“[R]ights are only as strong as the so-called natural . . . identities by which they are upheld, and ultimately as strong or weak as the socially constructed legal definitions assigned to those natural identities.”
As presently constructed, equal protection doctrine is an identity-based jurisprudence.
The degree of protection afforded by the Equal Protection Clause often turns on the identity trait—such as race or gender—implicated by an alleged act of discrimination.
In those instances, the identity trait stands in to represent a set of assumptions about the group it describes: Because that group has been subjected to discrimination in the past or politically marginalized, or because its identifying characteristic is irrelevant to its members’ ability to contribute to or participate in society, the law is particularly sensitive to state action that targets such groups.
There is nothing in the Equal Protection Clause itself that suggests the need to use identity as a filter to analyze whether the law is being applied equally.
Yet most of the equal protection literature does not question this basic premise.
The problem with a model that subsumes a substantive inquiry regarding equality within the notion of identity is that it risks the distortion of identity and also the possibility that the proxy becomes an end in and of itself. In other words, the purpose identity is meant to serve may become lost in the idea that any classification based on identity is undesirable, regardless of the nature of the “discrimination” at issue. Thus identity may be—and arguably has been—redeployed to satisfy different ends than originally intended:
transitioning from doctrinal shorthand for marginalization to a superficial marker that is readily associated with inequality regardless of the context.
This Essay suggests that, within equal protection doctrine, identity is important not as an end within itself, but because of what it represents.
In other words, the law is more skeptical of discrimination based on race or gender not because of some abstract set of beliefs about the category, but because of the role it has played in obstructing access to the political process and in denying state-provided benefits and protections. Discrimination on the basis of race or gender is perceived as more pernicious—yet a description of the category itself, without any further elaboration on its relation to others or to society, does not tell us why. Nor does the prohibition of discrimination on the basis of identity necessarily ensure that the most malicious forms of discrimination will be eradicated.
If one is particularly skeptical of state laws or actions targeting individuals on the basis of their race or gender, it very well may be because those categories have been constructed as subordinate and marginalized in their ability to counteract such subordination. Concerns regarding subordination are structural and focused on the forces that act upon individuals; these forces play a role in the very creation of identity itself.
Thus, in using identity as its organizing principle, law is confined to operating within the very structures that subordinate and is similarly confined to focusing on the product rather than the cause of inequality.
The logic of the current doctrinal framework—which I refer to herein as the “categorical model,” due to its reliance on identity categories—and its formula for identifying suspect classifications assumes that by protecting against actions based on identity, larger structural concerns such as historical subordination and political marginalization
will be addressed. However, the concerns presented by identity are distinct, and sometimes at odds with
—or a product of
—the structural. Moreover, as described in this Essay, there are a number of other negative effects, both within and outside equal protection doctrine, that follow from using identity as a proxy to represent or vindicate other substantive concerns.
One way to reclaim the meaning of equal protection as it relates to equality of status and destabilizing social hierarchies,
therefore, may be to supplant identity with the substantive goals it is intended to vindicate. Under this approach, the primary inquiry is not whether all identity groups are treated the same, but whether the alleged discrimination affects the claimants in a way that exacerbates their subordination. In other words, the goal is not to eliminate all differential treatment, but to destabilize status hierarchies and effectively counter forces giving rise to subordination.
The switch to such a model—which I refer to as herein as the “value-based” approach—need not present a hard break with the current doctrinal framework. This is in part because some of the criteria used to define suspect classifications—past historical discrimination and political powerlessness—reflect these values. While there may be other factors indicative of subordination (and which could therefore play a part in the below inquiry), this Essay focuses on these factors because of their recognition and familiarity under current doctrine,
and because they present a metric by which courts may assess subordination. In contrast, other factors currently used by the doctrine to single out certain identity categories for heightened scrutiny, such as immutability and trait irrelevance, are less relevant under the value-based approach. This is because those factors are focused on the trait itself and not on the structural forces that create inequality.
The fact that a trait is irrelevant to the context at hand may suggest underlying prejudice or bias; however, there are many traits that might be irrelevant to the task at hand and yet not signify a deeper pattern of subordination. Like any other law, a law drawing a distinction on the basis of an irrelevant trait—for example, physical attractiveness or one’s number of tattoos—would be subjected to rational basis review. What is at stake in the choice between the categorical model and the value-based model is not whether the law is constitutional or not—if discrimination on the basis of an irrelevant trait is irrational, it will be unconstitutional under any framework—but whether a reviewing court should apply heightened scrutiny.
To illustrate, one might think of contemporary equal protection doctrine as consisting of a two-step analysis: First, did the government discriminate against the plaintiff based on his or her inclusion in X category (where X category serves as a proxy for certain equal protection values); and second, applying the level of scrutiny attached to X category, was the government action justified? Rather than focusing the inquiry on categorical judgments, a value-based approach might supplant the first question with the following: Does the challenged government action deny access to state-provided benefits or protection in ways that perpetuate or exacerbate historical patterns of discrimination against a particular group (as defined by the plaintiff or plaintiffs)? Alternatively, does the challenged government action create or maintain barriers to political access for a particular group? Where the court can answer one of these questions in the affirmative, heightened scrutiny should apply.
So, in the context of laws requiring potential voters to present identification before casting a vote, for example, the primary inquiry would be not whether the law was racially motivated (which is difficult to prove), or even whether the law has a disparate racial impact,
but rather whether the law results in political exclusion or obstructs access to the political process. In the case of a pregnant woman who claims she has been wrongly terminated from her government job, the application of heightened scrutiny would turn not on her ability to prove that she was terminated as a result of her gender, but on whether her termination furthered or worsened patterns of discrimination against pregnant women. Admittedly, the greatest impact of such a shift would be in the context of affirmative action, where mere differential treatment on the basis of race or gender would no longer be sufficient to sustain an equal protection claim.
To provide a recent example, a group titled Students for Fair Admissions filed a complaint in federal district court last November claiming that Harvard College’s undergraduate admissions policy discriminates against Asian Americans.
This lawsuit could be seen as merely another iteration of familiar debates regarding affirmative action, pitting those who favor the use of racial classifications against those who advance a colorblind approach.
Given its posture, however, the case raises interesting questions about how we think about other minority-race plaintiffs—not just white plaintiffs—alleging discrimination in the affirmative action context. The current approach used to analyze such a claim would suggest that the fates of Asian Americans and African Americans—and perhaps even whites—in this context are inextricably linked; racial preferences are either permissible, or they are not. In contrast, the model suggested herein offers a substantive way to articulate the difference between the experiences of different applicants of color and therefore justify a policy that may treat them distinctively.
The value-based approach clearly runs counter to anticlassification theory—the dominant approach under current equal protection jurisprudence—which discourages or disfavors the use of identity-based classifications across all contexts.
In that sense, the value-based approach shares antisubordination theory’s normative view that not all uses of identity-based classifications are undesirable; it is only those uses of identity that serve to subordinate or oppress a particular group that are rendered unconstitutional.
Where the value-based model diverges from antisubordination theory, however, is in the belief that identity is an appropriate or the most effective vehicle by which to reach the normative ends that antisubordination theory aims to achieve. Although the use of identity need not inevitably lead one to an anticlassification approach, it is more easily manipulated toward those ends than a model that builds certain normative assumptions or substantive inquiries into the analysis itself. Moreover, it is more difficult to make arguments advancing colorblindness—the idea that race is irrelevant—in the context of a model that does not turn on identity, or on color.
Perhaps more important—and the greatest distinction between the model suggested herein and other theories that have dominated equal protection debates—are the discursive benefits to be gained by such an approach. By its very essence, the value-based model precludes superficial analysis of discrimination. And, regardless of outcome, the rhetoric used to discuss discrimination matters. It is a very different endeavor to talk about discrimination in terms of broad identity categories, and whether or not we should tolerate distinctions made on the basis of such categories, than it is to engage in a substantive discussion about how the alleged claim of discrimination impacts access for the group at issue and how it may perpetuate earlier denials of access.
By suggesting a new approach to equal protection, this Essay does not purport to offer a silver-bullet solution to the various problems plaguing equal protection today, nor does it always claim to be outcome determinative. Rather, it hopes to engage readers in a thought experiment to explore what equal protection might look like if it were structured to reflect the values identity is intended to serve without explicitly invoking identity categories as a way to delineate permissible and impermissible forms of discrimination.
In Part I, the Essay describes both the doctrinal and extralegal consequences that flow from identity-as-proxy jurisprudence. Part II describes how equal protection analysis would change if it were guided not by categories of identity, but instead by substantive equal protection values underlying the current use of identity. Part III addresses the advantages and possible critiques of an approach to equal protection that no longer uses identity as a proxy for such values.
I. Identity as Proxy
Under the identity-as-proxy paradigm of equal protection, the level of scrutiny applied to alleged claims of discrimination turns on the identity category at issue.
The Court has concluded that some categories, like race, are deserving of the highest level of scrutiny,
meaning that the government bears a heavier burden to justify classifications made on the basis of race. In Bakke, Justice Powell suggested that the differential treatment of race is sui generis,
perhaps attributable to the fact that the Reconstruction Amendments were intended to “provide federal protection for newly ‘freed’ [African] Americans.”
Other identity categories, such as gender, are entitled to intermediate scrutiny,
and all others are subject to rational basis review.
A general premise of the equal protection hierarchy, and a significant part of the rationale for treating these categories differently, is that certain classifications are less likely to be rooted in any supportable basis and thus more likely to signal prejudice or bias.
The greater the likelihood that a classification is rooted in prejudice or stereotype, the stronger justification the Court will demand from the government to use such classifications.
Another rationale, grounded in Carolene Products’s footnote four,
is that certain groups have historically been rendered politically powerless and thus require “extraordinary protection from the majoritarian political process.”
By suggesting a focus on the treatment of “discrete and insular minorities,” the Carolene Products footnote also provided support for an equal protection jurisprudence driven by suspect classifications,
which are typically organized around a defining identity trait.
Through its cases, the Court later identified factors used to define suspect classes, including a history of past discrimination, political powerlessness, immutability, and relevance of the group’s defining trait to the group’s ability to contribute to or participate in society.
