The Supreme Court's post-racial turn towards a zero-sum understanding of equality.

• Author: Norton, Helen

ABSTRACT

The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a "post-racial" society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker's concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to discriminate against others.

In recent decades, the Court's swing Justices expressly rejected claims of post-racial success even while moving towards an insistence that government remain color-blind in its actual treatment of individuals. Uncomfortable with the use of race-based classifications to further a governmental interest in addressing long-standing racial subordination, yet reluctant to dismiss the strength of that interest given its view of the continuing relevance of race to American life, a majority thus remained unwilling to treat as discriminatory government's attention to racial impact when choosing among various policy options.

Recent developments, however, signal the possibility that the Court has now embraced a new understanding of equality that may be triggered by an assumption of post-racial success in certain contexts. For example, the Court in Ricci v. DeStefano for the first time characterized a decision maker's attention to its practices' racially disparate impact as evidence of its discriminatory, and thus unlawful, intent under Title VII. Ricci's redefinition of culpable mental state for antidiscrimination purposes thus destabilizes the longstanding premise that the Court does not view decision makers' attention to race to address patterns of racial hierarchy as itself suspicious. Decades after holding that the Equal Protection Clause does not require government to reconsider its actions that disproportionately exclude people of color and women so long as those actions are not motivated by an intent to harm, the Court has now concluded that statutory antidiscrimination law--and perhaps the Equal Protection Clause as well--prohibits government from reconsidering these actions under certain circumstances. If applied in the constitutional setting, as concurring Justice Scalia predicted, such a zero-sum understanding of equality would treat a government decision maker's attention to racial and gender hierarchies when choosing among various policy options as inherently suspicious--and thus unconstitutional unless the government's action survives heightened scrutiny.

But such a turn is by no means inevitable. Indeed, Justice Kennedy's swing opinions in the Court's recent race discrimination decisions suggest the additional possibility that the Court has not yet determined in which direction, if any, it might turn in its understanding of equality. If so, opportunities remain for shaping that turn in ways that might avoid a collision between antidiscrimination commitments. These include revisiting the social meaning of measures that attend to the impact of various rules or standards on protected class members when choosing among available options that will then apply to all regardless of protected class status. Indeed, disparate impact provisions and similar efforts play an important role in ensuring that candidates--regardless of protected class status--are selected on actual merit, rather than on unexamined yet entrenched assumptions that replicate patterns of subordination at the expense of individual opportunity. Revisiting the social meaning of such efforts illustrates their win-win possibilities and challenges a zero-sum understanding of equality as ultimately impoverished.

TABLE OF CONTENTS INTRODUCTION I. TWO COMPETING VIEWS OF EQUALITY II. TWO COMPETING VIEWS OF RICCI III. THE COURT'S POTENTIAL TURN AND ITS IMPLICATIONS FOR ANTIDISCRIMINATION LAW A. A Post-Racial Turn? B. What's at Stake IV. EXPLORING OTHER PATHS A. Maybe the Court Hasn't Turned Very Hard B. Maybe the Court Hasn't Yet Decided Whether (And in What Direction) It's Turning V. AVOIDING A COLLISION BETWEEN ANTIDISCRIMINATION VALUES BY CHALLENGING A ZERO-SUM UNDERSTANDING OF EQUALITY CONCLUSION INTRODUCTION

Americans remain deeply divided over the question whether we have yet achieved a "post-racial" society in which race no longer matters in significant ways. (1) Although this is by no means a new debate, (2) it has gathered considerable intensity with the election of our first African American President. (3) How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law.

As just one example, characterizing contemporary America as successfully post-racial undermines the central premises of disparate impact theory: that racial disparities are sufficiently suspicious to demand justification and that those disparities that remain unjustified are morally and instrumentally unwise. To those who believe that race is still substantially relevant to the distribution of life opportunities in the United States, such attention is morally justified, if not compelled, as well as instrumentally desirable in that it leads to more effective outcomes, for example, in encouraging the reconsideration of traditional yet unexamined practices that may be poor predictors of successful job performance. (4) To those who believe that the United States has largely achieved post-racial success, however, such disparities trigger no great suspicion. (5) In other words, one's view on our post-racial status often drives what one identifies as troubling: attending to race or not attending to race.

This divide helps explain why some see no conflict at all in an antidiscrimination regime that bars not only intentional discrimination based on race (that is, disparate treatment) but also practices that impose unjustified racial disparities (that is, disparate impact). (6) Others, in contrast, believe that the two cannot be reconciled. Senator Jeff Sessions so concluded, for example, when criticizing then-Judge Sotomayor's vote that a city fire department did not violate Title VII when it discarded the results of a test that imposed a severe disparate impact against members of some racial and national origin groups,v Senator Sessions believed that the fire department, by considering disparate impact against some, intended to discriminate against others: "It seems to me that in Ricci, Judge Sotomayor's empathy for one group of firefighters turned out to be prejudice against the others. That is, of course, the logical flaw in the 'empathy standard.' Empathy for one party is always prejudice against another." (8) A post-racial discomfort with noticing and acting upon race supports such a zero-sum understanding of equality: if race no longer matters, a decision maker's concern for the disparities experienced by members of one racial group ("empathy") inevitably includes the intent to discriminate against others ("prejudice"). (9)

Further illustrating the significance of these divisions, the Supreme Court's swing Justices in recent decades found themselves uncomfortable with the use of race-based classifications to further a governmental interest in addressing long-standing racial subordination, yet unwilling to dismiss the strength of that interest given their view of the continuing relevance of race to American life. Justices O'Connor and Kennedy, in particular, remained reluctant to claim complete post-racial success and thus to characterize as inherently suspicious government's interest in addressing unjustified racial disparities. (10) While the Court increasingly moved towards an insistence that government remain color-blind in its actual treatment of individuals, a majority still expressly rejected postracial assumptions and thus remained unwilling to treat as discriminatory government's attention to racial impact when choosing among various policy options. Examples include efforts to reduce racial isolation by designating school attendance zones with an eye towards neighborhood demographics, (11) or to generate more diverse applicant pools by the targeted recruitment of workers of color. (12)

Recent developments, however, signal the possibility that the Court has adopted a new, zero-sum understanding of equality that may be triggered by an assumption of post-racial success in some contexts--an assumption that "empathy" for some groups is inevitably accompanied by "prejudice" against others. In Ricci v. DeStefano, for example, the Court for the first time characterized a public employer's attention to its practices' racially disparate impact as evidence of its discriminatory, and thus unlawful, intent. (13) This redefinition of culpable mental state for antidiscrimination purposes destabilizes the long-standing premise that a majority of the Court does not view a decision maker's attention to its practices' racially disparate impact as the sort of attention to race that threatens equality values. Decades after holding that the Equal Protection Clause does not require government to reconsider its actions that disproportionately exclude people of color and women so long as those actions are not motivated by an intent to harm, (14) the Court has now concluded that statutory antidiscrimination law--and perhaps the Equal Protection Clause as well--prohibits government from doing so under certain circumstances. Indeed, if applied in the constitutional setting, as concurring Justice Scalia predicted, (15) such an understanding of equality would treat a government decision maker's attention to racial and gender hierarchies as inherently suspicious--and thus unconstitutional unless the government's action can survive heightened scrutiny.

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