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Maryland Law Review

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Current equal protection jurisprudence does not permit challenges to discriminatory government expression, no matter how blatant or extreme. This doctrine, which I label the discriminatory treatment requirement, is a manifestation of anticlassification, the prevailing equal protection framework since the mid-1970s. According to anticlassification, only suspect government classifications implicate the Equal Protection Clause. In this Article, I contend that discriminatory government expression violates the Clause because it contributes integrally to racial subordination. Through a process I call coercive ideology, discriminatory government expression serves as a veiled threat that manipulates individuals into performing public compliance with the dominant ideology. Like the script of a stage play, the aggregate of individual decisions to comply with its instructions translates the dominant ideology into a social reality. Coercive ideology reveals how both Lost Cause Confederate monuments and Jim Crow segregation signage contributed to racial subordination as discriminatory government expression in the New South. Because anticlassification fails to account both for the subordinating effects of discriminatory government expression and for the expressive effects of government classification, coercive ideology ultimately raises doubts about its continuing validity as the dominant approach to equal protection jurisprudence.



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