Equal Protection in the Key of Respect
Hellman, Deborah, The Yale Law Journal
ESSAY CONTENTS INTRODUCTION I. HUMILIATION A. Challenging Professor Ackerman's Conception of Humiliation B. Is Humiliation the Right Concept at All? II. CHALLENGING PROFESSOR ACKERMAN'S DESCRIPTIVE ACCOUNT OF BROWN III. WRONGFUL DISCRIMINATION AS DEMEANING ACTION A. Social Meaning, Sphericality, and Sociological Jurisprudence B. The Power of Demeaning IV. COMPLICATING THE ACCOUNT A. The Content of the Expressive Action B. Too Demanding C. Respect and Expression CONCLUSION: ANTI-DISCRIMINATION LAW IN THE KEY OF RESPECT
If we read Chief Justice Warren's opinion in Brown v. Board of Education on its own terms and take its reasoning seriously, counsels Bruce Ackerman, we will recognize its oft-neglected insight that segregating school children violates equal protection precisely because it is a form of institutionalized humiliation. (1) "There is great wisdom in Warren's opinion," Ackerman writes, "but a single master-insight will suffice for now: the Court's emphasis on the distinctive wrongness of institutionalized humiliation." (2) This essay will interrogate Ackerman's argument and its component claims. Ackerman claims that the Brown opinion grounds the wrongness of school segregation in the fact that it humiliates black school children (the descriptive claim), that Brown's distinctive contribution has been largely missed (the intellectual history claim), and that both Brown and the civil rights statutes that build on this important insight are correct that humiliation is at the core of what makes segregation a denial of equal protection (the normative claim).
In what follows, I argue that there is both something correct and something not quite right about each of these claims. While the essay may therefore seem critical in tone, let me state clearly at the start how much I admire Professor Ackerman's book and how much I learned from it. My engagement below is offered as a sort of friendly amendment to the theses he offers in Chapter 7.1 will focus my discussion on the normative claim, though I will say something about the other two claims along the way. Ackerman joins a growing chorus of scholars who emphasize that treating people as equals requires recognition and respect. (3) Or, to put the point in the negative, humiliation and its related cognates--demeaning, degrading, insult, shaming, etc.--may well involve a failure to treat people as equals in a manner that has normative and constitutional significance. As I am among those who agree that wrongful discrimination involves some sort of failure of respect, I think Ackerman is largely right to celebrate Brown's insight along these lines. But the hard work going forward lies in articulating and exploring this view. Is humiliation the central or core wrong? If not, how might we refine the insight? Ackerman himself suggests, near the close of the chapter, that Brown's emphasis on humiliation is only a starting point, and that it won't get us all the way to the sort of equality aimed at by later civil rights statutes: the "civil rights revolution ... has left us a complex legacy of anti-humiliation and more ambitious egalitarian principles requiring a sophisticated array of legal techniques for their successful realization." (4) In this essay, I hope to take up this invitation to think more about whether humiliation does capture the distinctive wrong of both Jim Crow segregation and discrimination as it occurs today.
A. Challenging Professor Ackerman's Conception of Humiliation
In order to assess Professor Ackerman's claim that the distinctive wrong of school segregation is that it constitutes institutionalized humiliation, we must know what humiliation is. Ackerman provides an answer both by telling us to consult our everyday experiences of humiliation (5) and by offering us the following definition: humiliation is a "face-to-face insult in which the victim acquiesces in the effort to impugn his standing as a minimally competent actor within a particular sphere of life. …