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This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both longstanding and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other. Events over the last year have put this question into sharp relief. On the one hand, portions of the general public and at least some policymakers have signaled support for the demands of racial justice activists to reduce and eliminate systemic racism after too many tragedies of police brutality against the black community have made painfully obvious that such systemic racism continues. At the same time, the country is perhaps more politically divided than ever before, the racial dimensions of this division are evident, and events since the 2020 election have shown that appetite for racial reform is by no means universal. In this environment, calls to “unify” and take time to “heal” as well as to “root out systemic racism” are made at the same time. Can these calls be realistically pursued at the same time or is there a need to prioritize one over the other? This is not just a question of policy but also of constitutional law. Over the last four decades, the Supreme Court’s equal protection jurisprudence on governmental race-consciousness has answered with an “antibalkanization approach” which prioritizes social cohesion. Indeed, this approach views social cohesion as a prerequisite for racial equality progress. It considers racial hostility and resentment among white Americans as the most important racial equality obstacle and polices governmental race-consciousness in an attempt to minimize such hostility and resentment. It believes that this is the only way to reach the constitutional ideal of racial equality. Many policymakers in the past have agreed. This Article posits that while this approach appears to be well-meaning and cares about some of the right kinds of considerations, it is ultimately flawed because it misunderstands the dynamics of racial inequality and racial hierarchy. The antibalkanization approach attempts to solve a structural problem with a “bad apple” approach—what Critical Race Theory scholars have called a perpetrator perspective. This Article goes in depth to illustrate both the inner workings of the antibalkanization approach and how social science research on the sociological and social psychological dimensions of racial hierarchy shows it to be flawed. The approach ought to be replaced by a more accurate model of racial equality progress that would view white racial hostility and resentment not as an obstacle but as a likely inevitable side-effect of the path of structural change that is necessary for achieving both racial equality and social cohesion over the long-term. Adopting such a structural understanding of racial hostility and resentment would have important implications for both policymakers and for the Court.


William & Mary Bill of Rights Journal, Vol. 30, Issue 3 (March 2022), pp. 613-688