Document Type
Article
Publication Date
2026
Abstract
As Donald Trump’s assault on Diversity, Equity, and Inclusion (DEI) reveals, the concept of racial equality is sufficiently malleable that what used to be viewed as remedies for discrimination against racial minorities can now be recharacterized as reverse discrimination against the White majority. Such recharacterization is possible because the concept of equality itself lacks any stable meaning that exists independent of one’s normative preferences about race. In a democracy, normative disputes are properly resolved through the political process, unless there is some representation reinforcement defect that makes judicial intervention necessary to ensure compliance with our second order constitutional equality principle. But representation reinforcement theory ultimately rests on the same subjective and political preferences that animate our normative views about race. If we were to substitute what I term distributional reinforcement theory, and focus on racial balance in the distribution of societal resources, we would do a better job of promoting racial equality. We would operationalize the inherently abstract concept of equality by utilizing a concrete and measurable metric; we would escape the unsatisfying constraints of the current intentional discrimination paradigm; we would acknowledge that concrete effects matter more than doctrinal obfuscation; and we would approximate the distribution of resources that would exist in a truly nondiscriminatory culture.
Scholarly Commons Citation
Spann, Girardeau A., "Distributional Reinforcement Theory" (2026). Georgetown Law Faculty Publications and Other Works. 2690.
https://scholarship.law.georgetown.edu/facpub/2690
Included in
Civil Rights and Discrimination Commons, Constitutional Law Commons, Law and Politics Commons, Law and Race Commons