Racial justice in education and LGBTQ equality are on the chopping block as the Court is reviewing two affirmative action cases against Harvard University1 and the University of North Carolina2 on the ground of racial discrimination and a LGBTQ rights case challenging Colorado’s anti-discrimination statute on the ground of free speech at the intersection of religious liberty.3 Conventional wisdom places the blame for the regression of equality and civil rights on the Court’s conservative super-majority. This is the same super-majority that infamously wielded its power to roll back abortion rights in Dobbs v. Jackson Women’s Health Organization. Indeed, the Court’s taste for hot-button issues is a testament to the conservative super-majority’s willingness to align itself with the conservative movement’s legal/constitutional agenda. Liberals’ and equality movements’ resentment of the Court’s ambitious conservativism is well-founded.
For Osamudia James, more is to blame for the current constitutional threats to legal equality. The equality gains that many celebrate and endeavor to protect – racial desegregation in Brown v. Board of Education and the recognition of same-sex marriage in Obergefell v. Hodges – came with a built-in weakness that led to the entrenchment, rather than disruption, of inequality. Through her elaboration on the “relational obstacles” on the road to racial justice and LGBTQ equality, James identifies the paradox situation: due to the failure to address the superordinate status of white people and straight men and heterosexual couples, equality movements and courts have produced “equality-promoting” doctrines that not only undercut the wins but also preserve “paths for the status-threatened to reinstate or reaffirm superordinate positioning” (P, 202) that would, finally, leave their old hierarchies in place. Consequently, equality’s drag is the unfortunate and unintended byproduct of equality wins. The increasing racial segregation of public schools and retrenchment of LGBTQ rights can only be attributed partly to the conservative movement because equality movements’ litigation strategies and advocacy also have a role to play.
Shifting the spotlight from the oppressed to the privileged
Many have written on Brown and Obergefell, but few have examined them in tandem to reveal the dark sides of both iconic decisions. For James, the two cases exemplify how landmark decisions and movements’ long-term litigation strategies in pursuit of equality failed to grasp relational status changes that may lead to the privileged groups’ attempts to reinstate their superiority. Disputing the understanding of “status” as referring to “individual characteristics with legal consequences” (P. 201) and the overemphasis on animus and discrimination (as classification), James considers status as “positionality in a social hierarchy” (P. 201). Status is “anchored in cultural beliefs,” “relational in nature” (P. 219), and “distinct from competition for material resources or animus,” though it often “overlaps with both in matters of equality” (P. 218). To interrogate the treatment of status in equality laws and movements, she uses school integration and same-sex marriage struggles/efforts/projects as case studies because they both involve (1) equal citizenship and access to public goods; (2) movement achievements of legal “victories” that extended such access; and (3) persistent inequality and retrenchment after key legal “victories.”
Court wins never guarantee reality change in life. Brown promised to dismantle school segregation by race. Yet, some courts were reluctant, or even refused to oversee, integration, and residential segregation has further facilitated segregation, resulting in the continuity of white privileges in education. Obergefell—like the Court’s Windsor decision it built on—granted same-sex couples access to marriage, but a new battle over public accommodations law threatens not only other civil rights laws but ongoing constitutional recognition of and respect for same-sex marriage.
Why did movements for public-school integration and same-sex marriage ended up reifying rather than disrupting the status hierarchy? Rather than blaming the “hollow hope,”4 James examines the interactions between law and society within which status was challenged and sustained, calling for attention to the impacts of status change on traditionally superordinate groups: “the doctrine and remedies which emerged from the movements failed to under-cut the consensuality of beliefs that inform and stabilize status hierarchies and left available opportunities for retrenchment. Failing to appreciate the impact of status only increases the likelihood that courts, advocates, and policymakers will affirm, ignore, miss, or concede to status hierarchies, instead of dismantling them.” (Pp. 204-05.)
According to James, in the case of public-school integration, both the Brown Court and the movement chose to interrogate the inferiority of black people in school education5 and left the superordinate status of whites unaddressed. The Brown Court focused on the material and psychological harm on Black children, but stopped short of revealing “the commitments to racial purity and white supremacy which had justified segregation from the start” and thus failed to address “the dignitary and psychic losses to whites that would inevitably accompany integration” (Pp. 217-18).6 Its silence about status “helped affirm white monopoly on resources and power as natural” (P. 229), hence sustaining the superiority of white schools and white people. Framing the problem as a Black issue and Black suffering without challenging white supremacy also exempted whites from any responsibility for racial harms and “the burden of being labeled racist” (P 232.) Likewise, the NAACP’s strategy emphasized the subordinate status of Blacks without addressing the superordinate status of whites (which strategy deserved a “sympathetic assessment” (P. 243)). The strategy also chose prioritized accountability “to the middle-class Blacks and whites on whom the NAACP relied for support, and for whom integration had worked well” (P. 244) and further marginalized “the least powerful of minoritized communities, ensuring that the ‘wins’ inadequately serve them, if at all.” (P. 245.) Consequently, the racial hierarchy has been maintained rather than destabilized.
