Law and Race Commons^™

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Faculty Articles

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors generally remain colorblind. The colorblindness doctrine has led to the judicial invalidation of policies designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect "group rights. "

Constitutional law theorists have criticized these aspects of equal protection doctrine. Recently, however, some …

Majority Politics And Race Based Remedies, Darren L. Hutchinson

Faculty Articles

This Essay applies the principles of social movement theory and analyzes the legal status of race-based remedies. Many scholars have debated the constitutionality and efficacy of affirmative action, the appropriateness of race-consciousness (from legal and social perspectives) and the legitimacy of structural judicial remedies for various types of discrimination. This paper will add to this literature by demonstrating the influence of conservative race politics and ideology on Court doctrine concerning affirmative action and other race-based remedies. In particular, this Essay will demonstrate that, consistent with broader political trends, the Court disfavors governmental usage of race as a remedy for discrimination …

Progressive Race Blindness: Individual Identity, Group Politics, And Reform, Darren L. Hutchinson

Faculty Articles

This Article responds to the advocates of "progressive race blindness" with several critiques of their central claims. Part I examines the contours of progressive race blindness in greater detail, giving centrality to the emergence of this theory in legal scholarship. Part I sets forth the common themes articulated in progressive race blindness arguments and highlights important differences among its proponents. Part II isolates several problems with the progressive race blindness literature and demonstrates that these weaknesses make the literature unhelpful as a political or legal theory and even dangerous to the cause of antiracism. Part III offers suggestions for future …