Harvesting New Conceptions of Equality: Opportunity, Results, and Neutrality

Cedric M. Powell, University of Louisville, Louis D. Brandeis School of Law

Abstract

This is a critical period in the Court’s history; there is a doctrinal shift from the Rehnquist Court’s colorblind constitutionalism to the Roberts Court’s post-racial universalism. The Fourteenth Amendment and Title VII have been inverted: under the Fourteenth Amendment, whites are the new discrete and insular minority to be protected from a result-oriented “racial” process; and, under Title VII, disparate impact is irrelevant in the absence of a “strong basis in evidence” to believe that there will be liability. In a very direct way, the Court’s race jurisprudence privileges reverse discrimination suits. To advance the critique of the Court’s doctrinal posture, this Article argues that the neutral rhetoric of opportunity pervades the Court’s analysis under the Fourteenth Amendment and Title VII because it is concerned with liberal individualism, not substantive equality. In Parents Involved, Brown is reinterpreted so that the central tenet of the Fourteenth Amendment, the anti-subjugation principle, is replaced with a right to individualized school choice which cannot be burdened by a voluntary attempt to maintain integrated schools. Likewise, in Ricci, Title VII is reconceptualized so that disparate treatment claims, advanced by reverse discrimination claimants, trump disparate impact claims unless there is additional proof (a “strong basis in evidence”) that a race conscious remedy “is necessary to avoid violating the disparate-impact provision.” The Court’s approach is ill-conceived because it does not take into account the multi-layered nature of structural inequality. The Article concludes with an argument that unifies the Fourteenth Amendment and Title VII in a common purpose—the eradication of caste-based oppression and structural inequality.