The irony of this framework, as others have pointed out, is the Court’s failure to recognize that by constructing doctrine around identity—and determining when these factors justify the designation of suspect classification—it has played an important role in defining identity itself.
Equal protection’s reliance on identity is understandable in light of its origins. The institution of slavery, from which the Reconstruction Amendments arose, and more modern legal regimes enforcing or permitting overt discrimination, used the law to explicitly oppress individuals sharing certain identity traits. These regimes gave rise to group-based identities, which, in turn, gave rise to group-based social movements.
The group-based exclusionary nature of the law solidified the social identities of these movements.
Given the centrality of identity to both legal and social frameworks, it was logical for those aiming to change the law to focus on altering the perception of certain identities
and, later, on rendering identity an illegitimate basis for legal differentiation.
In today’s world, the benefits of using identity as a framing device for equal protection jurisprudence are less clear.
While a focus on identity may be perceived by some as “necessary in order for a legally disfavored group to make the transition to formal legal equality,”
it has less utility in a regime in which covert and structural discrimination are just as, if not more, pervasive as more overt forms of discrimination.
As Susan Sturm has observed, “[s]moking guns—the sign on the door that ‘Irish need not apply’ or the rejection explained by the comment that ‘this is no job for a woman’—are largely things of the past.”
Where discrimination is not overt, it is often not immediately apparent that identity is at issue;
under such circumstances, using identity as the trigger for heightened scrutiny may not serve as the most effective tool to recognize and provide redress for discrimination.
This Part explores the consequences of equal protection doctrine’s current use of identity. Section I.A discusses how equal protection’s use of identity as proxy facilitates and supports doctrinal interpretations that frustrate antisubordination goals and renders the doctrine unable to account for the varied experiences of identity subgroups. Section I.B reveals the broader sphere of problems caused by the use of identity as proxy, including the negative effects it may have on individual identity and on the relationships between identity groups.
A. Doctrinal Consequences of the Categorical Model
Although not always directly linked to identity, certain doctrinal developments are facilitated by equal protection doctrine’s use of identity as proxy. Under the current model of equal protection, referred to as the categorical model herein, government action that targets certain categorical identities, such as race or gender, is viewed with heightened scrutiny. One underlying theory as to why certain identity groups should receive heightened scrutiny, grounded in Carolene Products’s footnote four and advocated by theorists like John Hart Ely,
stems from concern about the group’s ability to protect itself using the normal political processes or that the group is otherwise disadvantaged by virtue of its status as a “discrete and insular minority.”
Thus, the law should give special solicitude to distinctions made on the basis of the group’s defining identity trait.
Applying that judgment to the group as a whole allows the category to serve as a type of doctrinal shorthand: By avoiding discrimination on the basis of the category, the law can (at least in theory) ensure that individuals within the group will not be further disadvantaged and that all will have equal access to state-provided benefits and protections.
One problem with this logic, however, is that there are variations within each category, and subcategories have varying levels of access—in large part due to oppression by other subcategories. For example, within the broad category of “race,” blacks and whites have historically experienced different levels of access and, within the former category, those with lighter skin color or recently immigrated parents have had a different experience from those with darker skin and those descended more directly from slave ancestors.
White women and women of color experience gender discrimination differently and cannot be encompassed within one singular definition of what it means to be a woman.
Thus, allowing the category as a whole to stand in for the values it is intended to protect may therefore provide such protection only sporadically. It also distances equal protection analysis from the normative values that animate it.
One can see, then, how equal protection’s focus on identity facilitates the elision of exclusionary discrimination and discrimination meant to foster inclusion or remedy past exclusion. In cases like Adarand Constructors, Inc. v. Pena
and Regents of the University of California v. Bakke,
the Supreme Court made clear that it would not distinguish between “invidious” and “benign” discrimination.
In other words, the Court would treat any form of identity-based discrimination with the same level of scrutiny, regardless of its purpose or context (i.e., de jure segregation or affirmative action). If the triggering factor for equal protection analysis is discrimination on the basis of identity, it can logically follow—and indeed has, under the Court’s jurisprudence—that the simplest way to remedy such discrimination is to avoid any discrimination on the basis of identity.
Under such an interpretation, the nature of the discrimination at issue is necessarily secondary and can more easily be rendered irrelevant.
Another consequence of the categorical model is that identity categories not yet recognized as suspect may attempt to analogize their experience to those categories, or classes, that have already achieved suspect classification status.
As Serena Mayeri discusses in detail in Reasoning from Race: Feminism, Law, and the Civil Rights Revolution, while the use of analogy can contribute to effective coalition building, it can also lead to conflict and to the appropriation of doctrinal concepts from one category to another, including those that may have negative ramifications.
For example, Mayeri describes how the feminist movement attempted to build on analogies to the civil rights movement and the fight for racial equality.
As a result, as colorblindness began to dominate notions of racial equality, analogic reasoning dictated that differences between men and women must be rendered irrelevant to achieve equality, and affirmative measures would be precluded in the context of gender as well as race.
Thus, analogies to race could be blamed for sexblindness and the dominance of formal equality as well as for the law’s inability to adequately recognize the unique experiences of women of color.
What makes identity appealing as a doctrinal sorting device is its ability to serve as shorthand for a set of values or ideals;
to do so effectively, however, it must be defined in a monolithic way. The simplification of identity for purposes of doctrinal utilization often leads to essentialism: “the notion that a unitary, ‘essential’ women’s experience can be isolated and described independently of race, class, sexual orientation, and other realities of experience.”
As explained by Angela Harris in her seminal article, Race and Essentialism in Feminist Legal Theory, essentialism is attractive for several reasons.
First, it is intellectually easy because it relies on dominant narratives and therefore requires little work to explore and highlight other experiences.
Second, by fostering a narrative that is shared by all, essentialism can provide a sense of safety and belonging and reduce any sense of conflict.
Last, it can provide the basis for presenting a unified front against a mutual oppressor, facilitating a more powerful political or social movement.
While these aspects of essentialism make it a tempting option, Harris also articulates its dangers and ultimately advocates against its use. As Harris explains, essentialism silences those “who have traditionally been kept from speaking, or who have been ignored when they spoke.”
In relying on a dominant narrative, essentialism “relegate[s] to the footnotes” contradictory or more nuanced examples and requires that all experiences be evaluated against one “true” norm.
Harris explains that essentialism can also give way to unconscious racism; in a racist society, the dominant storytellers construct the story such that they are prominently featured and others are not.
Essentialism is not entirely avoidable in any model that utilizes identity, whether used as proxy (as in the categorical model) or as a more individualized basis for a claim (as in the value-based model).
The primary difference between the categorical model and the value-based model with respect to essentialism is who is doing the essentializing, or where the power to essentialize is based. Under the current model, it is the courts that possess the power to define the relevant identity categories and who will fall within or outside of those categories; this is because identity is an organizing principle of the law that courts design and apply. In contrast, under the value-based model, the onus is on the plaintiffs to claim that they have been discriminated against for a particular reason, which may relate to their identity.
In doing so, however, they have an opportunity to articulate and define that identity for purposes of the legal analysis and thus retain more power to construct their own narrative.
The law’s current tendency to focus on one dominant narrative,
to the exclusion of others, may result in under or overprotection. As Suzanne Goldberg has observed, the use of essentialism in litigation may “undermine the ultimate aim of protecting from discrimination the full range of expression associated with a trait.”
Assume that an individual who does not conform to the dominant narrative wishes to make a claim of discrimination based on the same or a similar trait. If that individual views and experiences the world differently, even though she possesses the trait on which the dominant narrative is based, the relief fashioned on the basis of the dominant narrative may be an imperfect fit for the harm she has experienced as a result of discrimination.
For example, if the dominant narrative emerging from gender discrimination doctrine is that women want to be treated like men, the remedy (formal equality) may not be adequate for those who want their differences to be embraced or the specific nature of their oppression to be recognized. Gender discrimination doctrine based on a male–female binary will not always account for the experience of someone who is transgender;
nor will it always account for the experience of someone who is pregnant (as evidenced by the tension within gender discrimination doctrine),
or for a male plaintiff who does not conform to traditional notions of masculinity.
On the other hand, racial discrimination doctrine assumes a commonality of experience among racial minorities and, as currently constructed, does not distinguish between those races that have historically enjoyed higher levels of privilege (whites) and those who historically have been subordinated (blacks).
Angela Harris has argued that we must “make our categories explicitly tentative, relational, and unstable” in order to avoid the harms of essentialism.
Yet, this recognition of identity’s fluidity
may be incompatible with the nature of doctrine, which requires a more fixed notion of identity in order to form a coherent, administrable body of legal rules.
Critical race scholars like Kimberlé Crenshaw have emphasized that those who reside at the intersection of various identities have experiences that may differ not only from majority norms but also from other minority experiences.
For example, she explains:
Sex and race discrimination have come to be defined in terms of the experiences of those who are privileged but for their racial or sexual characteristics. Put differently, the paradigm of sex discrimination tends to be based on the experiences of white women; the model of race discrimination tends to be based on the experiences of the most privileged Blacks.
In that sense, essentialism may further prevent other unique forms of oppression—for example, that experienced by black women—from being recognized and addressed.
The existing categorical model cannot effectively address intersectionality because a framework that analyzes discrimination as occurring along a single categorical axis is “predicated on a discrete set of experiences that often does not accurately reflect the interaction of [multiple categories, such as] race and gender.”
For example, Crenshaw discusses the dilemma posed by a group of black women who wish to challenge their discrimination as black women: Antidiscrimination law cannot conceptualize the claim as one based on gender, because other women (white women) were not discriminated against, or based on race, because other blacks (black men) were not discriminated against.
In the context of equal protection, a similar predicament exists: Should a black woman wish to claim the denial of equal protection based on her existence as a black woman, it is unclear whether such a claim would or should be treated with intermediate scrutiny (applied to gender) or strict scrutiny (applied to race). The requirement that she prove that similarly situated individuals have been treated differently likewise poses a dilemma: If the uniqueness of her experience is adequately recognized, there may be no similarly situated individuals against whom she can contrast her own treatment to vindicate her claim.
