From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases
120 Yale L.J. 1278 (2011).
For decades, the Supreme Court has sharply divided in equal protection race discrimination cases. As commonly described, the Justices disagree about whether the Equal Protection Clause is properly interpreted through a colorblind anticlassification principle concerned with individualism or through an antisubordination principle concerned with inequalities in group status. This Article uncovers a third perspective on equal protection in the opinions of swing Justices who have voted to uphold and to restrict race conscious remedies because of concern about social divisiveness which, they believe, both extreme racial stratification and unconstrained racial remedies can engender. The Article terms this third perspective on equal protection concerned with threats to social cohesion the antibalkanization perspective.
Employing this triadic model of equal protection, the Article demonstrates how Justice Kennedy reasons from antibalkanization values in the recent cases of Parents Involved in Community Schools v. Seattle School District No. 1 and Ricci v. DeStefano. There Justice Kennedy affirms race-conscious facially neutral laws that promote equal opportunity (such as disparate impact claims in employment discrimination laws) so long as the enforcement of such laws does not make race salient in ways that affront dignity and threaten divisiveness.The Article’s triadic model identifies alternative directions equal protection doctrine might develop, and enables critique. A final section raises questions concerning the principle’s logic and application. Have those who interpret equal protection with attention to balkanization enforced the principle in an effective and evenhanded way? In this spirit, the Article concludes by suggesting that the antibalkanization principle could be applied to cases of concern to minority communities that do not involve challenges to civil rights laws (for example, government use of race in suspect apprehension).