SUBSCRIBE
Getting this forwarded from a friend? Subscribe to get our newsletter delivered directly to you!

IN THIS ISSUE

Front Page

Ms. Paterson Goes to Washington

Statewide Coalition Forms to Keep Extremists Off the Federal Bench

Notes on the Right: Extraordinary Circumstances: The Assault on the Judiciary

Linking Progressive Corporate Law with Social Justice Movements: A "First of Its Kind" Conference

EJS Amicus Brief Charges Unlimited Campaign Spending
Unfair to Communities of Color and the Poor

The Big Money Behind Ward Connerly

Law Review Summaries: Affirmative Action

Staff/Board News and Notes

Newsletter Editors:
Elaine Elinson
Joe Lucero

Email Feedback

Law Review Summaries:  Affirmative Action

By Susan K. Serrano, Research Director

As the battles over Bush’s judicial nominations rage on, vital freedoms and rights are at stake.    The confirmation of California Supreme Court Justice Janice Rogers Brown for the D.C. Circuit Court of Appeals has sent an alarm through the civil rights community in California, who are familiar with her disastrous opinions on the state high court.  Brown has consistently voted to invalidate worker and consumer protections, strike down property regulations, and restrict civil rights laws.  Brown is perhaps best known, however, as the author of Hi-Voltage Wire Works v. City of San Jose, [1] in which she likened affirmative action to Jim Crow era segregation.

In Hi-Voltage, the California Supreme Court ruled unanimously that Proposition 209 [2] banned “outreach” programs that targeted minority- and women-owned companies for recruitment as contractors.  In a sweeping condemnation of affirmative action, Justice Brown’s opinion reviewed—and distorted—150 years of civil rights legal history.  She described the U.S. Supreme Court’s shift during the 1970s from a “colorblind” approach to allowing “race-conscious practices” in order to remedy the effects of discrimination against minorities as parallel to laws prior to the Civil Rights Act of 1964, “when government could legally classify according to race.” [3]   Even Chief Justice Ronald George, a Republican appointee, in a separate concurrence described Justice Brown’s failure to distinguish between laws and policies that enabled segregation and those meant to eliminate discrimination “a serious distortion of history.” [4]

Now Justice Brown claims—in written testimony to the Senate Judiciary Committee—that her decision never criticized affirmative action and never compared it to Jim Crow-era segregation laws. [5]   She claimed that “"The court's opinion, in fact, expressed no view on the wisdom of affirmative action.” [6]  

The Equal Justice Society is committed to protecting and expanding affirmative action across the nation by facilitating constructive conversations among scholars and practitioners about race and affirmative action and providing critical tools needed to maintain and protect affirmative action programs.  In this issue, EJS provides summaries of a select few law review articles—both recent and classic—that address various aspects of affirmative action, including “colorblindness,” minority contracting, higher education, diversity and past discrimination, law and narrative, and international approaches to affirmative action.

Thomas Ross, The Richmond Narratives, 68 Texas L. Rev. 381 (1989).  This classic article analyzes the U.S. Supreme Court opinion in Richmond v. J.A. Croson Co., (which struck down a Richmond, Virginia ordinance that set aside thirty percent of the subcontracting work on city construction jobs for minority-owned firms) to illustrate that judicial opinions are narratives, that those narratives are connected to ideology, and that those narratives help to justify the result reached in a court’s decision.  In other words, the story a judge or justice chooses to tell or not tell in an opinion “connects, in at least a rhetorical way, with each Justice’s ideology.” For example, in Croson, Justice Thurgood Marshall’s dissenting opinion related “the story of Richmond’s resistance to school desegregation” in order to illustrate the experiences of African Americans in the city.  On the other hand, Justice Scalia’s concurring opinion did “not speak of Richmond's school desegregation at all.”  Justice O’Connor’s majority opinion “mentions it only as an instance of Marshall's irrelevancies.”  Thus, “[e]ach Justice told a different version of that story, or no version at all.”

