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...expanded natural groups idea seeks to protect groups against disadvantageous actions by protecting cultural practices or traits thought to "belong" to the groups. This approach to civil rights (equal protection doctrine and statutory anti-discrimination law) is troubling because it requires a legally articulated account of group difference. Such an account of group difference may be factually inaccurate or incomplete, may reinforce dangerous stereotypes and at the same time may become a self fulfilling prophesy as members of the group in question come to internalize the account of group difference that receives the judicial imprimatur. We should reject this approach to civil rights in favor of an expanded conception of an anti-discrimination norm and perhaps group indifferent rights to specific practices or characteristics.
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The moment in Owen Fiss's (1) article "Groups and the Equal Protection Clause" that made me want to jump ship came on page 148 (though he had been building up to it for several pages). There he writes: "There are natural classes, or social groups, in American society and blacks are such a group. Blacks are as a group; they view themselves as a group; their identity is in large part determined by membership in the group..."
Before I can explain why I wanted to jump (and why I ultimately decided to forgo mutiny in favor of loyal insubordination), we'll need to review the central thesis of Fiss's article. Fiss advances the idea of "natural groups" in service of what was, in 1975 when the article was published, a new way of thinking about the Equal Protection Clause: what he calls the "group disadvantaging principle." As against the then (and now) prevailing idea that the equal protection clause is an almost procedural mandate that prohibits government from distinguishing individuals on certain bases (the "anti classification" or "anti discrimination" principle) Fiss advances the idea that the clause embodies a substantive mandate, a sort of Hippocratic injunction vis-a-vis certain social groups: do no harm.
Fiss argues that the group disadvantaging principle, unlike the anti discrimination principle would invalidate non discriminatory state action that has the effect of disadvantaging minority groups. The most obvious citation here is Shelly v. Kraemer, in which the Court invalidated the enforcement of private racially restrictive covenants as discriminatory state action. There are many other examples of disadvantaging but formally race-neutral state action: the granting of a liquor license to a racially exclusive bar in Moose Lodge, and the decision of Jackson, Mississippi, to close a public swimming pool rather than to desegregate it in Palmer v. Thompson.
These cases support Fiss' group disadvantaging principle as a descriptive and as a normative matter: the Courts have in fact invalidated formally neutral state action (Shelly), and it is easy to see that such invalidation is consistent with the substantive commitments underlying the equal protection clause, even--perhaps especially--in the context of those cases in which courts fail to invalidate formally neutral but effectively racist state action (Palmer and Moose Lodge). But it bears noting that these "non discriminatory" but group disadvantaging state action cases can be re described as discrimination cases. Contemporaneously with Fiss's article, Paul Brest authored a left-liberal defense of the anti-discrimination principle (2), arguing that cases such as Palmer are appropriately understood as involving actionable discriminatory intent: the facially race neutral decision to close the public pool, coming hard on the heels of an order to desegregate it, was motivated by the race conscious desire to avoid an integrated pool (even if it meant no one in Jackson got to practice their swan dive.)
Fiss's objection to this formulation mirrors Justice Black's opinion in Palmer: the intent standard presents potentially insurmountable evidentiary questions. Did the town close the pools to avoid integrating them or simply to save money? But as Brest notes this evidentiary concern was hypothetical in Palmer: the evidence of racially discriminatory intent was overwhelming.
One might add that the intent formulation goes to the heart of what is normatively objectionable about the decision and hence why Fiss chooses it as an example. If we were really in doubt as the to racial motivation of the city--if it was likely that the city decided to close the pool in order to balance the municipal budget--the decision would not be objectionable on equal protection grounds. In fact, since everyone in Jackson would suffer in the heat or incur the expense of finding private pool facilities it would not be clear that the decision to close the pool did in fact disadvantage blacks as a group unless one covertly assumes the underlying discriminatory intent and from that concludes that blacks suffered a stigmatic injury.
Similarly, a classic explanation of the opinion in Shelly is that racially restrictive covenants served a public function: were simply a continuation of racially restrictive zoning by other means. The state was not neutral but active and complicit in this project: local property owners were encouraged to recreate the formal segregation of racial zoning through covenants, federal mortgage guarantees favored racial covenants and were conditioned on racial segregation and courts often enforced racial covenants which they should have held invalid under common law doctrine of abandonment, acquiescence or changed circumstances (the covenant at issue in Shelly was arguably such a covenant). Again, discriminatory intent can reasonably be inferred from the circumstances surrounding the enforcement of racially restrictive covenants.
The group disadvantaging principle may appear to acquire traction for progressive social justice in the area of affirmative action. I hardly need to elaborate on the fact that, for many, the norm of anti discrimination not only does not support affirmative action, it prohibits it. A group disadvantage norm, by contrast would presumably support well-designed affirmative action programs. Even here however, there is room for debate: in Brest's view the anti discrimination principle would allow for judicial imposition of affirmative action where it ameliorates race specific harms caused by past discrimination, and would allow affirmative action even in the absence of any link to past discrimination when adopted voluntarily by "an institution enjoying more or less plenary policymaking authority." (3)
I rehearse this decades-old debate in order to suggest an indeterminacy at the level of principle. The anti discrimination norm is (or at least was) quite malleable and need not have taken the rather conservative form imposed on it by the Burger and Rehnquist Courts. More controversially, one could even argue that Fiss's group disadvantaging norm is not an alternative to the anti-discrimination norm but rather a variant of it. The...
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