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Bates College Undergraduate Law Review

Bates College Undergraduate Law Review

Abstract

This article examines the evolution of Equal Protection jurisprudence through the competing lenses of anti-classification and anti-subordination. Anti-classification holds that the Constitution prohibits governmental use of racial categories regardless of purpose; anti-subordination holds that the Equal Protection Clause targets the perpetuation of racial hierarchy rather than the mere use of racial categories. Beginning with the foundational ambiguity of Brown v. Board of Education (1954) and tracing the doctrinal trajectory through Regents of the University of California v. Bakke (1978), Grutter v. Bollinger (2003), Parents Involved in Community Schools v. Seattle School District No. 1 (2007), and Students for Fair Admissions v. Harvard (2023), I argue that the Court's progressive embrace of anti-classification principles has resulted in a constitutional oxymoron: a jurisprudence that deploys the language of harm, stigma, and hierarchy-the traditional vocabulary of anti-subordination doctrine-to prohibit the very remedies anti-subordination would require. This transformation does not represent doctrinal progress but a reconceptualization of equality away from the substantive dismantling of subordination toward the formal prohibition of classification, even where that prohibition leaves structural marginalization intact.

Keywords: Equal Protection Clause, anti-classification, anti-subordination, affirmative action, strict scrutiny, Fourteenth Amendment, Students for Fair Admissions v. Harvard, constitutional jurisprudence, Supreme Court of the United States

Creative Commons License

Creative Commons Attribution 4.0 International License
This work is licensed under a Creative Commons Attribution 4.0 International License.

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