Abstract

The anti-subordination principle that Owen Fiss's celebrated article defends seems to have been decisively rejected by the courts in the last quarter century. But that rejection was a mistake-the antisubordination principle is central to the Equal Protection Clause-and in the coming years the courts may again be forced to recognize its centrality. The reason is that the problem of rational statistical discrimination seems to be emerging as a central issue. The currently prevailing framework, organized around the so-called antidiscrimination principle, does not address that problem in a useful way; the antisubordination principle does. Rational statistical discrimination is discrimination based on an accurate statistical generalization about a racial, ethnic, or other comparable group. The antidiscrimination principle, depending on how it is formulated, either automatically permits statistical discrimination (because that form of discrimination is not the product of animus) or automatically condemns statistical discrimination (as just another breach of the requirement of colorblindness). Neither approach is satisfactory: the first ignores the costs that even rational discrimination inflicts on the victims; the second ignores the costs inflicted on society if rational discrimination is always disallowed.

We cannot decide when rational statistical discrimination should be permitted unless we have an account of what is wrong with discrimination. Then we can decide whether the gains from discrimination justify the costs. Professor Fiss's antisubordination principle provides such an account. For that reason, if, as seems likely, the problem of statistical discrimination becomes more pressing in the next few years, courts may again be forced to rely explicitly on some form of the antisubordination principle. In a way it is unfortunate that Professor Fiss couched his landmark defense of this principle in the radical-sounding language of "group rights": the antisubordination principle is not a dramatic new approach but rather has been the core of the Equal Protection Clause since Strauder v. West Virginia, and its indispensability may soon become apparent again.

Recommended Citation

David A. Strauss, ""Group Rights" and the Problem of Statistical Discrimination" Issues in Legal Scholarship, The Origins and Fate of Antisubordination Theory (2003): Article 17.
http://www.bepress.com/ils/iss2/art17