Fordham Law


A Watered-Down Vision of Equality

Tanya Hernandez in The New York Times, June 26, 2013

Media Source

Tanya Hernández teaches comparative employment discrimination at Fordham University School of Law and is the author of “Racial Subordination in Latin America.”

Despite Justice John Roberts’s insistence in the Shelby Voting Rights Act decision that historical perspectives about racism are no longer relevant, the 2012-13 Supreme Court term seems to have been guided by a limited, Jim Crow-era definition of discrimination – concerned only with the formality of legal segregation. This would explain the contrasting support for and evisceration of civil rights across the cases decided this term.

This view would dictate that discrimination exists when the law is directly implicated in separating groups of people for the purposes of imposing stigma, parallel to Jim Crow segregation. Any other manifestation of harm against individuals based on their socially derided group status is irrelevant as long as “the law” is formally neutral. The formality of the law is considered paramount over the actual unequal status of disfavored groups.

One can celebrate the victories for gay people while at the same time decrying this term's sadly limited vision of justice for all.
This formalistic and historically limited picture of discrimination thus explains the civil rights success in the gay rights cases and the simultaneous constriction of the racial equality cases. In Windsor, Justice Anthony Kennedy notes that the Defense of Marriage Act’s “avowed purpose and practical effect are to impose a disadvantage, a separate status, and so stigma upon all who enter into same-sex marriages.” In Perry, the California sponsors of the Proposition 8 same-sex marriage ban were understood to be inappropriately attempting to assert a status as agents of the state, which formal law accords only to public officials. The formality of legal categories reigns in both decisions.

One can celebrate the victories for gay people and all of humanity while at the same time decrying the decisions’ limited vision of equality. That limited vision eroded the pursuit of equality in this term’s racial justice cases.

Indeed, the 2012-13 Supreme Court term simply continues what has now been three decades of eroding the achievements of the civil rights movement with incremental procedural court rulings that whittle away substantive racial equality while leaving intact an edifice of formal equality. Thus the Fisher v. Texas case reaffirms the constitutionality of affirmative action while at the same time narrowing the ability to effectively pursue racial equality with race-conscious policies. Likewise, in the Shelby County v. Holder case, the court retained (in the abstract) the Voting Rights Act’s ability to monitor the voting changes of jurisdictions with a persistent history of racial voting discrimination, but (in practice) declared unconstitutional the very coverage formula that has furthered our democracy.

The employment discrimination doctrine was similarly gutted this year, with the University of Texas Southwestern Medical Center v. Nasser decision to place additional proof burdens on victims who experience employer retaliation when they raise the issue of discrimination – even though protection from employer retaliation lies at the heart of protection from discrimination.

In short, the Supreme Court now endorses a pretty facade of civil rights, concerned only with whether the law directly segregates society into groups like old-fashioned Jim Crow laws. This term’s takeaway message is that superficial equality law is more important than the concrete provisions that engage the ugliness of present-day, actual discrimination.

What we are seeing is not the end of the achievements of the civil rights movement but the erosion of their efficacy and grounding in the realities of persistent inequality, simply because the Supreme Court majority has an extraordinarily limited view of what counts as discrimination. The outlook behind this month’s rulings discounts all the ways in which we continue to live in a highly racialized and structurally unequal society – even after the law took down the “whites only” and “heterosexuals only” signs.