Two Types of Discrimination: The Familiar and the Forgotten
Published in California Law Review, v.86, no.2, 1998, pp. 315-361.
This essay argues that current Equal Protection doctrine fails to recognize an important conceptual distinction between two types of discrimination. Current doctrine is inadequate, according to the author, because it treats all discrimination cases as if they were instances of only one of these types. As a result, the Supreme Court mistreats discrimination cases of the forgotten variety. The author draws a distinction between proxy and non-proxy discrimination. Proxy discrimination uses the classification in the law as a means to reach a set of persons with a different, correlated trait. Non-proxy discrimination, by contrast, aims at the set defined by the classification itself. Because each has a distinct aim, each requires an examination of different moral issues. The author argues that current Equal Protection doctrine is suited for proxy discrimination only. Non-proxy cases are forced into an inappropriate doctrinal scheme with two unfortunate results. First, the Court focuses its attention on irrelevant issues and second, the Court fails to address the real and important issues that cases of non-proxy discrimination present. At the close of the Essay, the author sketches a new theory for non-proxy cases and demonstrates how this theory casts familiar issues like affirmative action and single-sex education in a new light.
86 California Law Review 315 (1998).