In the case of same-sex marriage, the Supreme Court endorsed marriage equality in Windsor and Obergefell without challenging the superordinate status of men within marriage and straight people, despite the Court’s acknowledgment of the dignitary value in recognition of same-sex relationship. James asserts that “[m]issing from the Obergefell and Windsor opinions was the same analysis absent in Brown: the identification of harm not only as injuring the subordinated group, but also as benefitting the subordinating group.” (P. 238). The Court’s glorification of marriage as an institution that confers dignity is an invitation for same-sex couples to assimilate, which “reinforces the superior status of straight people.” (P. 239) Likewise, the marriage equality movement sidelined the concerns of more vulnerable members of the queer community, presenting marriage as a cherished status and “chose plaintiffs that were disproportionately white, gender-conforming, educated, affluent, and parents.” (P. 245.) Therefore, the movement also contributed to reifying traditional norms about marriage and family through its assimilative approach that conformed to normalcy.
In both cases, the Courts and the movements failed to confront the status loss and equality costs for those on the top of the hierarchy, making it easier for the superordinate groups to reinstate their hierarchical position and harder to name their status balancing. This failure also left the cultural beliefs that informs status hierarchies intact. White norms and (heterosexual) marriage norms endure, despite landmark legal “victories.” So understood, James’s of criticism of “long-term status costs that undermine a short-term victory” (P. 247) echoes Nancy Polikoff’s thesis of “winning backward,” by which she meant “a victory the legal basis of which sets back a goal greater than the immediate outcome.”7 James’ call for attention to white privileges is also in line with scholarship that stress the necessity to consider oppression and privileges in tandem.
Preservation through Transformation
Interrogating equality gains and status loss in education and marriage, James has contributed to equality scholarship and movement theorizing by identifying the preservation of the status hierarchy and its transformation. She presents a dynamic of what Reva Siegel coined “preservation-through-transformation,”8 in which the idea of choice looms large. In the context of primary and secondary education, the doctrine of parental liberty has served to legitimate “inequality-affirming choices” (parents’ school choices informed by “built-in structural inequalities” and “made on an education market facilitated by the state”) (P. 212). James claims that “White flight can therefore be understood as race-neutral preference rather than the status-securing political moves that Brown should have named and prohibited” (P. 231). In the context of marriage, the doctrine of religious liberty—and free speech—have enabled challenges to public accommodation law like those in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Arlene’s Flowers v. Washington, and 303 Creative LLC v. Elenis that “are grounded in the voluntary choices of individuals that are either beyond the reach of the law or not easily resolved by our current legal frameworks” (P. 240). Status endures “due to a religious liberty that is most likely to protect straight white males”9 (P. 241). In this vein, Brown and Obergefell both “paved exit ramps away from equality” (P. 238), despite the difference that resistance to integrated education is motivated partly by material competition, whereas the recognition of same-sex marriage is not a zero-sum game. This review of the fight for education and LGBTQ equality presents a picture in which dominant groups’ liberty trumps subordinate groups’ equality.
James’s work might remind readers familiar with critical race theory of Derrick Bell, whose work on the interest convergence of Brown remains a masterpiece. Citing Bell’s call for attention to white interests and the superior status of middle and upper-class white, James notes that “a transactional approach to addressing status can be disheartening. Engaging status, however, must also be about reframing.” (P. 253.) Comparing the equality movements’ relative active engagement of animus and discrimination, James urges us to “recognize that status exerts a less visible, but forceful drag on equality movements” to reassess the movement’s triumphs and failures (P. 225). She concludes with the claim: “Better theorizing the role of status in major equality movements can limit equality’s drag, resulting in more robust and enduring equality wins.” (P. 254.) Her cautious tale of the equality gains and status loss is a timely reminder for equality seekers in the post-Trump age. The challenges of going forward lie not in defense of previous “legal victories” but in the departure from the route taken.
- Students for Fair Admissions (SFFA) v. Harvard.
- Students for Fair Admissions (SFFA) v. University of North Carolina.
- 303 Creative LLC v. Elenis.
- Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (1991/2008).
- James carefully notes that, despite the article’s focus on the Black-white binary, school segregations involved racial minorities other than Black, (P. 205 n16).
- James cited the now-challenged social science evidence in Brown: Dr. Kenneth Clark’s doll test, which was provided as evidence showing how segregation generated Black children’s sense of inferiority. However, “Dr. Kenneth Clark was dismayed that the court failed to cite two other conclusions he had reached: that racism was an inherently American institution and that school segregation inhibited the development of white children, too.” Legal Defense Fund, Brown v. Board and “The Doll Test” (Nov. 28, 2022).
- Nancy Polikoff, The New “Illegitimacy”: Winning Backward in the Protection of the Children of Lesbian Couples, 20 Am. U. J. Gender Soc. Pol’y& L. 721, 722 (2012).
- Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111 (1997). Siegel demonstrated how “status-enforcing state action evolves in form as it is contested” (Id. at 1113).
- James specifically points to the fact that “the Masterpiece Cakeshop plaintiff, Jack Phillips, was a white, heterosexual, Christian male” who “represented a group that most benefitted from the exclusion of same- sex couples from marriage, and was most vulnerable to status disruption after Obergefell” and that “Phillips was free to try to reinstate his superior status, and the Court invoked minority status to facilitate that reinstatement.” (P. 240.) Douglas NeJaime and Reva B. Siegel have also noted that, unlike the claim of a member of a religious minority challenging a law that that comports with the majority’s dominant faith traditions, this claim of religious exemption from laws that protect same-sex relationships defends customary morality, and, therefore, “religious liberty claims offer a framework for opposing an emergent legal order and the newly recognized rights of those the order protects. Douglas NeJaime and Reva Siegel, Religious Accommodation, and Its Limits, in a Pluralist Society, in Religious Freedom, LGBT Rights, and the Prospects for Common Ground 71 (William N. Eskridge and Robin Fretwell Willson eds., 2018).
