A Post–Race Equal Protection
Mario L. Barnes, Erwin Chemerinsky, and Trina Jones, A Post–Race Equal Protection, 98 Geo. L.J. 967 (2010).
Most vividly demonstrated in the 2008 election of the first African-American President of the United States, post-race is a term that has been widely used to characterize a belief in the declining significance of race in the United States. Post-racialists, then, believe that racial discrimination is rare and aberrant behavior as evidenced by America’s pronounced racial progress. One practical consequence of a commitment to post-racialism is the belief that governments - both state and federal - should not consider race in their decision making. One might imagine that the recent explosion in post-racial discourse also portends a revised understanding of equality, one that will result in a significant change in constitutional race jurisprudence. In this Essay, we first argue that this view ignores the history of the Court’s horribly-fraught race jurisprudence, portions of which have advanced post-race-like principles for nearly as long as the Justices have been considering the legal relevance of race. Efforts to minimize the importance race and deny racism, even as society clearly operated based upon a system of racial spoils, are seen in early cases such as the Civil Rights Cases and Plessy v. Ferguson.
While Brown v. Board of Education represented an overdue reprieve from the Court ignoring the consequences of racial categorization, since at least Regents of the University of California v. Bakke, the Court has steadily predicated equal protection analysis upon a commitment to colorblindness. In the more recent cases of Parents Involved and Ricci v. DeStefano, which respectively dealt with school integration and workplace disparate impact claims, the Court has treated the state consideration of race as exceedingly dangerous. Within the equality jurisprudence of the Roberts Court, it appears that the embrace of a post-racial ethic is nearly a fait accompli. We question, however, the propriety of adopting a fully realized commitment to post-racialism within equal protection jurisprudence. In our analysis, we first use statistical and normative evidence related to the disparate life experiences of people of color within the U.S. to suggest that America is not, in fact, post-race. Given, however, the Court’s insistence on ignoring statistical disparities across racial groups as occurring “because of” race, we then offer that moving forward equal protection analysis may need to turn on questions of distributive justice.