On this 70th anniversary of Brown v. Board of Education, I’m pleased to highlight a very interesting new law-review article by Yale law professor Justin Driver, “The Strange Career of Antisubordination.”
As Driver explains, there has been a grand debate over whether Brown should be understood as embracing an anti-classification theory of the Equal Protection Clause or an anti-subordination theory. Under the anti-classification theory, the Equal Protection Clause forbids the government from treating people differently based on race. Under the anti-subordination theory, the Equal Protection Clause forbids only those differential racial treatments that are deemed to perpetuate racial subordination—e.g., by treating members of a race as racially inferior. Liberal scholars have relied on the anti-subordination theory to justify “affirmative action”—discrimination in favor of certain racial and ethnic minorities. Indeed, Driver characterizes the idea that affirmative action is constitutionally permissible as “the central pillar of modern legal liberalism.” (His emphasis.)
Driver, an unabashed liberal, is an intense critic of the Supreme Court’s recent “cataclysmic” and “misbegotten” ruling against racial preferences in college admissions in SFFA v. Harvard. But his article undertakes to show that the anti-subordination theory so widely invoked against that ruling “is a far more protean concept than my fellow legal liberals typically allow.”
The “career of antisubordination has been strange,” he argues, “for two central reasons.” First, its “forgotten roots” in “some of constitutional law’s most notorious opinions”—including Plessy v. Ferguson and Korematsu v. United States—illustrate its malleability. Second, “many conservatives who detest affirmative action have often contended that the programs themselves subordinate Black people,” but liberal scholars “have steadfastly refused to treat these arguments with the seriousness that they deserve.” Indeed, Driver points out even the very liberal Justice William Douglas and “left-of-center scholars” Stephen Carter, Randall Kennedy, and even Derrick Bell have criticized affirmative-action policies on the ground that they place “a stamp of inferiority” on their supposed beneficiaries (Douglas’s words) and “reinforce the presumption of inferiority” (Bell’s).
Driver argues that liberal supporters of the anti-subordination theory should no longer “close their eyes to the substantial claims” that “formidable legal theorists of various stripes” have made against affirmative action on the very ground of anti-subordination theory. In exploring “antisubordination’s deeply contested nature,” he aims to “spark[] dialogue among traditional antisubordination theorists regarding how the concept might be defended, refined, and elaborated.”