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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 Imaged with the Permission of N.Y.U. Law Review

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