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Current antidiscrimination law is exceedingly hostile to the project of race-conscious remediation—the conscious use of race to mitigate America’s persistent racial hierarchy. This Article argues that this broad hostility can be traced in significant part to what I call “Whiteness as Innocence” ideology. This ideology is a system of legal reasoning by which the formal principle of equality is filled with the substantive principle of white racial dominance via invocations of white innocence. That is, under this ideology, ideas about white innocence influence legal decisions on who is “alike” and “unalike” and what constitutes “alike” and “unalike” treatment in race-conscious remedies cases in ways that generally favor whites as a group yet appear consistent with, perhaps even required by, the ideal of racial equality. As a result, Whiteness as Innocence reasoning legitimizes doctrinal outcomes that help perpetuate America’s racial hierarchy by making them appear to be decisions about responsibility, fairness, and desert, rather than exercises of racial power. In this process, innocence has displayed a malleable meaning and become presumptively attached to the law’s understanding of whiteness itself. This illustrates in powerful ways that race is a socially and legally constructed concept. Whiteness as Innocence ideology has shaped important aspects of American race law in favor of perpetuating racial hierarchy. The most significant contemporary example is strict scrutiny doctrine as developed in the 1970s and 1980s under the lead of Justice Lewis Powell. Whiteness as Innocence ideology influenced all major aspects of this doctrine that have hamstrung race-conscious remedial efforts since then: (1) its strict standard of review; (2) its restrictions on the purposes for which race-conscious remedies can be used; and (3) its firm limits on the ways in which such remedies can be implemented. Important cases before and after that time, reaching from Dred Scott to decisions of today, also illustrate the long historical arch of this ideology. Whiteness as Innocence ideology allows racist premises of white superiority to infiltrate legal doctrine and creates racial hostility and resentment. Reform efforts seeking to promote racial justice ought to be freed from the strictures imposed by this ideology. This may well have to involve redefining the meaning of white innocence itself.


Denver Law Review, Vol. 96, Issue 3 (2019), pp. 635-698