Respect, Individualism, and Colorblindness.

• Author: Eidelson, Benjamin

ARTICLE CONTENTS INTRODUCTION 1602 I. THE IDEA OF TREATING PEOPLE AS INDIVIDUALS 1610 A. Two Concepts of Treating People as Individuals 1612 B. Respect and Social Conventions 1617 C. The Supreme Court's Account of Treating People as Individuals 1623 1. Proxy Cases 1627 2. Non-Proxy Cases 1631 II. THE AUTONOMY ACCOUNT OF TREATING PEOPLE AS INDIVIDUALS 1635 A. Being an Individual and Being Autonomous 1636 B. How to Respect Someone as Autonomous 1639 C. What the Court Gets Wrong 1642 1. Racial Inferences Need Not Be Disrespectful 1642 2. Respect Can Require Racial Inferences 1645 3. Race-Based Differential Treatment Does Not Inherently Fail to Respect People as Individuals 1649 III. SOCIAL MEANING AND TREATING PEOPLE AS INDIVIDUALS 1650 A. Colorblindness as a Rule of Convention-Dependent Respect 1653 B. The Costs of Overbroad Respect Conventions 1654 C. How the Court Should Police Costly Respect Conventions 1659 1. Avoiding Entrenchment 1660 2. Aiding in Reform 1667 3. Fairness 1670 CONCLUSION 1674 INTRODUCTION

Nobody knows quite what the Supreme Court's equal-protection jurisprudence will look like in the era after Justice Kennedy, but those who favor integrative, race-conscious state action are understandably pessimistic. (1) Although Justice Kennedy could be a fierce critic of governmental consideration of race, he also resisted, at key moments, the "ail-too-unyielding" colorblindness embraced by those to his right. (2) Unless another member of the Court's conservative majority steps into that role, the proverbial dam will break. In doctrinal terms, more ways of accounting for race will be subjected to strict scrutiny and that scrutiny will more often prove to be "fatal in fact." (3) In practical terms, affirmative-action policies, disparate-impact prohibitions, and race-conscious decisions about school sites and attendance zones all appear under renewed threat. (4)

This moment of transition invites varied responses, but central among them should be a renewed effort to engage the case for colorblindness on its own philosophical terms. For decades, scholars have debated, and mainly criticized, the modern Court's "choice to privilege individualism as a core equal protection value." (5) But it now seems clear that, for better or worse, this basic outlook will continue to shape equal-protection law for the foreseeable future. And so it is particularly important now to ask not only what values ought, in principle, to orient equal-protection law but also whether the "individualistic" orientation embraced by the Court would justify its doubling down on colorblindness in the way that many expect.

This Article takes up the latter question and argues that the answer is "no." It advances that claim by offering a new analytical framework for understanding, and then evaluating, a central pillar in the standard case for colorblindness: the claim that race-based state action wrongfully fails to treat people as individuals. (6) That charge will be familiar to any reader of the Court's equal-protection cases; it has become a land of mantra in opinions condemning race-based state action. As the Court's colorblindness advocates have most often put it:

[A]t the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class. (7) According to this line of thought, race-based differential treatment is at odds with proper respect for a person's standing as a person, because it treats her as a mere instance of an unchosen racial type instead. Race-based state action, in other words, "causes 'fundamental injury' to the 'individual rights of a person'" (8) because it "treat[s] individuals as the product of their race," (9) fails to show "respect based on the unique personality each of us possesses," (10) and so infringes the '"personal right[]' to be treated with equal dignity and respect." (11)

This argument from respect for a person's individuality does vital work in justifying the anticlassification approach to race and equal protection. It roots that doctrine in the intuitive "[r]evulsion [that] starts up at the instant the state reduces a person to her race in deciding how to treat her." (12) At the same time, it responds to the need to "provide some explanation of why racial generalizations are so bad," something beyond the flat assertion that they are "intrinsically evil." (13) The core of that explanation, the Court has suggested, is that race-based state actions show a fundamental land of disrespect for each person's standing as an autonomous, self-defining individual. (14)

