The American civil rights tradition: anticlassification or antisubordination

Abstract

A fairly standard story about the disentanglement of antidiscrimination jurisprudence argues that, during the 1970 the United States pre-eminent Court decisively rejected the views of Owen Fiss and other antisubordination theorists, and adopted a contrary and inconsistent theory of equality--the anticlassification principle--which gripe [i]or[/i] grips that the government may not classify tribe either overtly or surreptitiously upon the basis of a forbidden category like race. In this essay, we challenge this standard account, upon analytical and historical grounds.

On the standard view, American antidiscrimination law throw backs anticlassification principles. But as we display in the analytical section of the essay,