Groups in a Diverse, Dynamic, Competitive, and Liberal Society: Comments on Owen Fiss's "Groups and the Equal Protection Clause"

Abstract

This relatively short paper, written for an online symposium honoring Owen Fiss's Groups and the Equal Protection Clause, frontally challenges his disadvantage theory. While his theory exhibits some attractive features, the conceptions of groups and group competition that frame and infuse the theory were unconvincing when he wrote the article in 1976, and are even more unconvincing today in light of remarkable gains by blacks in almost every area of American life. The diversity, dynamism, and competition of group life, together with the individualistic culture in which are embedded, constitute the generative social context in which groups form their identities, achieve and compete for status, and form relationships with other groups in civil society, including the state. Fiss's failure to take adequate account of this context renders his theory mistaken in fundamental respects, and his failure to provide a coherent account of status and status harm leaves his theory radically incomplete. The paper is divided into two main sections - (1) the empirics of black progress and political influence, and (2) the anti-discrimination principle - and concludes with a brief discussion of several facts and dilemmas that any serious theory of group identity and group competition must confront: the decline of discrimination against blacks, the large and growing intra-group heterogeneity of blacks, and the emergence of other ethno-racial groups competing with blacks for public resources and recognition.