Justice Thomas, Brown v. Board of Education, and Post-Racial Determinism
Washburn Law Journal, Vol. 53, 2014
University of Louisville School of Law Legal Studies Research Paper Series No. 2015-02
28 Pages Posted: 28 Nov 2014
Date Written: November 26, 2014
Abstract
Post-racial determinism describes the Court’s formalistic adherence to a set analytical framework built upon three conceptual premises: (i) all claims for transformative racial justice are presumptively invalid; thus, reverse discrimination claims advanced by "injured" whites are virtually guaranteed success; (ii) anti-discrimination law has largely achieved its purpose so an "expansive" view of constitutional protections must be rejected and replaced by a narrow view that ultimately leads to the reversal of these "unnecessary" race laws; and (iii) the shift from colorblind to post-racial constitutionalism means that race should never be a factor in institutional decision-making; and, when it is, it is appropriate for the Court to intervene and "correct" the process notwithstanding the fact that the political community has chosen to pursue a race-conscious remedial approach. Advancing a critique of the Court’s post-racial constitutionalism, with an emphasis on Justice Thomas’ concurrence in Parents Involved, this symposium Article argues that Justice Thomas’ racial views undermine the historical and substantive legacy of Brown.
Keywords: Equal Protection, Colorblind constitutionalism, post-racial constitutionalism, school desegregation, integration
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