A simplified conception of identity treats all members of a given group the same and, perhaps just as troubling, does not allow for distinctions among different groups. As discussed above, in the eyes of the current Court, discrimination against someone on the basis of her whiteness is equivalent to discrimination against someone on account of his blackness. This quality of equal protection doctrine means that it can be co-opted, either intentionally or unwittingly, by a particular group to change the nature of equal protection or to redefine who is included and who is excluded. For example, many of the race discrimination cases decided by the Supreme Court in recent years have involved successful claims by white plaintiffs that they have been discriminated against on the basis of race.
This Essay does not suggest that equal protection’s reliance on identity as proxy is the sole driver of the doctrinal manifestations described above or that one cannot imagine a jurisprudence in which identity functions in a different capacity; yet, it is important to recognize the ways in which the identity-as-proxy model facilitates and supports these distinctions. For the same reasons an identity-based framework may be an effective tool for attacking facial discrimination, it may be less able to draw distinctions among different types of discrimination or to provide redress in situations in which discrimination is not overtly identity-based.
B. Individual and Societal Effects of the Categorical Model
In addition to the effects observed within the doctrinal structure, there are extralegal consequences—both individual and societal—that flow from identity-as-proxy jurisprudence. Equal protection’s appropriation of identity as a means for vindicating a particular set of values not only impacts the law’s effectiveness in achieving the normative goals underlying equal protection, but it may also force individuals to compromise their own sense of identity and further marginalize certain sub-identity groups.
The existence and application of categories require definition of the categories and, thus, in this context, require definition of identity. The application of heightened scrutiny to race and gender classifications—and perhaps eventually to those based on sexual orientation—requires making judgments, either explicit or implicit, about who falls within (and outside of) these categories.
Hence, there is a risk that in carving out protection for some, the Court will further marginalize others. For example, in the context of cases like Romer v. Evans and Obergefell v. Hodges, which have been heralded as victories for LGBT advocates, the Court’s focus remained specifically on “gays and lesbians,” excluding from the relevant definition other sexual orientation minorities, like bisexuals.
Defining identity categories in the context of the law is inherently exclusionary, as the law attempts to circumscribe those who should rightly benefit from certain legal protections and those who should not. The need to define identity categories may also force the simplification of an otherwise complex understanding of identity in order to provide facile descriptions that can be used within doctrinal frameworks.
Law strives for clear rules that can then be applied to adjudicate claims. The very nature of identity, however, defies such clarity, particularly for those whose identities rest at the intersection or overlap of established identity categories, or fall outside the bounds of such categories altogether.
To the extent that law and society are co-constitutive forces in constructing the meaning and salience of identity,
forcing identity to play such a role in the context of the law may stunt its development outside of that context. Subsequently, the use of identity as a legal device may also hinder the effective use of identity as an inclusionary device in the context of social and political movements.
Sonu Bedi has emphasized the particularly problematic nature of basing not just law (as promulgated by legislatures) but also the Supreme Court’s interpretation of the Constitution on identity.
By framing the constitutional analysis in terms of identity, the Court incorporates these issues into the highest level of the law, thereby dispersing and cementing these notions throughout all levels of the law.
The constant evolution of socially constructed categories complicates the need to define identity, which necessarily underlies an identity-based jurisprudence.
In her book, Not Only for Myself, Martha Minow describes the difficulties that may arise from “contemporary challenges to the basic coherence of group definitions”:
The gaps and conflicts among self-identification, internal group membership practices, and external, oppressive assignments have given rise to poignant and persistent narratives of personal and political pain and struggle. These gaps and conflicts also expose the inconsistent meanings of group membership. The persistent failure of group-based categories to yield consistent applications hints at the defects in their boundaries, their origins, their applications, and their ultimate meaningfulness.
In the case of a multiracial individual, for example, the individual must negotiate her self-categorization against the categories to which other actors assign her. While some multiracials choose to align themselves with a single race (“monoracial”), others choose to identity as biracial or multiracial.
Yet other multiracials will choose to identify differently depending on the context (e.g., they may identify racially one way at home and another at school), and some view themselves as occupying a space where racial categories do not apply.
At the time Carolene Products was written, individuals had little say regarding their racial categorization for government purposes.
Although the current regime now relies on self-identification as the means for racial categorization, it does so by offering an array of predetermined racial categories from which the individual may choose.
This is necessary, in part, because the government still relies on identity as a mechanism for measuring impact and distributing benefits.
Tension may arise when an individual’s self-identification does not align with the way she is classified externally or when she is forced to identify herself in a manner other than that which she would naturally choose in order to benefit from legal protections.
For example, individuals may feel—in part because the law encourages such behavior—that they have to conform to the dominant social understanding of what it means to be a member of a given identity group in order to secure legal protection as a recognized member of that group.
Moreover, as I have explained in more detail elsewhere, social science research has demonstrated that being forced to identify in a way that does not align with one’s own self-conception may cause psychological and emotional harm.
For biracial black-white individuals, for example, social science studies have demonstrated that being forced to adopt a monoracial identity can lead to guilt, lowered self-esteem, and decreased motivation while the ability to assume a biracial identity may lead to a more positive sense of identity and greater self-confidence.
As suggested by the Windsor example, boundary issues also manifest in the category of gender. More explicit categorization questions arise for transgender individuals. For example, should a transgender woman who was assigned male at birth and who has not received gender-affirming surgery be considered a man or a woman under equal protection’s ostensibly binary approach? Although there has been some positive evolution of the law toward a model that is less focused on requiring self-identification as male or female,
existing equal protection cases have often required transgender individuals to identify as a particular sex in order to argue that discrimination was based on deviance from the stereotypes associated with that sex.
Dean Spade has explained that the characteristics used to determine categorization on the basis of gender and the way in which those “categories are defined and applied create vectors of vulnerability and security.”
Those who are left out or excluded from benefits (either explicitly or because their population goes unaccounted for in tracking need among various populations) are left vulnerable—“casualties” of a framework that insists on using monolithic categories of identity.
Reliance on a monolithic notion of identity—and the uniform application of one level of scrutiny to every sub-identity group within a larger identity group—also makes it difficult for the doctrine to recognize variant experiences and to justify differential treatment within a given group.
For example, as a number of authors have recognized in the context of educational policy,
the experiences of blacks who are descendants of American slaves and those who have a mixed-race background or who are recent immigrants can differ significantly; this in turn can impact the effectiveness of affirmative action programs. Kevin Brown and Jeannine Bell suggest that treating all of these groups as black, without further categorization, undermines the original goals of affirmative action and leads to the underrepresentation “of blacks whose predominate ancestry is traceable to the historical oppression in the United States.”
Therefore, they contend there is good reason, in the context of affirmative action, to “classify blacks based on their racial/ethnic ancestry, with a focus on attenuating the effects of racial subordination in the United States.”
Similarly, the fact that Asian Americans are often perceived in the same context to be a group without any need for heightened protection may create unexpected harms for Asian Americans who do not conform to the dominant, model-minority narrative.
Yet it is hard to see how the current doctrinal framework would justify differential treatment in either example, given its lack of nuance when it comes to categories like race.
Disregard for differences beyond the more superficial characteristics of identity lead to other negative consequences for the most oppressed. For example, Devon Carbado has explained that the focus on group representation without regard for intragroup differences allows admissions officials to fulfill their commitment to diversity by choosing to admit more palatable “types” of African Americans.
In doing so, they create or sustain hierarchies within racial groups.
Similarly, Nancy Leong has written of the commodification risks that come from focusing on “thin” conceptions of diversity—those that reduce the importance of race to mere presence, rather than those that would create substantive change.
This, too, is a byproduct of placing undue importance on identity, which now represents a group of surface-level traits rather than a specific set of experiences.
Basing legal protections on identity may create certain undesirable implications regarding the nature of the group or its relationship to other groups. As an illustrative example, Georgia Warnke has argued that by singling out women in attempting to address pregnancy-related discrimination, “the law suggests that women require special rights and accommodations in order to hold jobs others can hold without them. Hiring them can seem likely to employers to be more expensive than hiring others and, worse, women can seem to be constitutionally unsuited to responsible working lives.”
Therefore, Warnke suggests, a preferable way to accommodate the relationship between pregnancy and employment is to “regard reproduction and child-rearing in ways that are neutral with regard to identities as men or women.”
In other words, reproduction and child-rearing should not be viewed as integral to, or inseparable from, female identity.
Yet, under the current equal protection framework, pregnancy discrimination either equates with gender discrimination (the relevant identity category) or, as the Court held in Geduldig v. Aiello, it does not.
This may seem like an unsatisfactory result to many, given the reality that the burdens of pregnancy so clearly fall on women; but, from another perspective, the opposite conclusion may be equally troublesome. Associating pregnancy with sex or gender may imply that motherhood is an essential characteristic of womanhood and thus devalue those women who choose not to have children.
In a related vein, Wendy Brown has argued that “[i]n its emergence as a protest against marginalization or subordination, politicized identity . . . becomes attached to its own exclusion . . . because it is premised on this exclusion for its very existence as identity.”
In other words, when identity is married to exclusion as a categorical matter, invocation of identity automatically reifies the narrative of oppression.
And to attain suspect class status under the Equal Protection Clause, therefore, groups must characterize themselves as victims.
Such a frame may also generate unnecessary and potentially harmful assumptions about the nature of the group—for example, that the lack of political influence is related to the nature of the group itself rather than structural elements in society.
Moreover, the notion of equality present in the law implies some level of hierarchy which, when combined with identity, can help to entrench the current racial order. For example, George Lipsitz has explained that whites have a particular investment in identity politics, given the way in which white identity has been defined. In The Possessive Investment in Whiteness, Lipsitz argues that “white Americans are encouraged to invest in whiteness, to remain true to an identity that provides them with resources, power, and opportunity” and that whiteness is “an identity created and continued with all-too-real consequences for the distribution of wealth, prestige, and opportunity.”
Thus, as in the context of the law, identity is not imbued with normative value suggesting an innate benefit to those who seek to use identity as an organizing force to combat inequality; rather, it can work just as easily to exacerbate oppression as to fight it. Moreover, if the very content associated with whiteness is dominance,
an identity-based jurisprudence will inherently serve to bolster the existing racial hierarchy.
