Excerpted from: Wendy Parker, Recognizing Discrimination: Lessons from White Plaintiffs, 65 Florida Law Review 1871-1915 (December 2013)
When will the law deem someone a victim of race discrimination? Traditionally, the answer was different treatment that caused substantive harm. This Article calls this "substantive discrimination." For example, the Supreme Court doomed the state statutes challenged in Brown v. Board of Education (Brown I) not only because they assigned the plaintiffs to schools because of their "Negro" race (a process harm), but also because that race-based assignment produced other harms (substantive ones). The Warren Court contextualized the process harm in its substantive effects: the "feeling of inferiority" created by de jure segregation, the inequality inherent in separate education, and the importance of education, which is "perhaps the most important function of state and local governments." The assignment based on race did not create the constitutional violation by itself; the Warren Court linked that procedure with substantive harms.
The adoption of substantive discrimination was not unique to the liberal Warren Court. Justice Harlan, in his famous dissent in Plessy v. Ferguson, connected the harm of racially separate railroad cars with the creation of a caste system. The Rehnquist Court continued that tradition, even as it shifted the Court to a more color-blind interpretation of the Equal Protection Clause. It adopted color-blind principles for their association with positive individual and social values.
The Roberts Court has changed, however, the meaning of discrimination in a series of cases with white plaintiffs claiming race discrimination. Parents Involved, a K-12 student assignment case, marked the start of this shift. The 2013 opinion in Fisher, an affirmative action in university admissions case, continued that evolution. In these cases and others, the Roberts Court continued to endorse the color blindness supported by the Rehnquist Court, but with one important variation. It is now possible for illegal discrimination to arise solely from the process of different treatment, without proof of any attending substantive harm. For example, the Roberts Court defined the harm to the white plaintiffs in Parents Involved as only different treatment during the process of deciding school assignment. In turn, this allowed Abigail Noel Fisher to sue the University of Texas for race discrimination, even if she would not have been admitted if a minority applicant. This Article defines this as "process discrimination."
I once joined with those lamenting the Supreme Court's decision in Parents Involved. Now, however, a silver lining to the dark cloud of Parents Involved can be found. If any racial attentiveness in a challenged process alone violates the Equal Protection Clause, regardless of the lack of independent harm from that unequal procedure, traditional-discrimination plaintiffs benefit. Adopting a vigorous definition of color-blind can work to the advantage of plaintiffs of all races, and not just Ms. Fisher. This Article seeks to reveal that mutual advantage.
Consider a manager, working for a state, who fired a Latino worker with one single utterance negative to his Latino heritage. Any attending lawsuit would traditionally ask whether the worker was fired because of ethnicity. That single utterance would do little in demonstrating why the worker was fired. Instead, the issue would be whether the Latino worker deserved to be fired, or whether the plaintiff's ethnicity caused the firing.
Parents Involved shifted the focus away from the firing issue to a process question: Did the manager treat the Latino worker differently than a non-Latino worker during the firing process? Would the manager have made the statement to a white worker? If not, then the manager was *1875 discriminatory under the reasoning of Parents Involved. Likewise, the question in Fisher is now whether Ms. Fisher was treated differently during the admissions process-not whether she would have been admitted if she were African-American or Latino.
The Roberts Court was able to make this change to how it conceptualizes discrimination, in part, because Parents Involved is neither a school desegregation case nor an affirmative action case. It occupies a new space in our so-called post-racial society.
The difficulty with the hypothetical Latino employee is causation and damages. What exactly are the damages caused by the ethnically hostile statement? This Article explores how the process discrimination recognized in Parents Involved affects these questions of causation and injury in traditional discrimination cases. This Article argues that the Court's adoption of process discrimination in reverse discrimination cases expands the definition of discriminatory injury, and that minority plaintiffs should use that definition-if the remedy is carefully crafted.
This argument proceeds in three parts. Part I reveals how the Supreme Court created process-only discrimination in Parents Involved. This Article argues that the Supreme Court devised an unconditional version of color-blind jurisprudence to expand constitutional injury to include any different treatment, including process-only claims. Part I ends with exploring how this enables white plaintiffs to win their reverse discrimination cases. Specifically, this Article predicts that Ms. Fisher will one day win her case against the University of Texas, even if she would not have been admitted if she were African-American or Latino.
Part II turns to the effect of the expanded definition of constitutional injury on claims by minority plaintiffs. It focuses on the difficulty of proving discriminatory intent, which is a key component of any discrimination claim. The expanded definition of injury will make some aspects of discriminatory intent easier to prove for minority plaintiffs. Yet, even after Parents Involved, nonwhite plaintiffs will still struggle to demonstrate discriminatory intent.
Part III argues that the process discrimination found in Parents Involved is at odds with at least three principles concerning what counts as a discrimination injury-the racial harassment definition, stray remarks doctrine, and same decision defense. All three principles permit certain *1876 instances of explicitly racial conduct and are inconsistent with Parents Involved's command of absolute color blindness. Lastly, this Part recognizes that process-only injuries will likely result in more limited, but still valuable, remedies.
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The Roberts Court's commitment to color-blind jurisprudence is stronger than any previous Court's, including the Rehnquist Court. It has defined white plaintiffs as victims of race discrimination when the process of decision making treated them differently because of their race, apart from any other attending substantive injury. That expanded definition of injury should have important consequences for minority plaintiffs as well. While it eases a bit the high burden nonwhite plaintiffs have of proving discriminatory intent, Parents Involved should provide additional constitutional protections in proving injury.
James A. Webster Professor of Public Law, Wake Forest University School of Law.