Hastings Constitutional Law Quarterly


Espousing colorblindness as the defining feature of the Equal Protection Clause, a bare majority of the Justices of the United States Supreme Court has outlawed almost all race and gender-conscious government programs such as affirmative action, legislative redistricting and school desegregation. The doctrinal foundation of colorblindness is government neutrality. Colorblindness also envisions vigorous enforcement of anti-discrimination laws as the substitute for race-conscious measures to achieve racial equality. However, equal protection neutrality remains amorphous, undefined and structureless, and it often provides a safe harbor for race disadvantaging laws that do not measure up to the Court's standard of invidious discrimination. Moreover, the securement of individual and group-wide remedies for racial and gender discrimination is rendered difficult by the prevailing theories of discriminatory intent and disparate impact.

This Article analyzes the doctrinal deficiencies of equal protection neutrality as currently conceived and applied. It argues that the ultimate success of the Court's pursuit of a colorblind constitution hinges not only on its ability to objectively define neutrality by grounding it on the principle of absolute governmental impartiality, but also on its willingness to formulate an analytical structure to scrutinize claims of neutrality with the aid of properly allocated proof burdens. This Article maintains that a clearly defined neutrality concept will prevent or discourage the creation and enforcement of laws which disproportionately disadvantage racial minorities, women and other vulnerable members of our society.