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Anti-discrimination principle, Equal protection


Civil Rights and Discrimination | Constitutional Law


Over a quarter century ago, Professor Fiss proposed that the constitutional principle of equal protection should be interpreted to prohibit laws or official practices that aggravate or perpetuate the subordination of specially disadvantaged groups. Fiss thought that the anti-subordination principle could more readily justify results he believed normatively attractive than could the rival, anti-discrimination principle. In particular, anti-subordination would enable the courts to invalidate facially neutral laws that have the effect of disadvantaging a subordinate group and also enable them to uphold facially race-based laws aimed at ameliorating the condition of a subordinate group. Since Fiss’s landmark article appeared, Supreme Court doctrine has, at every turn, rejected his anti-subordination principle in favor of a narrower, more formalistic anti-discrimination principle. In the Court’s view, the equal protection guarantee primarily targets discrimination against individuals on a small number of forbidden grounds. However, the anti-discrimination principle as such should not be taxed with the Court’s adoption of equal protection hyper-formalism in the name of anti-discrimination. Both anti-discrimination and anti-subordination are sufficiently open-ended conceptions of equality to produce a variety of morally attractive and not-so-attractive outcomes.

Publication Citation

Issues in Legal Scholarship (2002)