This article demonstrates that the U.S. Supreme Court has walked away from racial equality in favor of the same liberal equality approach that was the foundation for Plessy v. Ferguson’s “separate but equal” doctrine. The Court’s recent affirmative action cases, from Grutter and Gratz v. Bollinger, to Fisher v. University of Texas, to Students for Fair Admissions v. President and Fellows of Harvard College, all apply a liberal equality theory that is hostile to racial equality. In the lead-up to these cases, the Court abandoned its Brown-era interpretation of equality under the Fourteenth Amendment Equal Protection Clause in favor of a liberty-centered jurisprudence that is essentially a reapplication of the Plessy-era theory of equality. Under the Plessy-era liberal equality framework, Fourteenth Amendment equality does not require positive action to advance full racial inclusion so long as law and government action provides for the same facilities for all. This “sameness” approach is the essence of the liberal component to liberal equality. Today, liberal equality is the theoretical foundation for affirmative action decisions, based on the idea that the use of race should always be subject to the strictest scrutiny even when that use is intended to benefit racial minorities. This article distinguishes racial equality from liberal equality. It addresses how the Burger Court began the transition away from a racial equality-based doctrine, which has led to the point we are today with a re-embrace of Plessy-era liberal equality under Students for Fair Admissions. Ignoring the white supremacy concerns that underlie foundational Equal Protection Clause decisions like Loving v. Virginia, and instead focusing exclusively on differential treatment or discrimination concerns, removes a core component to the meaning of equal protection. Equality as identical treatment is only half the story; the other half is racial equality – the end of racialized hierarchy.
