Postracial Remedies

Abstract

The Supreme Court’s equal protection jurisprudence is decidedly postracial. The Court has restricted the Equal Protection Clause to intentional discrimination by the government, concluding that the Constitution does not prohibit private acts of discrimination and rejecting challenges based on disparate impact, even when statistical analysis indicates that race is likely a factor. It has held that remedying the effects of past societal discrimination is an insufficient basis for race-specific remedies such as affirmative action. It has also ended remedies of this sort designed to combat previous state-sponsored racial discrimination, such as court-ordered desegregation measures in the schools and the preclearance provisions of the Voting Rights Act. Constitutional litigation currently provides little or no recourse to address racial disparities in outcome that are not demonstrably caused by intentional governmental racial discrimination, and race-specific remedies face a level of judicial scrutiny that is especially difficult to satisfy.

This Article asks what can be done under these circumstances to ameliorate racial inequality in a manner that is politically feasible and does not run afoul of constitutional limits. It argues that “postracial remedies” are a necessary component of an effective strategy to combat racial disparities on leading indicators such as wealth, incarceration, education, and housing. Postracial remedies seek pragmatic solutions for the economic, social, and structural problems that disproportionately burden blacks in the United States. These remedies are not race specific because they do not treat people differently based on race, but they are race sensitive because they target the manifestations of racial inequality and recognize the salience of race in today’s political and legal environment. This approach, which seeks legally achievable remedies, is also consistent with “antibalkanization” perspectives associated with “race moderates” whose civil rights equal protection jurisprudence is motivated, in part, by a concern with preserving social cohesion. Although postracial remedies are necessary within this postracial ethos, pursuing them does not require acceptance of the postracial narrative or the abandonment of advocacy to combat ongoing racial discrimination.