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61 Nw. U. L. Rev. 363 (1966-1967)
Equal Justice in an Unequal World: Equality for the Negro-The Problem of Special Treatment

handle is hein.journals/illlr61 and id is 375 raw text is: Copyright G 1966 by Northwestern University School of Law Xwakm,'fnivej LAW REVIEW VOLUME 61 JULY-AUGUST NUMBER 3 EQUAL JUSTICE IN AN UNEQUAL WORLD: EQUALITY FOR THE NEGRO-THE PROBLEM OF SPECIAL TREATMENT* John Kaplant INTRODUCTION A LARGE area of constitutional litigation can be regarded as a dia- logue between those who would, in the name of equality, apply the same standards to all men and those who, in the given case, would find that the application of formal equality bore so heavily upon the indi- vidual as to result in serious inequality. Although there may be defects in such a view of the problem it suggests a parallel issue which has received even less attention. Here the problem is when should what appears to be formal inequality be regarded as true equality. The dif- ference between these questions is nowhere better exemplified than in the racial area. The former is illustrated by the gradual demise of Plessy v. Ferguson as the Court came around to the view that, in today's world, the formal equality-members of each race should share facilities with other members of the same race-works great inequality upon the Negro. The second issue is exemplified by the growing chorus of de- mands that society attempt to compensate for the pervasive economic and social inequality of our society by establishing formally unequal programs which single out the Negro for special-and in some sense better-treatment.1 Although one may phrase both problems in terms of equality, it may well be that discussions about the meaning of this term do not help in fathoming either of these issues. In all probability * Presented in September, 1965 as the subject of the second in a series of confer- ences at the Law School under the general title Philosophy from Law. t Professor of Law, Stanford University. ISee, e.g., HENTHOFF, THE NEw EquALry 95-114 (1964). See also, Palo Alto Times, April 13, 1966, p. 25, Additional Negro Workers Ordered on Public Project: San Rafael (AP)-If we ordered you to use pink concrete at an extra cost, you would conform to it. If we ordered you to put on a blue roof, you would conform, a supervisor said. In this case, the board has decided to hire some black faces, at an extra cost if necessary, to accomplish what we want. And we expect you to conform. he added. 363 Printed in U.S.A.

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