The Right to Inequality: Conservative Politics and Precedent Collide

Authors

Jonathan Feingold, Boston University School of LawFollow

Document Type

Article

Publication Date

12-2024

ISSN

0010-6151

Publisher

University of Connecticut School of Law

Language

en-US

Abstract

The “end of affirmative action” is the beginning of this story. In Students for Fair Admissions v. Harvard (SFFA), the Supreme Court struck a near fatal blow to race-consciousness. Many institutions have since pivoted to “race neutral alternatives.” This is a natural turn. But one that faces immediate headwinds.

The same entities that demanded Harvard pursue racial diversity through colorblind means have sued public high schools for doing just that. These litigants assert a “right to inequality”—a theory that would pit the equal protection clause against equality itself. Even if normatively jarring, a right to inequality might seem a natural extension of SFFA and decades of conservative caselaw hostile to remedial reform.

That sentiment is understandable. But it misreads the caselaw and overlooks a striking irony. The Supreme Court’s fifty-year war on affirmative action culminated in SFFA. But the same caselaw that precipitated affirmative action’s premature demise condones colorblind remedies—the precise conduct a right to inequality would preclude. To enshrine such a right, sitting conservative Justices would have to abandon their own principles and precedent. This includes longstanding disregard for theories of equality that center groups and outcomes—both of which animate the right to inequality lawsuits. This means that conservative litigants, should they prevail, would benefit from concerns long associated with progressive causes. One question, therefore, is whether a right to inequality—because it attends to disparate impacts—could re-empower racial justice advocates to challenge colorblind policies that conservative Justices have long shielded from legal scrutiny.

Recommended Citation

Jonathan Feingold, The Right to Inequality: Conservative Politics and Precedent Collide , in 57 Connecticut Law Review 1 (2024).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3909