II. Moving from the Categorical Model to a Value-Based Approach
Building on arguments in Part I that identity-as-proxy jurisprudence has contributed to or facilitated undesirable effects within the doctrine and generates harms for both those included in and excluded from heightened protection, this Part suggests an alternative framework for equal protection doctrine. Because it is rooted primarily on ideas already present in the doctrine, but which have been subsumed by identity’s dominance, it offers potential for redeployment of existing doctrine—and a new way to talk about discrimination using familiar concepts—not just a proposal for radical change.
In addition to the issues raised above, there are several other reasons why a shift in thinking about equal protection is needed. First, as other equal protection scholars have recognized, society has become more pluralistic,
and the demarcation of identity categories has become increasingly complex. For example, in the 1940 census, just two years after Carolene Products was decided, Mexican Americans were considered “white” and black–white multiracials would have been considered black (or, more accurately, “Negro”) without further elaboration.
Evolving notions of racial and gender identity demand a framework that can accommodate and respond to more nuanced claims of discrimination.
Second, in addition to individuals who straddle or who do not conform to traditional identity categories, there is the question of whether the categories themselves are adequately described. For example, it is unclear whether Latinos and those of Middle Eastern descent are considered members of a racial group for purposes of equal protection; courts have, to date, most often perceived discrimination against those classes as discrimination based on national origin.
While national origin currently enjoys the same level of scrutiny as race, the two categories are nonetheless viewed as distinct and thus perceived differently.
Whether someone who is Latino is a member of not just an ethnic minority but also a racial minority is an ongoing debate within equal protection jurisprudence;
this example illustrates that it is not clear what is gained by the law’s emphasis on the race–ethnicity distinction. By creating such divisions, the law may unwittingly divorce, or place into a hierarchy, forms of discrimination and oppression that share systemic causes and which might crumble more quickly under a joint attack.
Last, and perhaps most important, the identity framework no longer effectively serves the aims it was designed to achieve, or that others have assumed it would. As discussed above, in recent years, it has been used on behalf of groups at the top of the racial and gender hierarchies as often and as successfully (if not more so) than by those at the bottom.
Thus, identity may already have proven itself a deeply flawed tool for combating oppressive racial- or gender-based discrimination.
Section II.A begins by defining the structural concerns for which identity currently serves as proxy, and which provide the substantive basis for what I have termed the value-based model.
To remain as consistent as possible with existing doctrine, it looks to those values already articulated in the case law, particularly the need to address a history of past discrimination and political powerlessness.
In doing so, it focuses only on those values that reflect structural causes of inequality, and not those that relate to individual traits isolated from their social and political role.
Section II.B explains in greater detail—using specific examples involving race, gender, and language discrimination—how the value-based approach would alter the current analysis of equal protection claims. Section II.C provides some initial thoughts as to how this shift might have potential impact beyond the Supreme Court’s equal protection jurisprudence. It suggests, for example, that litigants in lower courts might take advantage of the value-based model’s roots in existing doctrine to deploy novel arguments, and that legislators and policymakers might use the value-based model to reconceptualize affirmative action policies and antidiscrimination law. Perhaps most important, it submits that the value-based model can provide a new framework for discourse on such issues—one that is less susceptible to co-option and colorblindness rhetoric.
A. Defining the Value-Based Approach
In The Empty Idea of Equality, Peter Westen argues that the notion of equality—to the extent it dictates that likes should be treated alike—is “an empty form having no substantive content of its own.”
Westen argues that claims cloaked in the language of equality can ultimately (and more effectively) be reinterpreted as the claim to a specific right or entitlement.
In Westen’s view, this comparative element of equal protection, which can be linked to identity,
distracts from the more important inquiry as to whether the underlying substantive right has been violated.
As to the Equal Protection Clause, Westen noted that the courts have failed to identify “the precise sort of injury that the substance of the equal protection clause is designed to prohibit.”
The value-based approach is responsive to Westen’s argument in that it is an attempt to provide substantive meaning to equal protection—not because equality is necessarily meaningless in the absence of such meaning, but because the notion of equality is otherwise highly susceptible to manipulation and distortion.
Rather than framing equal protection claims as the right of a claimant to be treated the same as a person of any other gender or race, this Essay argues that equal protection should be framed primarily in terms of the structural concerns such categories are intended to vindicate.
Thus, discrimination becomes not about categorical determinations of protection (or nonprotection), but instead about how individuals or groups have been excluded and the impact such exclusion has had on their access to the political process
and to the provision of state-provided benefits and protections. Group affiliation continues to be relevant, but it is contextual, defined by those alleging discrimination and not by the courts, and relevant only insofar as it serves as the basis for the denial of access—not as the determinant of the level of protection that will be provided.
As suggested above, one need not look far for the animating values that could supplant an identity-as-proxy approach. To decide which forms of discrimination are constitutionally permissible, one might look to the Court’s own assessment of why certain identities are deemed deserving of heightened scrutiny and the reasons for that distinction—in other words, the criteria used in defining a classification as “suspect.”
Although the origin of these criteria is problematic, the history of their application conflicted,
and the expansion of their application seemingly limited,
I use these criteria because they have become part of the doctrine and therefore offer a bridge from the categorical model to the value-based approach. Under the Court’s logic, certain identity categories are entitled to heightened protection because of their ability to, on a generalized level, satisfy these criteria. In a sense, then, they serve as a proxy for these values, yet because they do so in an imprecise fashion, they leave doctrinal wreckage in their wake.
For many constitutional law scholars, the beginning point for discussing equal protection doctrine is Carolene Products’s footnote four. In United States v. Carolene Products, the Court wrote in what is now one of the most famous footnotes of all time:
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation . . . . Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities; whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
The doctrine’s reliance on identity is arguably traceable to Carolene Products. In footnote four, Justice Stone set off from other cases those statutes involving prejudice against “discrete and insular minorities.”
Yet, as Carolene Products’s own language makes clear, the status of the individual as part of a “discrete and insular minorit[y]”—as a marker of identity—is relevant only insofar as it serves to restrict his or her ability to utilize the political process to secure necessary legal protections.
In the years following Carolene Products, the Court identified a number of criteria used to define suspect classifications:
a history of past discrimination,
the irrelevancy of a trait to an individual’s ability to contribute to or participate in society,
Setting immutability and relevance aside,
these criteria represent the substantive reasons for finding certain types of discrimination particularly pernicious. Yet, rather than attempting to root out discrimination that directly implicates such criteria, and following in the lead of the “discrete and insular minority” model, the Court chose to carve out certain categories to represent these criteria and to apply heightened scrutiny to discrimination made along such categorical lines.
The argument made herein does not focus on immutability or relevance as key values underlying equal protection because both of those factors relate to traits rather than to structural causes of inequality.
Immutability is not independently relevant, but it provides a proxy by which we can gauge personal responsibility for the denial of access.
This Essay is concerned not with whether an individual should be held personally accountable for an aspect of her identity, or whether that trait justifies differential treatment, but instead with the structural forces that result in her being treated as different and the effects such treatment may have.
As Jack Balkin has explained:
The question to ask is not whether a trait is immutable, but whether there has been a history of using the trait to create a system of social meanings, or define a social hierarchy, that helps dominate and oppress people. Any conclusions about the importance of immutability already presuppose a view about background social structure.
Similarly, the determination whether a trait is relevant to one’s contribution to society cannot be divorced from the way in which society itself has constructed the trait.
Moreover, because identity is a social construction that has been used to create and maintain subordination,
a system organized around identity will inevitably incorporate its problematic roots. Therefore, the description of a trait in isolation—without regard to the role it has played in a larger social and political context—is not a helpful metric by which to assess when heightened scrutiny is truly warranted.
While other scholars like Bruce Ackerman
and Susannah Pollvogt
have recognized the shortcomings of the Carolene Products approach, none have pinpointed the use of identity as proxy as the source of the problem. Due to the inextricable relationship between equal protection and identity, other scholars like Kenji Yoshino, honing in on the difficulties posed by an increasingly pluralistic society, have suggested a move away from equality altogether (and in Yoshino’s case, towards a liberty-based dignity analysis).
Ultimately, this Essay’s primary objection is not to the use of equality as a vehicle, or to the criteria used by the Court to define suspect classifications (although, certainly, other criteria might be used as well)—but only to the use of identity to embody such criteria. Hence the proposal that equal protection be grounded directly in such values, unconstrained by the strictures of identity.
Under a value-based framework, an individual need not align herself with an established group identity to receive a heightened level of scrutiny; nor need she carve out a new suspect classification. Furthermore, the touchstone for equality is not whether she has been granted or denied access to the same degree as a member of a different identity group who is otherwise similarly situated. Rather, she must show that the nature of the discrimination she has endured reflects one of the non-trait-based criteria triggering heightened scrutiny: a history of past discrimination or political powerlessness. Discrimination that implicates those factors should require strong justification in order to survive constitutional scrutiny.
Ultimately, a value-based framework adopts a structural view of equality. It is less concerned with how one individual is treated in relation to another, or about the nature of the trait on which the discrimination is based. That shift has implications not only for assessing harm, but also for the remedies that may be imposed. A focus on identity will lead to remedies that ensure that the state treats members of different identity groups in the same way. By contrast, this model’s focus on how social systems oppress—and on ensuring that the state does not contribute to discrimination that obstructs certain types of access—may be more likely to invite discussions of structural change. In other words, if the problem is framed not as treating an individual unfairly because of her gender, or the color of her skin, but as one instance of a larger phenomenon that has oppressed everyone in her position, a superficial response may be more likely to seem inadequate.
Moreover, a value-based approach avoids the current equal protection loophole that allows the state to deny everyone a benefit rather than provide it on equal terms.
That said, a value-based framework does not necessarily diminish the impact that identity—and identity-based prejudice, such as racism or sexism—has on individuals. To the contrary, it is intended to give substantive meaning to distinctions premised on identity and to prevent identity from being doctrinally distorted so that it is no longer capable of providing legal protection to those who need it most. The fact that the value-based model rejects the use of identity as a vehicle for vindicating equal protection values should not be taken as a denial of its importance in other contexts. Identities such as race and gender have always played—and will continue to play—a critical role in creating collective identity and thus in mobilization and political organizing. But the fact that race and gender are such an important part of identity—both personally and politically—does not necessarily mean that they are always the best vehicles for providing legal redress.
