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Hastings Constitutional Law Quarterly

Abstract

We address a recurring problem in movement scholarship and activism: why do some civil rights organizations persist in promoting themselves as advocates of equal protection when street activists rarely mention it, and lawyers know that litigation brought under that clause almost always loses? Try to recall the last time you heard of a street protest by a group—say Mexican-American school children in Tucson, Arizona, Black victims of police violence, or military women subjected to sexual harassment— proceeding under the banner of equal protection. Or think when you last read of a lawyer who brought and won a case for a client alleging that some form of official treatment violated that guarantee because the official action fell unequally on the client’s group vis-à-vis another.

If these causes of action are practically dead letters, why do institutions continue to evoke them on official occasions, fundraising appeals, and their websites? We show how equal protection has receded in importance as a means of advancing the interests of outsider groups, yet traditional organizations that advertise themselves as representing those interests continue to be wedded to it. Drawing on critical race scholarship, including our own, we show how better means are available for advancing the goals of these groups, including street demonstrations, struggle, righteous indignation, and voting. Institutions such as the National Association for the Advancement of Colored People (“NAACP”) know this yet continue to press their case with unceasing fervor. We offer an explanation for why this is so and conclude by urging methods that are likely to prove more productive.

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