Published in 100 Iowa Law Review 201 (2014).


Is race discrimination a single social phenomenon, and, if it is, why not govern it by a single legal rule? The temptation to conform constitutional and statutory standards in race equality law is powerful and appears to have captured the imagination of the Supreme Court in several of its most recent decisions. Historically, the Court’s decisions in this area have sometimes promoted convergence between constitutional and statutory standards, often by using constitutional precedents to resolve issues of statutory interpretation. At other times, they have promoted divergence, by honoring the authority of political institutions to establish equality norms that exceed constitutional guarantees. These oscillating interpretive strategies have received little attention in the scholarship on race equality law, and the Court itself has offered no framework for anticipating when it will choose either strategy. This Article identifies the primary rationales by which the Court justifies its choice of strategy. In contrast to scholarship arguing that convergence is a consequence of the migration of public values across legal domains, this Article discusses the Court’s tendency to explain its choice of strategy by weighing two types of considerations: some regarding empirical assumptions about the nature of race discrimination and others regarding jurisprudential rules that define the role of courts in our democracy. Convergence has intuitive appeal because it promises judicial economy and satisfies our expectation that like cases should be treated alike. This Article, however, argues against judicially-imposed convergence of the kind demonstrated by the Court’s recent decisions as an artificial restriction on lawmaking and legal interpretation that both narrows the breadth of options open to political institutions to address racial inequality and interferes with the judiciary’s charge to faithfully interpret and enforce the law. This Article argues that the Court should observe differences in constitutional and statutory bodies of race equality law when those differences are expressed by the text of legal provisions or revealed by the purposes for which provisions were proposed or enacted. This approach best preserves for political institutions the flexibility to develop legal rules to address shifting obstacles to racial equality and to respond to the public’s evolving understanding of the meaning of equality.


Civil Rights and Discrimination | Constitutional Law | Courts | Human Rights Law | Jurisprudence | Law | Law and Race | Law and Society | Legislation

Date of this Version