Difficulties will inevitably arise in attempting to ascertain the factors that give rise to heightened scrutiny under such a model. For example, it would not be a simple task to determine the requisite level of historical discrimination or political powerlessness that would give rise to heightened scrutiny.
That is in part why a spectrum of protection—as Justice Marshall and Justice Stevens have described—would likely be a better fit for such a model than a scheme where rigid levels of scrutiny apply to rigidly defined categories. During his tenure on the Court, Justice Marshall repeatedly expressed his disagreement with the Court’s rigid approach to equal protection analysis, rejecting the application of what was at the time only two predetermined levels of scrutiny.
Instead, he advocated a “spectrum of standards” that would base the degree of care applied on the constitutional and societal importance of the interest affected and the character (or invidiousness) of the classification drawn.
One could similarly envision here that the level of scrutiny applied would correlate to the severity with which access has been denied.
For example, if the history or pattern of discrimination alleged is particularly recent, significant in degree, or sweeping in its scope,
the level of scrutiny would likely be higher than if the history of past discrimination was smaller in scale and left less at stake.
This mode of analysis—eschewing a more formalized suspect classification inquiry in favor of a more functional approach—is not completely absent from equal protection doctrine in its current form. Yet the cases employing such an approach are often seen as anomalous, rather than foundational. One such case is Hernandez v. Texas,
which involved a claim that state officials in Fort Bend County, Texas, had engaged in discrimination against Mexican Americans, systematically excluding them from jury service.
In analyzing the plaintiff’s claim, the Court acknowledged the need for a more flexible, contextualized approach, explaining:
Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection.
The Court also noted that the question “[w]hether such a group exists within a community is a question of fact.”
In Hernandez, the Court determined that persons of Mexican descent being excluded from jury service constituted a “separate class” warranting equal protection.
Having done so, the Court next asked whether the class had been subjected to differential treatment.
Rather than analyze the case as one involving a racial classification or discussing the issue in racial terms,
the Court focused on the specific treatment of Mexican Americans in the community—for example, the fact that their involvement in business and community groups had been marginalized and that segregation measures either were or, until recently, had been in place.
The Court’s reasoning in Hernandez, as Ian Haney López and Michael Olivas have argued, was grounded in group mistreatment and subordination: “The Hernandez test rests on opposition to group hierarchy: It focuses on status and subordination, without being distracted by the irrelevant questions of the exact nature of the group identity or the presence of discriminatory intent.”
Thus, it is very much in line with the value-based approach.
Similarly, in Plyler v. Doe, the Court held that the undocumented status of Mexican children could not justify their exclusion from public schools.
Although the Court acknowledged that the children’s immigration status was not wholly irrelevant, it emphasized to a greater degree that the deprivation of a proper education would take an “inestimable toll . . . on the social, economic, intellectual, and psychological well-being of the individual” and stand in the way of individual achievement.
In both cases, the Court focused primarily on the contextual impact of the claimed discrimination, rather than the nature of the identity at issue.
There will of course be difficulties in measuring the variables that are part of this analysis, just as there are under the current model.
But, whereas attempting to define an identity group results in negative externalities (in terms of identity and exclusion), attempting to define these variables has the potential positive effect of highlighting or exposing more subtle aspects of discrimination. Rather than assuming that general antidiscrimination objectives will be fulfilled by treating the members of certain pre-defined groups with heightened scrutiny, this analysis can be applied on a case-by-case basis to ensure both that the relevant criteria apply as accurately as possible and that the groups defined by the court are not over- or under-inclusive.
Eliminating the use of identity as proxy should not be equated, however, with the irrelevance of group-based discrimination. The fact that individuals are often discriminated against because of their affiliation with or relationship to a specific group remains highly relevant. In that regard, one important distinction from the current model centers on who defines the group at issue. Under the current framework, individuals are incentivized to associate themselves with groups that have been defined—and deemed worthy of heightened protection—by the courts.
In contrast, under the value-based model, the claimant or claimants define the contours of the group themselves and the court merely assesses the claim by applying the substantive criteria outlined above.
B. Impact of the Value-Based Approach
How might this model alter the mode of analysis for equal protection claims? One illustrative example emerges in reconceptualizing the 2007 case Parents Involved in Community Schools v. Seattle School District No. 1.
At issue in Parents Involved were the school assignment plans formulated by school districts in Louisville, Kentucky and Seattle, Washington. Although the two districts had varying histories of racial discrimination—Louisville had been subject to a desegregation order but then found to have achieved unitary status
and Seattle had never been subject to de jure racial discrimination
—both districts were characterized by a substantial amount of de facto discrimination.
In response, and for the purpose of “eradicating earlier school segregation, bringing about integration, or preventing retrogression,”
the two school districts had developed plans that would take account of race in assigning students to schools.
Chief Justice Roberts authored the Court’s opinion declaring both plans unconstitutional under the Equal Protection Clause.
The opinion first focuses on the fact that race was a determinative factor in assigning students to schools.
Following in the path of past precedent, the Court found it unnecessary to consider whether the use of race by the plans was “benign” or “invidious.”
Triggered by the use of race alone, the Court applied strict scrutiny and rejected the notion that “racial balancing” (even if labeled as “racial diversity”) could constitute a compelling interest to justify the use of race.
The plurality opinion also criticized the means used by the school districts in implementing the plans, explaining that the school districts’ failure to consider race-neutral alternatives and their limited use of racial categorizations failed to satisfy strict scrutiny’s narrow tailoring requirement.
Epitomizing a colorblind approach to equal protection jurisprudence, Chief Justice Roberts’s opinion famously declared, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
This quote is also a manifestation of the race-as-trait view. If race had been viewed as the product of structural forces, the solution could not be as simple. Justice Sonia Sotomayor perhaps expressed this point most eloquently in her Schuette dissent: “The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”
If the problem is characterized simply as discrimination on the basis of identity, then it can be remedied by ceasing to discriminate on the basis of identity. If, in contrast, as Justice Sotomayor suggests, the problem runs much deeper, a solution that aims at a more superficial level will fail to address the underlying causes of discrimination.
Applying a value-based inquiry, the analysis of the equal protection question posed by Parents Involved would be quite different. Rather than focusing on the use of race (the relevant identity category) as the triggering factor, the Court would look to the plaintiff or plaintiffs to demonstrate how the discrimination experienced by them (or by the class that they defined) implicated the values underlying equal protection. For example, the plaintiffs would have to show that the student assignment plans stemmed from or perpetuated a history of past discrimination against the plaintiff class or affected the class’s ability to access the political process as a means to provide for legal protection. In doing so, the plaintiffs would have to first articulate the nature of the discrimination and its effect—here, such a description would have to revolve around the treatment of those who identify as white. Interestingly, Chief Justice Roberts’s opinion makes no mention of the plaintiffs’ race, never specifically identifying them as white.
Under the model proposed herein, a white plaintiff could no longer make a claim based on “race” alone. Given the history of Louisville and Seattle, as outlined in detail in Justice Breyer’s dissent, it is unlikely that such a plaintiff would be able to argue that the plans’ operation somehow exacerbated or perpetuated a history of discrimination against white students in the relevant jurisdiction.
It is also unlikely she would be able to argue that her assignment obstructed or diluted her ability to effectively utilize the political process.
The focus of this approach takes on particular significance when applied to the contributions made by Justice Thomas’s and Justice Breyer’s opinions in Parents Involved. In his concurrence, Justice Thomas wrote:
Disfavoring a colorblind interpretation of the Constitution, the dissent would give school boards a free hand to make decisions on the basis of race—an approach reminiscent of that advocated by the segregationists in Brown v. Board of Education. This approach is just as wrong today as it was a half century ago.
As the dissenters emphasized, Justice Thomas’s approach ignores the vastly different context in which the two cases were decided. In contrast, Justice Breyer’s seventy-seven-page-long dissent traced the history both of the school districts themselves and of the doctrine, emphasizing the differences in nature between de jure segregation and the actions taken by Seattle and Louisville’s school boards. In conclusion, Justice Breyer wrote:
The lesson of history is not that efforts to continue racial segregation are constitutionally indistinguishable from efforts to achieve racial integration. Indeed, it is a cruel distortion of history to compare Topeka, Kansas, in the 1950’s to Louisville and Seattle in the modern day—to equate the plight of Linda Brown (who was ordered to attend a Jim Crow school) to the circumstances of Joshua McDonald [plaintiff in the instant case] (whose request to transfer to a school closer to home was initially declined). This is not to deny that there is a cost in applying “a state-mandated racial label.” But that cost does not approach, in degree or in kind, the terrible harms of slavery, the resulting caste system, and 80 years of legal racial segregation.
By shifting the focus of the inquiry to the substantive criteria suggested above, and away from a more superficial inquiry about race, the Court would be forced to grapple with the evidence Justice Breyer sets forth; Justice Thomas’s comparison of the Louisville and Seattle school boards to the actions of segregationists then becomes far less tenable. This is not to say that the result would necessarily be different, particularly given the current composition of the Court, but the tenor and focus of the Court’s primary opinion would surely reflect a different level of engagement.
Another area in which the shift from a categorical model to a value-based model might have a significant impact is in the voting rights context. As Richard Hasen has pointed out, in the context of analyzing the legality of voting regulations, race and party often coincide and yet laws seen as discriminating on the basis of political party are likely to stand whereas those based on race are likely to fall.
Hasen suggests in response that rather than focus on race—for example, asking whether laws requiring potential voters to present identification are racially motivated—the Court should apply a standard akin to strict scrutiny (“strict scrutiny light”) to voting laws that discriminate against a party’s voters or otherwise burden voters.
Hasen’s proposal is similar to the value-based model in that it relies on a substantive (or factual) rather than an identity-based triggering inquiry. In other words, the primary task is not to determine whether identity category X is involved or serves as the motivation for the law,
but instead whether the law has some detrimental effect on access to the political process and political power.
The debate surrounding majority–minority districts is another voting rights issue that raises important questions about the doctrine’s reliance on identity. The reliance on majority–minority voting districts as a means of protecting minority voting rights relies to a large extent on the assumption that minority voters are monolithic in their voting preferences.
