Reckoning with Structural Racism: A Restorative Jurisprudence of Equal Protection

Abstract

The United States Supreme Court’s equal protection doctrine ignores the existence of structural racism, thus eschewing the opportunity inherent in the Fourteenth Amendment to combat the oppressive race-based gaps in life chances that structural racism produces. This failure to reckon with racism as it exists today is due at least in part to two doctrinal barriers: the intent doctrine and the frequent decontextualization of race. These self-imposed barriers could be overcome through the use of a revised jurisprudence — what we call a restorative jurisprudence of equal protection. Existing equal protection doctrine misconceives of race discrimination as the product of a strictly individual type of racism, i.e. interpersonal attitudes of racial superiority and intentional acts of bigotry. Our claim that equal protection doctrine needs revision to account for a more accurate conception of racism is not new. Numerous distinguished scholars, including Charles R. Lawrence, III, Ian Haney Lopez, and many others, have voiced such criticisms and offered methodologies for conforming the law to the real world. Adding our voices to that choir, we offer an additional framework, rooted in restorative values, for refashioning the doctrine. We suggest that a jurist who adopts restorative values is likely to interpret evidence of race discrimination and modify applicable doctrine in ways that are consistent with the realities of contemporary racism and inequality. Specifically, a restorative jurisprudence would help jurists acknowledge the importance of discriminatory effects and contextualize evidence, methodologies likely to result in a racism-combatting doctrine capable of interrupting structural racism and, in turn, advancing racial equality.