The Equal Protection Clause of the Fourteenth Amendment serves as the most important words in the Constitution to ensure equality in the United States. However, there are two prominent interpretations of the scope of the Fourteenth Amendment: the Anti-Classification and the Anti-Subordination views.[i] The Anti-Classification view, currently employed by the Supreme Court, contends that any use of racial classifications is inherently wrong and should be prohibited under the Constitution. The simplest understanding of an Anti-Classification view is that the Constitution should be “colorblind” and that laws should avoid making racial distinctions. Conversely, the Anti-Subordination view asserts that the Fourteenth Amendment should be focused on dissolving any inherent social systems of racial hierarchy that exist and to help ensure that marginalized groups are not continuously subordinated, even if it means discriminating on the basis of race.[ii]
The Supreme Court should adopt a more Anti-Subordination view of the Fourteenth Amendment as it allows for a more holistic approach to truly ensuring equal protection under the laws for all kinds of individuals. A major logical fallacy is apparent when considering the ramifications that the Anti-Classification view has given rise to when the government or state actors attempt to rectify social inequality affirmatively.[iii] The Court in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College effectively struck down affirmative action and race-based considerations for admission to colleges and universities.[iv] Based on the holding of this case, the Court constructively pointed out that the government and state actors must satisfy strict scrutiny to affirmatively remedy discrimination and social burdens that marginalized groups have faced, which is close to impossible to achieve since strict scrutiny is such a high standard to satisfy. On the other hand, when attempting to affirmatively remedy discrimination and social burdens of less marginalized groups that are subject to only rational basis review, the government would be deferred to by the Court and be able to more easily affirmatively protect a less marginalized group than those who are subject to strict scrutiny.
The Anti-Classification approach rests on the idea that all classifications based on race are equally harmful.[v] Meaning that both statutes that look to remedy past harms experienced by racial groups and statutes that inflict harm on racial groups are both viewed in the same negative light. In Parents Involved in Community Schools v. Seattle School District No. 1, Chief Justice John Roberts, writing for the majority, struck down a scheme that would have made student bodies more diverse on the basis of race in public schools.[vi] The Chief Justice famously wrote, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[vii] While the sentiment behind what The Chief Justice is saying is accurate in a perfect world, a “colorblind” view of the Fourteenth Amendment does not actively aid in remedying the issues presented by the modern world, it merely sits back and allows the issues to continue to exist.
Additionally, when considering the historical purpose of the Fourteenth Amendment, the amendment was created with the intention to remedy the systematic subjugation of Black Americans. The drafters did not draft the amendment with the intention of eliminating racial distinctions in the law; rather, they intended to end the legalized oppression of a historically oppressed group of people.[viii] When the Court asserts that it should have a “colorblind” view, it disregards the context in which the Fourteenth Amendment was written.
Conversely, an Anti-Subordination view provides a more logical and historically accurate interpretation of the Fourteenth Amendment. The three key themes that are prevalent in the Anti-Subordination view are: (1) the existence of a group status that perpetuates subordination, (2) group history that includes discrimination or subordination, and (3) group political powerlessness.[ix] The analysis to determine whether a law violates the Fourteenth Amendment is not predicated on whether the law classifies individuals by race or any other classification, but rather whether the law or policy perpetuates or dismantles systems of hierarchy that are present in society. Allowing history to inform the present is the analysis that the Anti-Subordination view is keen on, which allows for a more holistic and informed assessment to be made regarding how a law or policy would impact “discrete and insular minorities.”[x]
The constriction that is imposed by the tiers of scrutiny would not hinder the Court’s view and ability to remedy issues, like they do with the employment of an Anti-Classification view. An Anti-Subordination view of the Fourteenth Amendment most importantly allows for a flexible and context-sensitive approach that would enable the Court to remedy systematic inequality while still maintaining a strong commitment to Equal Protection. Anti-Subordination allows for a race-conscious policy that may be facially discriminatory so long as the policy or law would be conducive to promoting substantive equality.
In a hypothetical world, should the government ever want to impose a policy or law that mandates that student bodies of publicly funded universities be proportionally representative of ethnic groups according to the overall national population, strict scrutiny would have to be satisfied as it is a classification based on ethnicity. This would be difficult to satisfy as the Court has ruled that a diverse student body is not a compelling governmental interest. Therefore, this legislation would fail as a violation of equal protection.[xi] Alternatively, the government could impose a policy or pass a bill mandating that half of all student bodies in publicly funded universities consisted of students over the age of fifty since discrimination on the basis of age is subject to rational basis. Effectively meaning that the legislation would automatically pass, considering rational basis is highly deferential to the government.
This logical fallacy is what an Anti-Subordination view would solve. The tiers of scrutiny, along with a strict Anti-Classification view, serve a critical function in upholding Equal Protection against discrimination. However, when the government or state actors attempt to affirmatively protect individuals on the basis of their minority status, no matter the classification, the tiers of scrutiny present a paradox that precludes the government from being able to solve the issues faced by these groups effectively. This is where a more contextual and pragmatic approach to Equal Protection would be more conducive to solving the issues that are presented by society. The Anti-Classification view that has been employed by the Court may be ideal in theory, but Anti-Subordination offers a more grounded, common-sense solution to the real societal problems we face today. By adopting the Anti-Subordination view, the Court would not continue to sit back and merely observe the persistence of inequality but take active steps to dismantle systemic barriers which would ultimately improve the overall quality of jurisprudence in the United States.
[i] See generally Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9 (2003) (highlighting the differences between the two schools of thought and providing the historical context behind each of them); see also Abigail Nurse, Anti-Subordination in the Equal Protection Clause: A Case Study, 89 N.Y.U. L. Rev. 293 (2014) (explaining the differences between the anti-classification and anti-subordination views of the Equal Protection Clause of the 14th Amendment).
[ii] See Nurse, supra note i, at 300 (explaining the foundation of the anti-subordination view of the Equal Protection clause of the 14th Amendment).
[iii] See generally Students for Fair Admissions, Inc. v. Pres. & Fellows of Harv. Coll., 600 U.S. 181 (2023) (holding that state actors, such as universities, may not discriminate on the basis of race even when attempting to remedy social inequalities unless strict scrutiny can be satisfied).
[iv] See id. at 230 (holding that the manner in which the University of North Carolina and Harvard were conducting their admissions policies were inconsistent with the Equal Protection Clause).
[v] See Nurse, supra note i, at 299 (explaining that the Anti-Classification view rests on not making any classifications on the basis of race)
[vi] See Students for Fair Admissions, Inc., 600 U.S. at 231 (striking down race-based admissions for the sake of having a more diverse student body).
[vii] Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).
[viii] See Brian T. Fitzpatrick & Theodore M. Shaw, The Equal Protection Clause: Common Interpretation, Nat’l Const. Ctr, https://constitutioncenter.org/the-constitution/articles/amendment-xiv/clauses/702 (last visited Oct. 17, 2024) (stating that “there is little doubt what the Equal Protection Clause was intended to do: stop states from discriminating against blacks.”).
[ix] See Nurse, supra note i, at 300.
[x] See United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
[xi] See generally Students for Fair Admissions, Inc., 600 U.S. 181 (concluding that a diverse student body was not a sufficient compelling governmental interest to satisfy strict scrutiny).
