“The More Things Change . . .”: New Moves for Legitimizing Racial Discrimination in a “Post-Race” World

By Mario L. Barnes. Full text here.

In his foundational Minnesota Law Review article, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, Critical Legal Studies (CLS) scholar Alan D. Freeman reviewed 25 years of U.S. Supreme Court jurisprudence with the goal of analyzing the disjuncture between the statutory and constitutional prohibition of racial discrimination and the continuing subordination of racial minorities, achieved partially through law’s complicity. His analysis asserted that this regrettable circumstance occurred because the Court typically sought to address violations of antidiscrimination principles rather than remedies and focused principally on perpetrator conduct rather than the conditions of victims.  In myriad areas from education, to voting, to employment, Freeman repeatedly demonstrated how this framework simultaneously instantiated racial disadvantage for minorities while bolstering societal moral claims to providing fair treatment to all.

In the nearly 40 years since he published this important article, despite the improvements in some areas of racial relations—to include the election of the country’s first African-American president—the disjuncture Professor Freeman identified remains. Such gaps for people of color between law and lived experience, however, are now regarded by many as not arising out of racial discrimination at all. Rather, the aspirational colorblindness courts employed to rationalize concerning themselves with a requirement of discriminatory intent instead of a focus on disparate racial outcomes during the periods Professor Freeman analyzed, has been treated as fully realized in the Court’s modern “post-race” approach to antidiscrimination.

This Article picks up on Professor Freeman’s theme and approach, to consider key modern antidiscrimination cases in the areas of education, employment and voting. In this now “post-race” era, this Article argues that in a world where race has presumptively lost its salience, that problems Professor Freeman identified have worsened as courts appear even more drawn to focusing on violation over remedy, formal over substantive equality, and peculiarly using antidiscrimination frames to legitimize discrimination. Just as Professor Freeman foregrounded CLS principles in his analysis, this Article similarly centers its analysis in the foundational theories and concepts from the prominent CLS successor movement to have arisen since Professor Freeman published his article in 1978—Critical Race Theory (CRT).