61 N.Y.U. L. Rev. 1003 (1986)
Anti-Subordination above All: Sex, Race, and Equal Protection

handle is hein.journals/nylr61 and id is 1017 raw text is: NEW YORK UNIVERSITY
LAW REVIEW

VOLUME 61                       DECEMBER 1986                          NUMBER 6
ANTI-SUBORDINATION ABOVE ALL: SEX,
RACE, AND EQUAL PROTECTION
RUTH COLKER*
Two sometimes conflicting principles, anti-differentiation and anti-subordination, un-
derlie equal protection jurisprudence Anti-differentiation contends that it is inappro-
priate to treat individuals differently because of their race or sex  Thus, anti-
differentiation advocates often reject affirmative action programs. Anti-subordination,
by contrast, argues that it is inappropriate for groups to be subordinated in society. The
latter perspective rejects policies, even iffacially neutral, that perpetuate the historical
subordination of groups, while embracing even facially differentiating policies that
ameliorate subordination. Professor Colker argues that although many scholars have
long viewed anti-differentiation as the justifiably dominant perspective, anti-subordina-
tion better explains much of the equal protection doctrine's history and case law, as
well as the aversion we feel toward race and sex discrimination. She applauds judicial
acceptance of the anti-subordination perspective in affirmative action cases, and sug-
gests a framework for incorporation of the anti-subordination principle into all equal
protection analysis
INTRODUCTION
Feminists often criticize equal protection' doctrine for not taking
* Associate Professor of Law, Tulane University. A.B., 1978, Harvard-Radcliffe College;
J.D., 1981, Harvard University. I wish to thank Mary Whisner, John Stick, Vicki Schultz,
Michael Perry, Catherine Hancock, Joel Friedman, and Paul Barron for their assistance. I
also wish to thank the University of Wisconsin Legal Institute for permitting me to share an
earlier version of this Article with the participants at the 1986 Feminist Legal Theory
Conference.
I The fourteenth amendment provides, in relevant part, No state shall make or enforce
any law which shall... deny to any person within its jurisdiction the equal protection of the
laws. U.S. Const. amend. XIV, § 1. This Article uses the phrase equal protection to refer
to statutory as well as constitutional claims of race or sex discrimination. Although most of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to h-6, was enacted pursuant to Congress's
commerce clause power rather than pursuant to § 5 of the fourteenth amendment, see S. Rep.
No. 872, 88th Cong., 2d Sess. 17, reprinted in 1964 U.S. Code Cong. & Admin. News 2355,
2366-68, both the legislative history and judicial interpretion of that statute make clear that it
was meant to further the same concerns and values that are embodied in the equal protection
clause. See id. at 16, 1964 U.S. Code Cong. & Admin. News 2362-65; Bureau of Nat'l Aff.,
The Civil Rights Act of 1964 (1964); Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
1003

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