The Court recognized this tension in Shaw v. Reno, finding that a redistricting plan that aggregated minority voters in majority–minority districts “reinforce[d] the perception that members of the same racial group—regardless of their age, education, economic status, or the community in which they live—think alike, share the same political interests, and will prefer the same candidates at the polls.”
Given the redistricting legislation’s clear reliance on racial stereotypes, its remedial aims were not enough to avoid strict scrutiny under the Equal Protection Clause.
The Court’s holding in Shaw was consistent with a broader understanding of identity, yet in pushing back against a particular narrative, the decision constructed a barrier for those attempting to protect minority voting rights. Had the Court been less focused on preserving a particular conception of racial identity, and more on the impact of the law on political exclusion, its analysis surely would have been different.
The last context in which this shift might have an impact is with regard to those characteristics that align with existing suspect classifications but fall short of precise correlation. One such example is language discrimination. In Hernandez v. New York, a prosecutor had struck Spanish-speaking bilingual jurors, claiming they would not be able to accept the interpreter’s version of testimony given by Spanish-speaking witnesses.
The Court ultimately held that the prosecutor’s reason for striking the jurors was race-neutral, in part because both categories at issue—those who might have difficulty accepting the translator’s version of Spanish-language testimony and those who would not—would include Latinos.
Because, in the Court’s view, language did not operate here as a “surrogate for race,” there was no equal protection violation.
Under a value-based model, there would be no similar need to align a trait such as language with race or any other established suspect classification.
Instead, the focus of the equal protection inquiry would be on the nature of the discrimination at issue. Thus, a plaintiff might argue that the group at issue has experienced a history of discrimination based specifically on language,
or that the alleged discrimination has a negative impact on their ability to engage in civic participation (e.g., jury service).
One might ask how this approach is any different from antisubordination theory, which would not invalidate just any use of race, but only those which serve to oppress or subordinate members of a particular racial group.
In substance, the value-based model is in fact very similar to the antisubordination approach; it may even be thought of as a way to operationalize antisubordination theory. As often understood and applied, however, antisubordination may be subject to some of the same critiques as described in Part I above. Antisubordination does not necessarily eschew the categories of race and gender as commonly defined; rather, it embraces their role as proxy for a set of specific social and institutional experiences and approves of action on the basis of those categories under certain circumstances
(in contrast to anticlassification’s wholesale disapproval of action on the basis of such categories). While the approach advocated herein shares the ultimate goal of dismantling existing hierarchies and combating subordination, it diverges from antisubordination—and other approaches—in using identity categories as the doctrinal means for achieving that end. In other words, rather than assuming that acting on the basis of race or gender will address the subordination problem, it would tackle the subordination question directly.
Ruth Colker uses the following as a demonstrative example of antisubordination’s impact: “[A] policy excluding persons who have primary child care responsibilities from consideration for employment, although phrased in sex-neutral terms, would have a disparate impact on women. It would also perpetuate a history of sexual hierarchy by penalizing women for their societally imposed child care responsibilities.”
Thus, she suggests, the policy would be viewed as invidious under an antisubordination approach.
The analysis and result of the instant case—depending on the court’s willingness to apply current doctrine as Colker suggests—could be the same under either the categorical or a value-based approach. The point is that application of the identity framework adds little benefit; for purposes of the instant policy, the plaintiffs could define themselves as women who bear the primary responsibility for child care, thereby making a clearer case for contextual discrimination and avoiding the implication (or further entrenching the assumption) that bearing the primary responsibility for child care is an essential trait of womanhood.
The last point serves as an effective segue to another case that has proved problematic under the current framework: Geduldig v. Aiello.
At issue in Geduldig was California’s disability insurance program, which paid benefits to those temporarily disabled from work, but excluded pregnancy-related disabilities.
The Court held that the statute did not exclude anyone from benefits on the basis of gender, but “merely remove[d] one physical condition—pregnancy—from the list of compensable disabilities.”
While the opinion conceded that only women could become pregnant, it declined to equate classifications based on pregnancy with sex-based classifications.
The quandary raised by Geduldig is a manifestation of identity-based jurisprudence: Because heightened protection can only be afforded to those who fall within a specific identity category, the primary inquiry is whether the trait at issue can be wholly associated with a protected identity category. As the Court emphasized:
The lack of identity between the excluded disability and gender as such under this insurance program becomes clear upon the most cursory analysis. The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes.
Thus, the requirement that protection be based on identity means that a trait on which discrimination is alleged must either equate to identity or it is unlikely to provide a basis for unlawful discrimination. Given this binary analysis, the Geduldig Court was able to conclude as a logical matter that not all women are pregnant or will become pregnant; thus discrimination on the basis of pregnancy does not equate to gender discrimination and does not warrant heightened scrutiny.
To equate pregnancy and gender has the potential to essentialize all women.
Yet to refuse such an association denies the fact that those affected most directly by the exclusion will inevitably be women. Under the value-based model, such a dilemma would be avoided, as the plaintiff class could contextualize its own identity and avoid the need to conform the classification at issue to a broader identity-based framework.
Perhaps the greatest fear raised by the shift from a categorical model to a value-based approach is the notion that identity provides cover for those who on their own could not establish a substantive claim to relief, but have the power to do so as part of a larger group. In other words, the current framework has done most of the work for those who can simply find a way to wedge themselves into a covered class. While a justifiable concern, it is not clear that the current framework actually offers much protection for those most in need of such protection. While such individuals may still be clambering for cover under the umbrella of equal protection, the Court is not interested in expanding the umbrella’s shade. And in fact, it may be that those previously given cover are increasingly being crowded out as the umbrella is repurposed to provide protection only to a privileged few.
C. Operationalizing the Value-Based Approach
Given that the Court is unlikely to radically alter its framework for equal protection analysis, this Essay offers a few brief thoughts on several other vehicles through which a value-based approach might be operationalized or provide a valuable contribution nonetheless.
First, in litigating such issues in the lower courts, plaintiffs could adopt such an approach, drawing on the substantive underpinnings of cases like Carolene Products and Frontiero v. Richardson. Rather than arguing for recognition as a suspect class, however, plaintiffs might request that the court simply apply the substantive criteria (without using an identity filter) in the specific context of the claim at issue. In doing so, a plaintiff would not be attempting to contradict Supreme Court precedent—by asking, for example, that the court apply strict scrutiny when it is clear that intermediate scrutiny applies to the category—but instead, the plaintiff would be asking the court to rely on the reasoning underlying existing precedent as applied to the situation at hand. In other words, a plaintiff alleging discrimination as a single, pregnant mother would allege not that she had been discriminated against on the basis of gender but rather that she, and the class she represents, have experienced a history of discrimination in the context at hand or are not in a position to effectively achieve change through the political process. Thus, she would argue, the court should require a greater level of justification for government action taken to disadvantage the class at issue. While many courts would likely impose the dominant identity-based framework regardless, a more receptive court could entertain plaintiffs’ arguments without running directly afoul of Supreme Court precedent.
Alternatively, outside of the litigation context, policymakers might attempt to take advantage of the fact that the doctrinal model suggested here follows a different inquiry than that required by the existing model. For example, rather than using proxies or correlates for race, such as socioeconomic status, officials attempting to design an affirmative action plan might use the substantive criteria set forth here. This would both shield the plan against constitutional attack (because it does not use “race” as a triggering factor) and flesh out meaningful differences that cannot be addressed even under a race-based preference plan.
While the constitutionality of race-neutral affirmative action programs that serve as a mere façade for race-based preferences may be questionable,
a policy that aims to satisfy the substantive criteria to applicants as they present themselves may have a better chance of survival. For example, a policy might rely more heavily on personal statements and holistic determinations of an applicant’s relative privilege or level of access—perhaps by requesting more information regarding the applicant’s family history—rather than racial markers standing in as a proxy for an essentialized experience.
On the legislative front, within the confines of its Section 5 enforcement power,
Congress could legislate to provide protection to groups not adequately captured by the identity categories often utilized in antidiscrimination law. Much as Congress responded to the Court’s decision in Geduldig by statutorily amending the definition of sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions,
it could statutorily prevent discrimination that thwarts political access or exacerbates existing patterns of historical discrimination.
Last, the value-based model also has potential to influence important debates occurring with regard to state legislation. For example, in the affirmative action context, though many lament its inevitable demise in the Supreme Court,
several states, including California and Michigan, have already prohibited affirmative action in multiple contexts.
To the extent that the battle over affirmative action will be fought in the states through popular initiatives, referenda, and legislation, the value-based approach provides supporters of affirmative action with new rhetoric and a different way to frame those debates—one that is less susceptible to popular appeals toward colorblindness.
III. Advantages and Critiques
This Part endeavors to explore some of the possible advantages and critiques of the model described in Part II.
Section III.A describes the advantages of a value-based model, including: (1) the capacity to recognize important distinctions both within and among different groups within a broadly constructed identity category; (2) flexibility in its case-based and more contextual approach; (3) the ability to address intersectionality concerns; (4) eradication of the comparative and intent elements of existing equal protection doctrine; (5) improved utilization of the judicial function in asking courts to analyze empirical data rather than define or police identity; and (6) its important discursive function in changing the rhetoric used to talk about discrimination.
Section III.B attempts to address some of the critiques that might be levied against such an approach, including the arguments that it deemphasizes the importance of identity and persistent overt discrimination and may be susceptible to other forms of co-option.
A. Advantages of a Value-Based Approach
One of the key advantages of a framework that eschews identity as a guiding principle is its ability to make distinctions between groups and within groups. It can account both for differences in historical treatment—for example, between blacks and whites—and for the different ways in which groups may be treated given the context. For example, while the current model may struggle to distinguish within the larger group of Asian Americans, a value-based approach could distinguish between the experiences of a Chinese American woman in Los Angeles and a Hmong woman in central California.
To provide another example, some scholars have argued that in the context of affirmative action, all blacks are not created equal
and that “ascendant” blacks—those with two native-born black parents or a more direct connection to America’s history of racial discrimination—should be treated differently from multiracials with some black heritage or black immigrants.
Kevin Brown and Jeannine Bell contend that treating all of the groups as “[b]lack,” without any further categorization, undermines the original goals of affirmative action and leads to underrepresentation of blacks with a traceable connection to historical oppression in the United States.
