Agency, Equality, and Antidiscrimination Law

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state\u27s ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in practice it has yet to identify such a policy since it adopted strict scrutiny across the board. In its equal protection analysis of gender, the Court has also moved toward a stricter level of scrutiny, calling into question the possibility of benign uses of gender as well. As the Supreme Court narrowed the scope of benign race-based categories permitted by the Constitution, political forces have launched attacks on affirmative action policies at both the state and federal levels. Some commentators, perhaps a minority, have argued that the Equal Protection Clause should be read to require the use of race-conscious policies when necessary to eradicate or remedy the most serious consequences of racial inequality. Others have argued that such policies, though not required, should be permitted when duly adopted by the majority of the populace to promote the interests of an historically oppressed minority. Still others, including now a majority of the Supreme Court, take the view that the Constitution forbids virtually all explicit uses of race by the state. In this Essay, we do not enter this debate directly. Rather, we attempt to explore the reasons behind the increasing acceptance of a norm of color-blindness-both politically and legally-and locate those reasons within a particular liberal conception of the limited, neutral state. We then attempt to demonstrate that the movement toward an increasingly strict view of discrimination as simply color consciousness has not been limited to the equal protection context