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Excerpted from: Jonathan P. Feingold, Equal Protection Design Defects, 91 Temple Law Review 513 (Spring, 2019) (236 Footnotes) (Full Document)


JonathanFeingoldIn the mid-2000s, self-described "behavioral realist[s]" cohered around the observation that decades of values-based arguments--often mobilizing anticaste or antisubordination visions of constitutional equality--had failed to soften the Supreme Court's hostility toward affirmative action. The behavioral realists, in turn, shifted the debate from values to facts. Instead of contesting the normative commitments that informed the doctrine, behavioral realists mobilized social science to disrupt empirical assumptions embedded in the law.

Little more than a decade later, the results are mixed. On the one hand, the science of implicit bias--central to the behavioral realist canon--is well traveled across legal and lay discourse. Yet even as the science proliferates and the legal scholarship evolves, little suggests that these new facts will motivate doctrinal reform. If anything, the Supreme Court's equal protection jurisprudence appears as entrenched as ever--a reality unlikely to change following the appointment of Justice Kavanaugh.

Given the Supreme Court's apparent intractability, one might cast behavioral realism as a bust. It was, after all, intended to spur doctrinal reform where values-based arguments fell short. Such a diagnosis is premature for what remains a nascent legal school of thought. More importantly, evaluating behavioral realism based on doctrinal reform alone overlooks its value as a model of scholarly engagement. Specifically, by disrupting empirical assumptions instead of critiquing normative commitments, behavioral realism offers a vehicle to assess whether activists, scholars, and judges--including Supreme Court Justices--care about what they say they care about.

This Article adopts a behavioral realist approach to interrogate the Supreme Court's long-stated commitment to individual meritocracy in the equal protection context. This commitment can be seen as responsible, at least in part, for the rise of an equal protection doctrine designed to protect what I refer to herein as every person's "right to compete." As I explain in greater detail below, the right to compete reflects a vision of constitutional equality that requires the government to allocate public goods--such as employment or admission--on the basis of a person's individual "merit," irrespective of her race.

Equal protection doctrine, in turn, can be understood as Justice-made rules designed to promote, among other ends, the right to compete. A central feature of contemporary equal protection doctrine is its disparate treatment of facially neutral state action and racial classifications. Facially neutral state action is subject to rational basis review and rarely struck down. Racial classifications, in contrast, must satisfy strict judicial scrutiny and rarely survive.

Scholars have long critiqued the principles that animate what I have termed the equal protection right to compete. Less attention, however, has been paid to whether existing doctrine actually promotes this vision of equality. One might presume that it does. Yet empirical findings spanning employment, law enforcement, and education suggest the opposite. Specifically, scholarship from the mind sciences reveals that common facially neutral evaluative tools--such as human judgment, standardized tests, and predictive algorithms--can systematically mismeasure an individual's existing talent and potential (that is, merit) because of her race. Accordingly, when decisionmakers rely on such "racial mismeasures" to determine whom to hire or admit, they effectively compromise each candidate's right to an individualized, meritocratic, and race-free review.

In short, facially neutral measures of merit may, counterintuitively, jeopardize the right to compete, even as contemporary equal protection doctrine renders the use of such metrics presumptively constitutional. This, in turn, incentivizes the government to employ practices that produce the precise harm that a majority of Justices say the Fourteenth Amendment was designed to prevent. The doctrine, it appears, may not be giving the Supreme Court what it says it wants.

This Article proceeds in three sections. In Section I, to lay groundwork, I explore how a commitment to the right to compete emerged over more than four decades of Supreme Court equal protection case law. I also tie this commitment to the Supreme Court's disparate treatment of facially neutral state action and racial classifications. In Section II, I draw on social science to introduce and unpack the concept of a racial mismeasure. This review of the social science exposes that, contrary to commonsense assumptions, selection processes that unmindfully rely on facially neutral measures of merit will often deny certain competitors, because of their race, the right to compete. In Section III, I advance the argument that contemporary equal protection doctrine is ill suited to promote the right to compete. To further this line of engagement, I imagine how doctrinal reform would have impacted seminal equal protection decisions.


If one takes the science seriously, it becomes apparent that equal protection doctrine incentivizes the government to adopt decisionmaking processes that will contravene the right to compete. Nonetheless, there is little reason to believe the Supreme Court, particularly its conservative members, will do anything about it. If this proves accurate, and the Supreme Court ignores evidence that equal protection doctrine undermines the normative values it is ostensibly designed to uplift, one is forced to ask what is actually driving the Supreme Court's adjudication of equal protection cases.

If not the right to compete, then what? At a minimum, ongoing judicial indifference to the science of racial mismeasures suggests that the Supreme Court's commitment to individual meritocracy is more conditional and contingent than the Justices would suggest. Thus, even were one to accept the right to compete as a genuine normative commitment, it is difficult to ignore that the Supreme Court's once uncompromising commitment to this principle has eroded as the principle no longer justifies prevailing doctrinal arrangements. Taken one step further, one may ask whether individual meritocracy has historically functioned not as an end to realize but rather as a means to justify and rationalize a doctrinal regime that foreseeably reproduces and reaffirms racial hierarchy and inequality in the United States.

Research Fellow, BruinX | Special Assistant to the Vice Chancellor, UCLA Equity, Diversity and Inclusion.