Regardless of one’s opinion on the merits, a framework not based on a monolithic version of identity would encourage such discussions, guided not by identity but instead by a substantive set of priorities.
The value-based model also offers more flexibility and does not require courts to draw sweeping or generalized conclusions. The Court has been extremely hesitant to expand the number or scope of suspect classifications,
in part because of the broad impact that making such a finding would necessarily have under the current regime.
Under a more contextualized model, conclusions made with regard to a plaintiff class would not necessarily dictate the result in every future case, possibly giving courts more freedom to recognize discrimination without fearing the consequences that may follow.
In contrast to the current regime, whose concept of identity is fixed in a period of time that does not reflect current realities, a value-based model offers more flexibility and can adapt to evolving notions of identity and the increasing legal recognition of social and cultural pluralism. Perhaps more important, it can adapt to the way in which society’s response to such changes and discrimination itself may evolve.
There are some experiences that everyone raced as black or classified as female will likely share, but others that will vary widely among members of the group. Because the value-based model allows the group to define itself on its own terms, there is less risk of over or underinclusion. It also avoids the identity harms that can result from forcing individuals into categories that do not align with their own self-conception.
For example, there are some individuals, such as those of Middle Eastern descent, who are legally required under the current framework to identify as white but who “argue that their experiences with race discrimination make their experiences more similar to racial minorities.”
The same difficulty confronts Latinos who “resist being categorized as white.”
Those who do not “feel that the current configuration of racial categories adequately describes their personal (private) views about race . . . are forced to describe themselves imperfectly, and they do so in ways that may cause problems if they later raise discrimination claims.”
Similarly, individuals whose gender identity and biological gender diverge need not align themselves with one side of a binary gender framework.
Given its emphasis on experience over label and function over form,
the framework offered here provides recourse for those in a racially or gender-liminal position.
The more contextualized and nuanced nature of the value-based approach would also make it more effective in addressing concerns regarding intersectionality. Whereas the categorical model is either exclusionary of intersectionality concerns or forces individuals to conform their claims to the single-axis framework,
the value-based approach empowers claimants to describe the identity of the individual or group and describe the contours of the discrimination at issue. In doing so, it provides a forum for claimants to explore the intersection of various forms of discrimination or oppression and to show how, in some cases, that intersection may lead to even more pernicious discrimination, with correlating results. Such discrimination would otherwise be rendered invisible under the current framework.
Unlike more radical approaches, which would seek to wholly supplant existing doctrine,
this model draws on underlying elements of the current framework. Thus, it has the potential for redeployment that has been exploited in other contexts, such as the reappropriation of equal protection’s intent requirement to serve politically conservative ends.
It also has the potential to avoid doctrinal pitfalls that have developed under the existing framework. For example, a value-based model alleviates the need for comparative treatment
—i.e., demonstrating that like have been treated alike—because the focus is not on how one identity group is being treated in relation to all others. In addition to more pragmatic difficulties it poses,
the similarly situated requirement makes possible the perverse result that, to provide redress in the face of a possible equal protection violation, the state may withdraw all benefits rather than provide them on an equal basis.
In contrast, under a value-based approach, the question is not how an individual has been treated in relationship to others, but whether the way in which she has been treated implicates the values the doctrine has prioritized.
For progressives, another frustration with equal protection doctrine is the requirement that a plaintiff must prove discriminatory intent in order to make out an equal protection violation.
To the extent race has no substantive meaning from a legal perspective, it is because the Court has deprived it of any such meaning; the Court has willed colorblindness by saying that effects alone are usually insufficient in assessing claims of discrimination.
Under a value-based model, the Court no longer assigns meaning to identity, and the facially racial/facially neutral distinction is no longer relevant because categories, like race and gender, no longer serve as the triggering factor for heightened scrutiny. The purpose of the intent requirement is to prove that a statute that appears neutral on its face is, in actuality, acting as a racial classification.
Ultimately, it matters that race is at issue because of the values that such discrimination represents. If instead, the inquiry focuses directly on whether state action implicates certain values, it does not necessarily matter whether such implication was intended or not. In other words, under the current framework, courts use intent to ferret out a distinction that is imbued with specific meaning.
If the intermediary category of identity is eliminated, a more complicated and more involved inquiry must ensue to determine whether the substantive criteria have in fact been met in the context at hand. But the use of a doctrinal shorthand comes with a cost—namely, that the shorthand can be dismissed more easily through the application of the intent–effects test. Rather than showing that the substantive criteria have not been met—which could itself be part of an important political and social dialogue—a defendant can merely demonstrate that the plaintiff has not shown that race or gender was the clear cause of the differential treatment. It is true that the question of evidentiary standards is distinct from the predicate for a claim; in other words, intent could be required under any approach. Yet, the very nature of the value-based approach implies that intent is not relevant; ultimately, the model’s primary concern is about the effects of the discrimination on the group at issue.
The value-based approach shifts attention from the individual act to structural or systemic phenomena that can cause an otherwise unobjectionable act to have constitutional import. Dean Spade has argued that, in its current form, antidiscrimination law individualizes racism and is “about bad individuals who intentionally make discriminatory choices and must be punished. In this (mis)understanding, structural or systemic racism is rendered invisible.”
Similarly, unconscious bias or racism goes unnoticed or unaddressed because it is difficult to establish the causal chain between actor and illegal act.
In that respect, however, unconscious racism might be subjected to the same set of questions that resurface throughout this piece: Is unconscious racism troubling because it quietly and not explicitly invokes race (in which case the primary concern is ferreting out race as the underlying basis for action), or is it that unconscious biases aid in perpetuating certain dynamics that serve to maintain hierarchy and obstruct access?
Because it forces dialogue to remain at a fairly superficial level, the current framework short-circuits the potential for full political debate under a guise of colorblindness. While the questions demanding a response under the value-based model would not be easy, the substantive discussion that would result is sorely needed. In his seminal work, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, Charles Lawrence wrote:
Blacks and other historically stigmatized and excluded groups have no small stake in the promotion of an explicitly normative debate. While their version of shared values or fundamental principles—the victim’s perspective—may not hold sway at the moment, the courts can become a legitimate forum for the persuasive articulation of that version. And once the debate is made explicit, the hegemonic function of the law is diminished. This is not to say that the courts should become the exclusive or even the primary forum for normative debate, but rather that, by making the debate over fundamental principles explicitly political, one expands the arena for that debate.
Ultimately, the substantive nature of the framework suggested here would facilitate more transparent and open dialogue about when heightened scrutiny should apply.
Even if more substantive analyses by the courts do not lead to greater judicial protection, they may serve as a vehicle to unearth factual realities that can facilitate action in the political and legislative arenas. Moreover, the language of the value-based approach offers a needed reprieve from the binary nature of the current approach and a new tactic for advocates battling against colorblindness. Once the dialogue has shifted from “color matters/color doesn’t matter” to a discussion of substantive treatment, the rhetoric of colorblindness is no longer applicable and anticlassificationists can, in essence, no longer be anticlassificationists (because the framework no longer revolves around classification). Instead, they must debate plaintiffs on the substantive terms of their claims.
On an institutional level, courts may be better suited to answer the questions posed under a value-based model than they are to do what is expected of them under the current model. Under either model, courts will play a gate-keeping function; their role will always be to identify legal violations and to award the appropriate relief. Under a categorical model, the Court also assumes the awkward position of policing identity categories.
As Justice Kennedy has recently suggested, for courts to undertake the venture of defining race-based categories would not only lack “clear legal standards or accepted sources to guide judicial decision but also it would result in, or at least impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.”
Moreover, for the Court to make such a judgment in the context of one case, which will then govern all other instances of discrimination based on the same category, rather than assessing the role of identity on a case-by-case basis, increases the risk that the experience described by the plaintiff in that case will become the dominant narrative for all plaintiffs sharing the same identity trait. There may be a further danger in that, if and when the Court makes such determinations, they remain fixed in the doctrine and inevitably affect myriad other cases—at every level of the judicial system—as well as legislation that is based on Congress’s enforcement power under the Fourteenth Amendment.
In contrast, under a value-based model, courts are tasked with determining whether certain substantive criteria have been met. While any judicial determination will retain some level of subjectivity, courts may be better designed to analyze empirical evidence to determine whether a particular phenomenon has been demonstrated—for example, a history of discrimination, or the denial of access to the political process—than they are to define race or gender and determine who should qualify as a member of either category.
Moreover, because identity categories are creatures of social construction, they are imbued with meaning that the courts cannot expunge.
Thus, by utilizing identity as the foundation for equal protection doctrine, courts seeking to effect change necessarily cede control to society and lose the ability to enforce normative commitments that may underlie the distinction of certain identity categories as deserving of special protection. In contrast, although the nomenclature suggests otherwise, the questions inherent to a value-based approach can ultimately be thought of as factual questions—e.g., is there a demonstrated history of discrimination against this group?
Taking the power to define categories and assign individuals to those categories away from the state protects the equal protection doctrine from manipulation. For example, as the Hernandez story demonstrates,
under the current framework, a court’s (or the government’s) decision to classify individuals in a certain way—for example, classifying Mexican Americans as white—may deprive them of the means to prove an equal protection violation. Similarly, the Court’s decision to dissociate gender and pregnancy left the plaintiff in Geduldig in the same disadvantaged position.
Under a value-based approach, a court’s role is not to define categories or decide who meets the criteria for any given category; rather a court’s role is to make a factual determination—much as the Hernandez Court did—as to the treatment of a specific group within the applicable context.
Last, the shift to a value-based model of equal protection would serve a broader educative function for both the judiciary and the public. The considerations that led to the designation of race and gender as suspect classifications are presently assumptions buried deep in the doctrine. Thus most people have little occasion or reason to ponder why we actually care more about discrimination on the basis of race or gender than about other forms of discrimination. By forcing litigants to frame their arguments to emphasize the nature of discrimination and allowing them to contextualize such discrimination—rather than merely rely on superficial distinctions—this model forces courts (and perhaps the public) to grapple with the substantive impact of discrimination.
And by allowing for various narratives rather than requiring conformance to one dominant narrative, this model facilitates a more textured and nuanced exploration of discrimination.
