Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

10-30-2020

ISSN

1939-859X

Publisher

University of Chicago Law School

Language

en-US

Abstract

In An Intersectional Critique of Tiers of Scrutiny, Professors Devon Carbado and Kimberlé Crenshaw infuse affirmative action with an overdue dose of intersectionality theory. Their intervention, which highlights the disfavored remedial status of Black women, exposes equality law as an unmarked intersectional project that “privileges the intersectional identities of white antidiscrimination claimants.”

This latent racial privilege rests on two doctrinal pillars. First, single-axis tiers of scrutiny, which force claimants and courts to view discrimination in either/or terms (that is, race-based or gender-based or class-based), contravene intersectionality’s core insight that “people live their lives co-constitutively as ‘both/and,’ rather than fragmentarily as ‘either/or.’” Equal-protection doctrine, we might say, is “intersectionality-blind.”

Second, intersectional blindness exists alongside colorblindness—a racial ideology hostile to race-conscious remedies. This pairing yields an equality regime that favors intersectional subjects whose racial identity is decoupled from their disadvantage (e.g., poor whites) and those who reap racial advantage through the daily churn of ostensibly neutral “market forces” (e.g., class-privileged whites).

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