The article also points how the opinions of Justices opposed to affirmative action often tell stories using abstract principles and speak of “innocent” white “victims” of affirmative action.  On the other hand, Justice Marshall told “rich stories of the people and places of the case, or the stories of the historical context,” because “[f]or Marshall, history is a source of stories, rather than simply a source of abstract principles.”  See also Neil Gotanda, A Critique of “Our Constitution Is Color-Blind”,

 44 Stan. L. Rev. 1 (1991) (The classic article “examines the ideological content of the metaphor ‘Our Constitution is color-blind,’ and argues that the United States Supreme Court’s use of color-blind constitutionalism—a collection of legal themes functioning as a racial ideology—fosters white racial domination.”  He analyzes several of the Court’s affirmative action cases, sets forth “four distinct ways in which the Court uses the word ‘race,’” describes “five color-blind constitutionalism themes” within those cases, and concludes that “white racial domination is supported, protected, or disguised by the particular theme under discussion.”).

Reginald Oh, Re-Mapping Equal Protection Jurisprudence: A Legal Geography of Race and Affirmative Action, 53 Am. U. L. Rev. 1305 (2004).  The author contends that the U.S. Supreme Court’s 1989 Richmond v. Croson decision “marked a critical moment and turning point in the evolution and development of public and legal discourse on race, racism, and race relations in America.”  He argues that, apart from the Court’s imposition of strict scrutiny on state and local government affirmative action programs, “the Croson decision is also important because of the way the Court produced and mapped a new social reality of race relations in America.

In the decision, the Court asserted that African Americans had achieved racial parity with Whites, and as such, that African Americans could no longer rely on a history of racial discrimination to justify the enactment of affirmative action programs.”  Instead, “for the Court, African Americans were now a politically powerful racial faction in the American political pluralist arena.”  Thus, the author argues, “the Court in Croson radically re-mapped American race relations and concluded that because African Americans now had become a political majority in cities like Richmond, the Equal Protection Clause was now needed to protect the white racial minority from oppressive measures enacted by powerful black political majorities.”  The author argues that this mapping of race relations is “profoundly inaccurate and obscures the continuing racial, socioeconomic, and political subordination of African Americans.”

The article utilizes the Croson decision to “evaluate issues of narrative legal theory, the importance of examining space and geography in critiquing and constructing legal doctrine, the continuing socioeconomic racial segregation of African Americans in metropolitan areas throughout the United States, the relationship between political power and space/geography, and the future of equal protection doctrine.”  Specifically, the author examines the “narrative structure of judicial opinions and contend[s] that, in constructing a particular narrative, the legal narrator makes certain unconscious and implicit choices regarding the spaces and places within which her narrative or story unfolds.  Those choices, rather than being neutral, inconsequential choices, deeply shape the meaning, message, and rhetorical power of a narrative representation of history or reality.”

The article also argues “that a different social reality of race and racial subordination emerges once the Croson narrative is set within broader geographic settings.”  He examines the situation in Croson from four different geographic perspectives, the national, regional, state, and Richmond metropolitan area.  In short, the author finds that “the fact that Blacks became a political majority in the City of Richmond in 1977 is not evidence of improving socioeconomic conditions for Blacks; instead, it is evidence of precisely the opposite: Black political power, especially at the local level, has been gained while socioeconomic conditions worsened for a substantial number of African Americans living in the central cities of America.”  The article closes by “discussing some of the implications that flow from a geographical analysis of law and legal narratives.”

Charles R. Lawrence III, Two Views Of The River: A Critique Of The Liberal Defense Of Affirmative Action, 101 Colum. L. Rev. 928 (2001).  The author observes that the “diversity” argument has emerged as the dominant defense of race-conscious admissions policies.  He terms this diversity argument the “liberal defense of affirmative action.”  The author critiques this defense because it fails to challenge “the ways that traditional admissions criteria continue to perpetuate race and class privilege” and because it has “has pushed other, more radical substantive defenses to the background.”

