Excerpted From: David Simson, Hope Dies Last: The Progressive Potential and Regressive Reality of the Anti-balkanization Approach to Racial Equality, 30 William & Mary Bill of Rights Journal 613 (March 2022) (399 Footnotes) (Full Document)


DavidsimsonEvents over the last two years have put the following into sharp relief: (1) Americans are polarized and divided over what is right and wrong, and they view members of “the other side” with hostility; and (2) race remains a major factor in those divisions and hostilities, and racism and racial inequality fail to abate. Unsurprisingly, then, in his speech after his election victory president-elect Joe Biden spoke about the need to address both issues and suggested that his administration would pursue the following solutions: As to (1) seek “not to divide but unify” by “put[ting] away the harsh rhetoric, lower[ing] the temperature,” and finding “time to heal”; and (2) wage a “battle to achieve racial justice and root out systemic racism.” He has repeated similar themes in various contexts since then.

Both goals--(1) avoiding division, conflict, and hostility, and (2) remedying systemic racism--seem eminently reasonable and important, especially in the current climate. But are they necessarily compatible? Or may pursuing one goal potentially clash with, and perhaps require limits on, the pursuit of the other? If the goals clash, choices about which goal to prioritize will have to be made. Racial justice activists have demanded loudly and clearly that systemic change toward racial justice must finally be prioritized. In various ways, Biden has signaled that he is sympathetic to such demands. However, history suggests that the perceived need for avoiding or curing disagreements among White Americans is usually prioritized over stated commitments to eradicating systemic racism when they clash. Will America's checkered racial justice history continue to repeat itself as some signs seem to be indicating, or will things be different this time?

This Article argues that close evaluation of the Supreme Court's constitutional racial equality jurisprudence of the last four decades offers important lessons that need to be learned and implemented--both by policymakers and by the Court itself--for things to be different this time. This jurisprudence has revolved precisely around the relationship between avoiding social division and conflict on the one hand, and eradicating America's legacy of racism on the other. Specifically, an “antibalkanization” approach has driven the Court's doctrinal answers to perhaps the most controversial question of constitutional racial equality law: Are government actors permitted to rely on race as a factor when deciding how to distribute resources and opportunities in pursuit of racial equality--for example, via affirmative action programs, race-conscious redistricting, voluntary school desegregation programs, and the like--and if so, to what extent? The antibalkanization approach's answer is an ambivalent “sometimes” and when the answer is yes versus no is fundamentally based on its proponents' views about the relationship between racial conflict and racial equality progress.

Broadly speaking, the approach is built on the tension between its acknowledgment that racial inequality is a continuing problem that representative government should be empowered to address, and its conviction that “social cohesion is a prerequisite for equality.” In resolving this tension, the approach holds that the goals of avoiding racial conflict and eradicating racial inequality are not only compatible, but that achieving the goal of eradicating racial inequality essentially requires avoiding or minimizing race-based social conflict where possible. Because America's history has made race an explosive topic and racial solidarity an existing but fragile phenomenon, minimizing race-based social conflict, in turn, requires extremely careful handling of governmental reliance on race as a distributive criterion: “Too much” emphasis on race must generally be prohibited because it is too likely to create counterproductive racial hostility and resentment, in particular among White Americans. More modest consideration of race that downplays its social importance, on the other hand, is less likely to create racial hostility and resentment among Whites, and therefore is sometimes permitted. The overarching role that the antibalkanization approach sees for the Court is that of drawing the complex doctrinal “boundary lines” that allow the government to address the ongoing problem of racial inequality while preventing the government from creating counterproductive racial conflict and tension while doing so.

Using insights from Critical Race Theory (CRT) and social science research, this Article argues that the antibalkanization approach exhibits a “frustrating duality” as a strategy for achieving greater racial equality: It has progressive potential, but, as actually implemented, it is decidedly regressive.

