Recognizing Discrimination: Lessons from White Plaintiffs

The Supreme Court has developed a robust Equal Protection jurisprudence to recognize the rights of whites complaining of race conscious governmental activity. This was particularly reflected in the Court’s opinion in Parents Involved, where the Roberts Court radically re-positioned the meaning of Brown v. Board of Education. While many have lamented this use of Brown, we have missed the promise of the Roberts Court’s “process-only discrimination” for minority plaintiffs. This Article argues that the Roberts Court has adopted a version of colorblind jurisprudence so unconditional and absolute that it unintentionally, but unmistakably, offers great promise to non-white plaintiffs. By making unlawful any different treatment of an individual by race, whether it has substantive consequences or not, the Roberts Court has expanded what is actionable under the Equal Protection Clause of the Fourteenth Amendment, even for minority plaintiffs.