B. Addressing Critiques of a Value-Based Approach
Perhaps the broadest critique levied at such an approach would question its eschewal of identity as a framing device, given the inherent value in highlighting the importance of categories such as race and gender. As Rhonda V. Magee Andrews has noted, “many liberal and critical race theorists argue . . . that, to ensure redress of substantive conditions of oppression, the last thing we need is less of a focus on race. Instead, we need to focus more attention on explicitly racial concerns.”
Critical race theorists, like Kimberlé Crenshaw, have underscored that “the most valuable political asset of the Black community has been its ability to assert a collective identity and to name its collective political reality.”
In response to critiques in that vein, this Essay does not suggest that identity itself is irrelevant; nor does it by any means suggest that we have transitioned to a postracial era.
Yet as an isolated concept, without any necessary elaboration as to why it is important, identity may fail to serve its intended purpose or, worse, be manipulated to unintended ends. As Lani Guinier and Gerald Torres have written, “[i]n the view of the neoconservatives, race is merely skin color and is thus meaningless and ignorable.”
In other words, one’s identity as black or as a woman has only as much meaning in the legal context as the law is willing to ascribe to it; supplanting identity with the substantive ends it is intended to serve may therefore make it more difficult to dismiss its relevance.
Identity is incredibly important, both to an individual’s sense of self and to social movements, but in those contexts, it plays a very different role than the role it plays in the context of the law.
In the hands of individuals, identity may serve to define one’s place in the world and in relation to other individuals. For social and political organizers, identity serves as a critical bond and a basis to rise up collectively against oppressive forces. In contrast, law is a system designed to negotiate relationships between individuals and groups. From the perspective of social and political organizers, it is often advantageous to paint identity with a broad brush, allowing it to be as inclusive as possible.
Yet, in thinking about the law’s role in providing remedies to address the harm suffered, a broad definition of identity may be unproductive for individuals who experience harm differently from those who more closely conform to the dominant identity narrative.
To the extent that law plays a critical role in “reproduc[ing] the structures and practices of racial domination,”
allowing the law to use identity as a tool risks its own distortion.
The value-based model leaves the power to define identity and to articulate its harms and consequences in the hands of the claimants.
To the extent that law shapes social movements and society and culture more broadly,
a value-based approach has potential to diminish the polarization caused by identity politics and instead to focus society’s attention on the effects of discrimination and disparate levels of access experienced by marginalized groups and individuals.
Of course, overt discrimination does still occur, and categorization on the basis of identity still does a great deal of work in oppressing individuals and groups—for example, when a young black man is stopped by a police officer simply because he is black. The value-based model does not intend to obscure the importance of identity in that sense, or the fact that in many cases, it is the category itself that triggers subordination. Because the greatest contribution of the value-based model is arguably its shift in rhetoric, it is least needed in instances where the basis for discrimination (or subordination) can easily be articulated or is irrational. Its role in those instances may be to emphasize that one cannot fairly see “race” or even “identity” as a universally applicable concept. In other words, even when one’s primary complaint is discrimination on the basis of identity, as in the example of the police stop above, that does not necessarily suggest that all discrimination on the basis of identity is undesirable. Thus, the value-based model can help elucidate and articulate why certain types of discrimination on the basis of identity are more troubling than others and have a more devastating impact on the community subject to those types of discrimination. It also avoids the conclusion that discriminating more broadly, among additional identity groups, would cure the problem posed by racial profiling. Viewing such interactions from the perspective of a value-based model may also be helpful in that it makes such incidents seem less like one-time occurrences or products of singular bad actors (or bad departments), but instead part of a larger story in which members of a group continually endure oppression in a number of different and overlapping ways.
Another possible concern is that a value-based approach risks over-fragmentation of identity groups and the possibility of infighting among subgroups that currently share the same identity marker (e.g., all of those encompassed within the term “black”). One might counter, acknowledging that identity and law are co-constituitive,
that it is preferable to force solidarity by grouping these subgroups together under one label. If one views the context in which equal protection operates as a zero-sum game, it is of course possible that subgroups would attempt to battle it out among themselves on the terms of the substantive criteria raised by the value-based model. Yet, if the zero-sum assumption is true (which it may not necessarily be), then under the current model, not everyone within the larger group can benefit either. It may be advantageous to utilize a model that will prioritize those who have the greatest barriers to access or who have been most severely subordinated rather than those in the current model who are most likely to emerge victorious—those who rise to the top of the hierarchy within the subgroup or who can most closely align themselves with the dominant narrative (e.g., lighter-skinned blacks and women adhering to male norms).
There may also be a concern that members of the majority could co-opt this model as well. But given its substantive nature and what it requires of plaintiffs in articulating and arguing their claims (e.g., a plaintiff cannot just claim discrimination on the basis of whiteness, but must then explain how that discrimination meets the substantive criteria under the model), the value-based model is less susceptible to the colorblindness brand of co-option that has emerged under present doctrine. As to what it might mean for a majority plaintiff to succeed on the argument that she has in fact been subject to a pattern of historical discrimination, for example, the response is two-fold. First, this model does allow for a white plaintiff, or a plaintiff of any race or gender, to make a contextualized argument that may be limited to a particular set of facts.
Second, the current model allows for the same type of manipulation—possibly distorting the nature of history and its underlying relevance—but does so under the guise of applying identity categories in a universal manner.
In his defense of a liberty-based dignity approach, Kenji Yoshino highlights a potential criticism that would also apply here: By requiring a case-by-case approach to protection and eliminating the ability to attain heightened protection across multiple contexts in one fell swoop, this model is weaker in countering subordination.
The two responses Yoshino provides have been touched upon above and would apply here as well. First, although equal protection does offer the potential for such sweeping protection, pragmatic realities—and the “closure of the heightened scrutiny canon of classifications”—have rendered that “jackpot” highly unlikely.
Second, given the existing model’s focus on comparative equality, remedies may level up or level down; it is possible, therefore, that discrimination may be eliminated by denying rather than providing entitlements to all.
Another pragmatic and inevitable critique may be that courts unwilling to advance justice under the current framework will be no more willing to do so under a different set of rules. In the last several decades, the Court has pulled back from declaring additional classes “suspect,”
due in part to a fear that too many other groups could then claim the same level of protection.
Any approach will demand the imposition of limits and, under the current framework, the Court’s response has been to curb the proliferation of suspect classifications. Yet, the definition of identity groups for purposes of equal protection will often be under- or overinclusive, risking the possibility that truly problematic instances of discrimination will fall on the unprotected side of the line. Thus, the Court’s decision to set limits based on identity may not align perfectly with prohibiting the most pernicious forms of discrimination. Similar line drawing would have to occur under a value-based approach, but because the analysis under such an approach is value-based rather than proxy-based, the basis for the line would be less arbitrary and more likely the result of substantive, reasoned judgments.
There are a number of other possible issues that could arise when thinking about implementation of the value-based approach—for example, the fact that arguing such substantive claims, which arguably impose a higher evidentiary burden, may require a large investment of time and resources, something poor and underresourced litigants do not have. Unfortunately, that specific concern is universal and not unique to this context—there are many other contexts where arguing a claim will require adequate resources to do so. With regard to those individuals, the value-based model at least offers a potential benefit in that it has greater capacity to recognize wealth (or the lack thereof) as a constitutional concern. There are certainly contexts in which poverty could meet the substantive criteria set forth in the value-based approach, whereas it has been foreclosed from suspect classification under the current model.
The primary project of this Essay, however, is not to address every question regarding implementation, of which there would undoubtedly be many. Instead, it is to convince readers of the initial premise that an identity-as-proxy jurisprudence is less preferable to one grounded in more structural concerns.
As stated above, the model suggested herein is not intended as a panacea; nor is it expected to consistently result in better outcomes from the perspective of minority interests. To a large extent, factors beyond the control of any legal framework will dictate the outcome of any given case. But a jurisprudence divorced from identity will at the very least avoid some of the harms described in Part I and strive for a substantive notion of equality less susceptible to manipulation or distortion.
Identity has played an integral part in the formation of equal protection doctrine and rightfully so. But as identity becomes more complex and the nature of discrimination evolves, so must the legal models used to assess and redress discrimination. Identity is fluid and yet a jurisprudence based on identity fixes certain definitions of identity in a manner that is far less so. Increasing legal recognition of racial and gender identities outside of the black–white and male–female binaries has placed greater emphasis on who is in and who is out, and whether the alleged perpetrator intended to discriminate against an individual specifically because of his or her identity, than on the more important question of why we are concerned about protecting against identity-based discrimination. Discrimination against certain identity groups is more pernicious not because the distinction is based on identity, but because of the role that distinction has played on the social and political landscape. It is the latter that should be the focus of equal protection doctrine to ensure that it effectively provides equal opportunity to all.
Although the doctrinal impetus for singling out race and gender as suspect classifications focused on the treatment of African Americans and women, current jurisprudence has reconceptualized identity-based jurisprudence as universally applicable. Thus, discrimination against any form of identity within a given identity category is viewed as equal. Yet, many do not perceive all forms of discrimination to be equal because law does not operate in a vacuum, but instead against a social and political backdrop that involves historical subordination and oppression of only some identity groups.
This Essay suggests that one way to ensure equal protection remains capable of dismantling existing hierarchies may be to reclaim—and possibly revisit—the justifications used to utilize identity as a means for implementing equal protection. While identity categories like race and gender are fluid and socially constructed, the social, political, and economic meaning of race and gender are far more rigid and persistent; thus, the latter is a more appropriate basis than the former for doctrinal analysis. By adopting an approach that is based not on identity categories but on the reasons why discrimination against such categories is particularly troubling, courts will be less likely to generate negative externalities for those who do not conform to dominant identity narratives, and will be more capable of recognizing the specific harms faced by victims of discrimination. Moreover, a return to first principles may prevent co-option of the doctrine by those less in need of protection. While identity’s influence is inescapable, and its importance in the sociopolitical arena undeniable, its ability to protect marginalized individuals within the context of the law has diminished. Reclaiming the normative values that lead doctrine to privilege certain identities has the potential to recalibrate the meaning of equal protection and provide for a doctrinal structure that is more flexible and more responsive to future claims under the Equal Protection Clause.