The approach's progressive potential lies in the fact that its reasoning process incorporates many of the right considerations, and that it speaks to Justices who seem to apply this reasoning process with at least somewhat of an open mind. The latter is demonstrated by proponents' willingness to support race-conscious racial equality initiatives later in their careers when their prior jurisprudence did not require them to do so. Through this willingness, antibalkanization proponents have preserved important constitutional space for race-conscious racial equality initiatives in a period of the Court's history generally characterized by ascendant and aggressive colorblindness ideology.

And yet, the approach's regressive reality lies in the fact that this progressive potential has been compromised by the approach's flawed baseline assumptions about the nature and dynamics of racial inequality. These flawed assumptions, in turn, lead the approach to put in place flawed prescriptions for how to facilitate racial equality progress. Specifically, the approach proceeds from a version of what CRT scholars have called the “perpetrator perspective” of racial discrimination, which has three basic characteristics: (1) a baseline view that absent strong evidence to the contrary in a particular context, American society is presumptively racially egalitarian; (2) a conviction that deviations from racial equality are primarily caused by the specific actions of blameworthy individual actors who are violating this shared norm; and (3) a conclusion that therefore the main purpose of racial equality law is to police and prevent the inappropriate behavior of such perpetrators. CRT scholars have criticized this perspective because (1) it misrepresents actual baseline realities of deep racial inequality; (2) this inequality is perpetuated to a significant extent by deep-seated structural forces that operate independently of blameworthy conduct by specific ill-intentioned actors; and (3) racial equality law must thus incorporate structural interventions if it is to be effective.

In trying to navigate the relationship between racial conflict and race-conscious government action, the antibalkanization approach replicates the basic characteristics of the perpetrator perspective and thus is subject to similar critiques. This Article sets out both aspects in detail.

As for replicating the perpetrator perspective, the approach (1) assumes as a base-line view that white Americans are committed to racial equality progress (if in a fragile way) and will generally accept racial equality interventions without hostility and resentment (so long as the government structures them properly); (2) reasons that racial hostility and resentment among white Americans results primarily from overzealous or sloppy reliance on race by the government--i.e., when the government acts as a “racial hostility perpetrator”; and (3) as a result, strictly restricts race-conscious equality initiatives to those in which it considers the government not to be acting as such a perpetrator. The approach is particularly restrictive toward initiatives with a remedial purpose, which it views as especially likely to cause racial hostility and resentment.

However: (1) As social science research illustrates, a baseline assumption that white Americans will accept racial equality interventions without hostility and resentment is not justified. (2) This is because White racial hostility and resentment is to a significant extent a structural phenomenon that is tied to the dynamics of racial hierarchy. It is triggered by threats to the dominant position of Whites in the hierarchy and is not dependent on any governmental perpetrator. (3) Thus, if part of the goal of equal protection doctrine is to facilitate movement toward a society that features both racial equality and social cohesion, it should incorporate more discretion, not less, for government actors pursuing structural changes to the conditions of racial hierarchy. Most prominently, this includes programs with a remedial rationale.

Laying bare the frustrating duality of the antibalkanization approach helps strengthen existing critiques of the approach. The most notable existing critiques are (1) a racial partiality critique based on the fact that the Court has applied its concerns about cohesion only to issues that create possible resentments among White Americans; and (2) a critique that as a result of its focus on reducing the salience of race in racial equality policymaking, the approach is in conflict with democratic principles of transparency and accountability. The analysis offered in this Article gives these critiques and their proposed solutions a firmer theoretical foundation. With respect to racial partiality, understanding that the approach is grounded in a flawed perpetrator perspective makes clear that, as currently formulated, the approach fails even in its analysis of White resentment. It also suggests that a willingness to adopt the proposed solution to this partiality--also applying the approach to issues of concern to racial minorities analytically dependent on a prior willingness to replace the perpetrator perspective with its opposite: a “victim perspective.” With respect to the approach's transparency deficit, the ability to convince antibalkanization proponents to accept more open engagement with issues of race in policymaking is dependent on making a strong case that the approach's focus on reducing the salience of race has failed not because of poor implementation, but because it is mistaken in its fundamental assumptions. This Article makes that case.

