil in horror. The Negro should be granted equality, they agree; but he should ask nothing more. On the surface, this appears reasonable, but it is not realistic. For it is obvious that if a man is entering the starting line in a race 300 years after another man, the first would have to perform some impossible feat in order to catch up with his fellow runner.

--Dr. Martin Luther King, Jr. (1964) (1)

We believe, like Dr. Martin Luther King, Jr. in a colorblind, post-racial society.

--Tea Party Petition to the NAACP (2010) (2)

The enduring hope is that race should not matter; the reality is that too often it does.

--Justice Anthony M. Kennedy (2007) (3)

INTRODUCTION

At the dawn of the Second Reconstruction, Martin Luther King, Jr., warned not only of the need to rectify centuries of discrimination but also of the resentment among whites that claims for racial repair provoked. To persuade white Americans of the justice of Negro claims, King invoked a simple but effective sports metaphor: a race was not fair if one runner left the starting line three hundred years before the other. The "starting line" story vividly put in issue the structural discrimination that results from unequal baselines and resources and so helped justify the Great Society and civil rights programs in the early decades of the Second Reconstruction. (4) But, as King appreciated, these programs prompted many whites to "recoil in horror" and provoked a bacldash that has fatefully shaped our constitutional politics and law. This Article explores the conflict as it plays out a half-century after King spoke, in the Supreme Court's recent decisions addressing race-conscious efforts to ensure integration in school districting and government employment-Parents Involved (5) and Ricci. (6) Racial conflict has helped define the composition of the Supreme Court and now is a matter not only of pragmatic but also of principled concern in its civil rights decisions.

Important questions of law are at stake in how we describe divisions on the Court in the race equality cases. Over the decades, observers of the Court have come to describe the dispute in binary terms. The Justices who vote against affirmative action and other race-conscious civil rights policies are said to reason from a colorblind anticlassification principle, premised on the belief that the Constitution protects individuals, not groups, and so bars all racial classifications, except as a remedy for specific wrongdoing. The Justices who vote to uphold affirmative action policies as constitutional are said to reason from an antisubordination principle that identifies racial stratification (rather than classification) as the wrong and endeavors to rectify the forms of group inequality that race-based and race-salient policies have caused. (7)

Describing disagreement in the race discrimination cases in this binary framework obscures the views of the Justices who, over the years, have voted to uphold and to limit affirmative action policies. This Article focuses on the views of Justices in the middle of Supreme Court conflicts over race equality and demonstrates that, in voting to uphold and to limit affirmative action policies, they reason from an emergent independent view more concerned with social cohesion than with colorblindness-a position that this Article analyzes as the "antibalkanization" perspective. Abstracting from the complex logic of the case law unfolding in history, I model division on the Court in a triadic framework that recognizes three voting blocs in the equal protection cases concerning race in the last several decades. I term "race conservatives" the Justices who strike down civil rights initiatives on the ground that law should be colorblind, "race progressives" the Justices who would allow (or require) government to remedy practices that entrench historic inequalities among racial groups, and "race moderates" the Justices who allow and limit civil rights initiatives in order to preserve social cohesion. Attending to the forms of reasoning that (1) differentiate race moderates from race conservatives and progressives and (2) link the opinions of moderates preserving and limiting civil rights initiatives, the Article asks whether we can read race moderates' opinions as interpreting equal protection in light of a mediating principle concerned with social cohesion, a concern analytically distinct from the value of individualism associated with colorblindness and the concern to remedy group inequality associated with antisubordination. (8)

The first project of this Article, then, is to show the emergence and development of the antibalkanization perspective in the opinions of race moderates--and thus to demonstrate how a triadic framework better describes historic divisions on the Court than a dyadic framework that depicts the swing Justices as ambivalently tacking between the views of race conservatives and race progressives. The Article's second project is to employ this triadic account of divisions in the race cases to make sense of the shape and trajectory of the Court's most recent cases. Attending to the antibalkanization values that led Justice Kennedy to write separately from conservatives and progressives in Parents Involved in turn illuminates these same concerns in the opinion Justice Kennedy authored for five members of the Court in Ricci, and so identifies a basis, grounded in the text of the decision and in several decades of constitutional history, for reading Ricci as vindicating antibalkanization--rather than colorblindness--values.

In analyzing the Court's past and current race cases, the Article's third aim is to explore how the framework that we have long used to map conflicts over colorblindness is evolving in new challenges to race-conscious, facially neutral civil rights initiatives. Race conservatives first invoked colorblindness in cases involving the constitutionality of "benign" racial classifications, where they insisted that the Constitution's injunction against classifying on the basis of race vindicated values of individualism. But Justice Scalia is now encouraging proponents of colorblindness to question the constitutionality of the disparate impact provisions of federal employment discrimination law; (9) others question the constitutionality of race-conscious but facially neutral practices that remedy effects of past discrimination and promote integration, such as race-conscious siting of school districts and admissions strategies that use facially neutral criteria to increase student diversity. (10) If race conservatives are beginning to attack such race-conscious, facially neutral initiatives as unconstitutional, it is not because the laws classify but because the laws violate colorblindness in some other way. These new constitutional claims throw into question the values colorblindness is serving (individual or group?) and diverge dramatically from antibalkanzation's concern with social cohesion. Antibalkanization understands that race-conscious, facially neutral interventions may promote social cohesion by promoting equal opportunity, as Justice Kennedy demonstrates in Parents Involved and Ricci when he discusses permissible forms of race-conscious, facially neutral action by administrators siting school districts and employers complying with the disparate impact provisions of federal employment discrimination law. In distinguishing among the colorblindness, antibalkanization, and antisubordination perspectives, the Article demonstrates that there are several distinct yet overlapping frameworks in which to analyze the constitutionality of race-conscious, facially neutral civil rights initiatives. The Article's analysis of disparate impact's constitutionality from this triadic perspective is especially timely as we mark the fortieth anniversary of the Court's decision in Griggs v. Duke Power Co., (11) which recognized disparate impact claims under federal employment discrimination law.

As this Article uncovers the antibalkanization perspective in the Court's cases, yet a fourth aim emerges: to undertake critical evaluation of the antibalkanization perspective-both as the Justices have applied it, and as it might be applied. Recognizing antibalkanization as a perspective distinct from anticlassification and antisubordination makes possible debate about what it means to vindicate this commitment in a plausible and principled way and thus allows even those who do not believe concerns about social cohesion are a proper basis for interpreting the Equal Protection Clause to enter into dialogue with those who do.

Critical conversation of this kind would begin by clarifying the content of the principle that is emergent in the Court's cases. Do antibalkanization opinions only impose a side constraint on the pursuit of equality (that is, government may pursue...