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Owen Fiss's classic essay rightly argues that equal protection should be used to address systemic group disadvantages. It speaks, however, of racial groups as "natural" social groups, not rooted in biology, but also not created by specific legal rules. Yet American laws have always played a large role in constructing racial identities, and they have continued to do so even in the wake of Brown v. Board of Education, which sought to eliminate all legal expression of claims of racial superiority. By presenting blacks as profoundly damaged by segregation, Brown's reasoning still permitted assumptions of white superiority to continue. By recognizing that the law has been a major contributor to racial identities, and that American laws have constructed both white and black racial identities in harmful ways, we can articulate more fully how greater equality for racial groups would advance equal protection goals and genuinely benefit all.

"Black" and "White" in Brown: Equal Protection and the Legal Construction of Racial Identities