Yet the argument linking colorblindness to respect for people's individuality remains highly opaque. Modern equal-protection law may have "forced lawyers to become philosophers," (15) but it has not forced them to show their philosophical work. Most notably, the Court has made hardly any effort to explain how race-based state action fails to treat or respect people as individuals--or, for that matter, what treating someone "as an individual" even means. Meanwhile, dissenters from colorblindness have long criticized it as too individualistic, too inattentive to questions of group hierarchy and status. (16) But they, too, have often given short shrift to the same, more basic question: what does treating someone respectfully as an individual involve in the first place, and when and why might race-based differential treatment be (or be thought to be) at odds with it?

By squarely taclding that foundational question, I hope to make the principled objection to race-based state action tractable to analysis and internal critique. And in so doing, I also hope to surface a new set of questions--questions internal to the Court majority's normative commitments--that should be of interest to readers who approach equal-protection law from a variety of different perspectives. Put another way, by opening up the philosophical black box of the Court's avowed individualism, this Article aims to advance a debate that has long pitted a conservative Court majority that views colorblindness as a moral imperative, on the one hand, against a chorus of academic critics who reject the "individualistic" premises of the Court's approach to equality altogether, on the other.

To break that impasse, the Article first seeks to open up a logical space between two distinct ideas that I have already introduced in passing: the principle that people should be treated as individuals, and the colorblind (or "anticlassification") conception of equal protection. The key to opening that space is talcing the asserted obligation to "treat people as individuals" seriously enough to recognize it as one member of a broader family of moral norms. Like the obligation to treat people as equals (emphasized by Ronald Dworkin), (17) or the obligation to treat people as ends in themselves (famously posited by Immanuel Kant), (18) claims of an obligation to treat people as individuals assert that one should act toward a person only in ways that account for an important facet of her personhood--in this instance, her individuality. So understood, "treating people as individuals" is not just a slogan for, or otherwise synonymous with, colorblindness; rather, it is a recognizable moral norm with distinct, if uncertain, content. And once we see the operative norm in this broader perspective, we can also see that a commitment to treating people as individuals does not necessarily require inattention to race, as even opponents of colorblindness have sometimes supposed. Rather, whether colorblindness draws support from a moral commitment to individualism depends on what respect for a person's individuality, as a general matter, involves--a deep question that the Court has never squarely posed, let alone answered.

The second project of the Article is thus to offer an affirmative account of what treating people respectfully as individuals does require, both in general and in the distinctive context of racial classifications and inferences. In offering such an account, I do not claim that whether some practice treats people as individuals ought to be a predominant concern of equal-protection law. Rather, I set out to investigate what plausibly follows if the demands of equal protection are interpreted through the lens of an imperative to treat or respect people as individuals, as the Court's proponents of colorblindness have urged. (19) My answer draws on what I have elsewhere called "the autonomy account" of the moral obligation to treat people as individuals, which itself builds on the rich philosophical literature on autonomy. (20) The basic picture is simple. Because a person's individuality takes its moral significance from her autonomy--her capacity to shape her own life--treating or respecting a person as an individual is best understood to require treating her as autonomous. Due recognition of someone's autonomy, in turn, requires paying attention to relevant evidence of her self-defining choices. But it does not require eschewing relevant information, because there is no inconsistency between recognizing someone as autonomous and making fully informed, suitably humble predictions and inferences about her. Thus, respect for people as autonomous individuals sometimes may require including certain facts in one's judgments, but it never requires excluding true and relevant facts from consideration.

This account taps the central intuition underlying the moral argument for colorblindness--the sense that "it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own... essential qualities" (21)--but it does not vindicate claims that a blanket ban on race-consciousness should follow. For one thing, policies that attend both to a person's race and to her self-defining choices--such as the university affirmative-action...