The New Racial Justice: Moving Beyond the Equal Protection Clause to Achieve Equal Protection

Since handing down Washington v. Davis and Arlington Heights v. Metropolitan Housing Development, the United States Supreme Court has significantly curtailed the ability of plaintiffs to bring disparate impact claims under the Equal Protection Clause. Many academics continue to talk about the standards governing intent and disparate impact. Some recent scholarship recognizes that reformers on the ground have shifted away from equality-based claims altogether. This Article contends that civil rights advocates replaced the old equal protection framework some time ago and that they did so deliberately and with great success.

It expands upon and refines the strategy shift some scholars have identified, with a particular focus on racial inequality, the foundation on which equal protection rests. It does so by focusing on three particularly timely reform movements: indigent defense reform, the fight to end the school-to-prison pipeline, and challenges to immigration-related laws. The Article uses these various reform movements to identify and analyze the true breadth of the new racial justice reformers have wrought.