Equal Protection in the Key of Respect
Yale Law Journal
UVA Law Faculty Affiliations
This essay challenges the three related claims embedded within Professor Ackerman’s assertion that the distinctive wisdom of Chief Justice Warren’s opinion in Brown v. Board of Education lies in its recognition of segregation as institutionalized humiliation. Ackerman claims that Brown grounds the wrongness of school segregation in the fact that it humiliates black school children (the descriptive claim), that Brown’s distinctive contribution has been largely missed (the intellectual history claim), and that both Brown and the civil rights statutes that build upon it are correct that segregation violates equal protection precisely because it is humiliating (the normative claim). The essay argues that while there is something right about each of these claims, each is also flawed in important ways. The main focus of the essay is on the normative claim. I argue that Professor Ackerman is in the right general space; that the core wrong of segregation relates to respect and recognition, to avoiding denigration and demeaning. However, the concept of humiliation doesn’t quite work to capture what makes segregation and other discrimination violate equal protection. After distilling Professor Ackerman’s conception of humiliation, I show that it is unable to capture central cases of wrongful discrimination. Next I argue that even a modified conception of humiliation won’t capture what makes segregation problematic. I go on to offer my own account, according to which an action wrongfully discriminates when both it expresses denigration and the person or entity acting has power over the person acted upon. Bringing power into the account allows it to explain why people who defy segregation and are thus not humiliated are nevertheless wronged. Finally, I explore how my own account would handle laws and policies that lack the clear symbolic meaning of segregation. I offer a modification of my prior view that begins to sketch how a respect-based account could handle these cases.
Deborah Hellman, Equal Protection in the Key of Respect, 123 Yale Law Journal 3036-3062 (2014).