Perhaps more importantly, recognizing the approach's frustrating duality uncovers important implications for actors with an interest in contributing to racial equality progress. Most broadly, understanding the flaws of the approach's perpetrator perspective undermines the assumption “that social cohesion is a prerequisite for equality.” It suggests instead that while racial solidarity and social cohesion are valuable long-term goals for American society, reaching these goals will likely require accepting short-term racial tension as a necessary corollary of the path of structural change that needs to be traveled. For policymakers such as the Biden administration, this means that progress toward truly accomplishing the goal of “root[ing] out systemic racism” will require a break from the past practice of prioritizing white harmony over decisive structural intervention in the hopes that racial equality progress will organically materialize on its own over time. The prospect of reactionary white racial hostility and resentment, in other words, should not cause a pulling back from decisive structural interventions.

For the Court, a number of lessons seem clear, though their likelihood of being adopted will depend on the Court's ideological rigidity, especially after its most recent changes in composition. Most directly related to this Article's analysis, the Court should adjust equal protection doctrine to give more discretion to government actors who voluntarily implement race-conscious programs with a remedial rationale. This change is of urgent importance: Pushed by social movement activism as part of the ongoing reckoning over race and policing, government actors around the country may be both motivated to implement such remedial programs and yet deterred by the Court's restrictive jurisprudence. At a minimum, members of the Court's conservative majority who share the antibalkanization approach's willingness to learn about the dynamics of race should vote to preserve the fragile status quo that permits some race-consciousness in higher education and redistricting as new challenges to these practices return to the Court. If, as is perhaps most likely, the Court will pull back from race-consciousness instead, this Article makes plain the deleterious consequences of such a choice for both long-term racial equality and social cohesion. If it is true that to protect its own legitimacy the Court often tries to predict and stay in line with society's long-term values, both social activism and legal scholarship have a role to play in describing what those values could and should be and how legal doctrine could effectively be reconciled with them. This has been a project of CRT for three decades now. Will these calls be heard when it matters most? Scholars such as Derrick Bell have raised grave doubts. But as a saying in my native German language goes: “Die Hoffnung stirbt zuletzt.” Hope dies last. This Article suggests that there are some reasons for hope, small as they may be. Fueling this hope and holding those who could take it up but refuse to do so accountable should be a worthwhile endeavor in legal scholarship.

This Article proceeds in three main parts. Part I describes the antibalkanization approach in depth to uncover both parts of its frustrating duality: its regressive grounding in a perpetrator perspective but also the component parts of its progressive potential. Part II turns to social science research to demonstrate the flaws of the approach's perpetrator perspective and to illustrate the structural dimensions of White racial hostility and resentment. Part III discusses implications.

[. . .]

Recognition of the antibalkanization approach to equal protection has improved our understanding of the Supreme Court's racial equality jurisprudence of the last four decades. Driven by the views of a small number of Justices in the middle of the Court, questions of “balkanization,” and in particular of social cohesion and racial hostility and resentment, have taken center stage. Antibalkanization Justices have developed a consistent jurisprudence around these questions and have based it on relevant racial equality concerns. But they have developed this jurisprudence from within a world that, while plausible, does not reflect the actual world of race relations in the United States. Their jurisprudence remains trapped in a perpetrator perspective that overlooks the crucial structural influence of racial hierarchy and White supremacy. Programs that aim to remedy the continuing effects of this hierarchy have been the approach's primary victims. A more transformative jurisprudence requires incorporating a more realistic understanding of American race relations into legal doctrine and policymaking. A willingness to take these steps in the near future seems elusive and unlikely. But hope gains strength from the collective efforts of those demanding a more just future. And hope dies last. We shall see where it will be able to take us.

Acting Assistant Professor of Lawyering, New York University School of Law.