According to the author, “more radical arguments focus on the need to remedy past discrimination, address present discriminatory practices, and reexamine traditional notions of merit and the role of universities in the reproduction of elites.”  While recognizing the difficulties and ambivalence involved in advancing new visions for defending affirmative action policies, the author sets forth an alternative theory of “transformative politics” upon which to base future strategies for maintaining affirmative action:  “The alternative adopts the more radical view of equality, where the university assumes responsibility for the conditions produced by societal racism and redefines merit by asking which students will best serve the university's goal of changing conditions of inequality. It redefines racial diversity by seeking students whose experiences with and relationship to the phenomenon of racism are diverse.”

Kevin R. Johnson, The Last Twenty Five Years Of Affirmative Action?, 21 Const. Comment. 171 (2004).  The article criticizes the 25-year durational “limit” on race-conscious admissions policies articulated in the recent Grutter v. Bollinger (University of Michigan) decision.  In Grutter, the U.S. Supreme Court expressed its expectation that although lawfully permissible today, affirmative action programs should not be necessary in 25 years.  The author contends that because of this expected “sunset” of affirmative action, “the Court has virtually guaranteed that the debate over affirmative action will rage again in the not-too-distant future.”  The author recognizes that “Supreme Court decisions have repeatedly emphasized that affirmative action programs to remedy past discrimination are ‘temporary’ measures and should be eliminated when no longer necessary.”

However, he argues, this 25-year “limitation” is out of place.  First, “two-and-a-half decades will not be long enough to eliminate the need for affirmative action at elite public universities” because racism is extremely difficult to remedy and the nation’s schools are not reaching educational equity.  Second, the author identifies a “more fundamental flaw in the Court's expected 25-year sunset of affirmative action. . . .  The Supreme Court accepted the affirmative action plan of the University of Michigan law school as serving the compelling state interest of ensuring a diverse student body, not to remedy past discrimination. Race conscious programs designed to achieve a "critical mass" of minority students, and a diverse student body, would not seem to demand any expiration date, although periodic review might make policy sense . . . . Remedial-based affirmative action, in contrast, would not be necessary after the impacts of an institution's discrimination had been remedied. Put differently, universities could still want to strive for a racially diverse student body even if an institution's past discriminatory history had been fully addressed, or even if the institution had never discriminated against racial minorities.”

Finally, the author contends that “the argument could be made that the Supreme Court lacked the institutional competence to arbitrarily create a time limit that is the legitimate province of the political branches.”

Saras Jagwanth, Affirmative Action in a Transformative Context:  The South African Experience, 36 Conn. L. Rev. 725 (2004).  This Article argues that because the South African Constitution embraces a “substantive conception of equality,” and because South African legislation imposes the duty to promote equality, “affirmative action measures are seen as part of the right to equality, and will generally be upheld by the courts” in South Africa.  She contends that “previously disadvantaged groups may be able to use affirmative action provisions as a ‘sword’ to claim rights to remedial measures in the courts.”  Indeed, as the author argues, “[t]he duty to promote equality, particularly in a context of transformation, also requires more than the mere representation of under-represented groups.”

The author predicts that this substantive equality approach will require South African courts to take a “wider view than the United States Supreme Court on the range of purposes that are legitimate for affirmative action measures.”  First, “the South African courts will not apply the same standard of scrutiny to all race-based classifications regardless of whether they are designed to perpetuate or alleviate discrimination. The substantive and asymmetrical jurisprudence of the court—particularly in a determination as to whether discrimination is unfair—means that different standards of scrutiny will apply depending on the context.”  The courts will also look to different factors such as past disadvantage and the purpose of the provision because discrimination “may have different impacts in different contexts.”  Moreover, the South African courts are likely to be less focused on individual interests than the U.S. courts, but “will be more concerned with group-based disadvantage,” the fact that “individual merit-based criteria or requirements often have the effect of excluding members of particular groups,” and that “inequality is not the result of random individual acts of prejudice, but is systemic and deeply structural.”