Law and Race Commons^™

(How) Can Litigation Advance Multiracial Democracy?, Olatunde C.A. Johnson

Faculty Scholarship

Can rights litigation meaningfully advance social change in this moment? Many progressive or social justice legal scholars, lawyers, and advocates would argue “no.” Constitutional decisions issued by the U.S. Supreme Court thwart the aims of progressive social movements. Further, contemporary social movements often decenter courts as a primary domain of social change. In addition, a new wave of legal commentary urges progressives to de-emphasize courts and constitutionalism, not simply tactically but as a matter of democratic survival.

This Essay considers the continuing role of rights litigation, using the litigation over race-conscious affirmative action as an illustration. Courts are a key …

Ambivalent Advocates: Why Elite Universities Compromised The Case For Affirmative Action, Jonathan Feingold

Faculty Scholarship

“The end of affirmative action.” The headline is near. When it arrives, scholars will explain that a controversial set of policies could not withstand unfriendly doctrine and less friendly Justices. This story is not wrong. But it is incomplete. Critically, this account masks an underappreciated source of affirmative action’s enduring instability: elite universities, affirmative action’s formal champions, have always been ambivalent advocates.

Elite universities are uniquely positioned to shape legal and lay opinions about affirmative action. They are formal defendants in affirmative action litigation and objects of public obsession. And yet, schools like Harvard and the University of North Carolina—embroiled …

Colorblind Capture, Jonathan Feingold

Faculty Scholarship

We are facing two converging waves of racial retrenchment. The first, which arose following the Civil Rights Movement, is nearing a legal milestone. This term or the next, the Supreme Court will prohibit affirmative action in higher education. When it does, the Court will cement decades of conservative jurisprudence that has systematically eroded the right to remedy racial inequality.

The second wave is more recent but no less significant. Following 2020’s global uprising for racial justice, rightwing forces launched a coordinated assault on antiracism itself. The campaign has enjoyed early success. As one measure, GOP officials have passed, proposed or …

"All (Poor) Lives Matter": How Class-Not-Race Logic Reinscribes Race And Class Privilege, Jonathan Feingold

Faculty Scholarship

In An Intersectional Critique of Tiers of Scrutiny, Professors Devon Carbado and Kimberlé Crenshaw infuse affirmative action with an overdue dose of intersectionality theory. Their intervention, which highlights the disfavored remedial status of Black women, exposes equality law as an unmarked intersectional project that “privileges the intersectional identities of white antidiscrimination claimants.”

This latent racial privilege rests on two doctrinal pillars. First, single-axis tiers of scrutiny, which force claimants and courts to view discrimination in either/or terms (that is, race-based or gender-based or class-based), contravene intersectionality’s core insight that “people live their lives co-constitutively as ‘both/and,’ rather than fragmentarily …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning whether …

The "Inexorable Zero", Bert I. Huang

Faculty Scholarship

[F]ine tuning of the statistics could not have obscured the glaring absence of minority [long-distance] drivers .... [T]he company's inability to rebut the inference of discrimination came not from a misuse of statistics but from "the inexorable zero."

The Supreme Court first uttered the phrase "inexorable zero" a quarter-century ago in International Brotherhood of Teamsters v. United States, a landmark Title VII case. Ever since, this enigmatic name for a rule of inference has echoed across legal argument about segregation, discrimination, and affirmative action. Justice O'Connor, for instance, cited the "inexorable zero" in a major sex discrimination decision upholding an …

Rethinking Racial Profiling: A Critique Of The Economics, Civil Liberties, And Constitutional Literature, And Of Criminal Profiling More Generally, Bernard Harcourt

Faculty Scholarship

New reporting requirements and data collection efforts by over four hundred law enforcement agencies across the country – including entire states such as Maryland, Missouri, and Washington – are producing a continuous flow of new evidence on highway police searches. For the most part, the data consistently show disproportionate searches of African-American and Hispanic motorists in relation to their estimated representation on the road. Economists, civil liberties advocates, legal and constitutional scholars, political scientists, lawyers, and judges are poring over the new data and reaching, in many cases, quite opposite conclusions about racial profiling.

Playing Race Cards: Constructing A Proactive Defense Of Affirmative Action, Kimberlé W. Crenshaw

Faculty Scholarship

On behalf of the African American Policy Forum ("AAPF"), I am pleased to participate in this symposium as a co-sponsor and contributor. The AAPF, who together with Fairness and Accuracy in Reporting (FAIR) and the Women's Roundtable constitute the Women's Media Initiative, believes that events such as these are critical in efforts to map strategies for intervening in public debates surrounding affirmative action and a host of related issues such as welfare reform, racial profiling, the prison industrial complex, and the concentration of wealth, just to name a few. As one of many organizations that have taken up the defense …

Intersectionality And Positionality: Situating Women Of Color In The Affirmative Action Dialogue, Laura M. Padilla

Faculty Scholarship

This article explores the position of women of color in the affirmative action dialogue. Affirmative action has come under attack locally, statewide, and federally. During this same period, critical race feminists have brought into sharp relief how women of color are marginalized or erased in discourses over sex and gender, as well as over race and ethnicity. Despite these protests and warnings, the current debate over affirmative action continues this history of invisibility, perpetuating America's spoken and unspoken conceptions about where women of color belong. For example, most discussion of affirmative action focuses on race, more specifically on African-Americans. Some …

The Unresolved Problems Of Reverse Discrimination, Kent Greenawalt

Faculty Scholarship

The current widespread use of remedial affirmative action programs makes the legitimacy of reverse discrimination a pragmatic social concern. That alone, however, would not explain the intense interest generated by Regents of the University of California v. Bakke. The question posed in the case compels our attention because it forces a choice between two values that occupy a high place in the liberal conception of justice and claim substantial support in the equal protection clause. On the one hand, justice requires that groups that have previously suffered gross discrimination be given truly equal opportunity in American life; on the other, …

Bakke As Precedent: Does Mr. Justice Powell Have A Theory, Vincent A. Blasi

Faculty Scholarship

What does it all mean? The Supreme Court's decision in Regents of the University of California v. Bakke invites assessment at many levels. Was it really a "Solomonic compromise" worthy of our constitutional tradition, as some prominent scholars have suggested? Or does the decision represent, as I believe it does, a disturbing failure by the Court to discharge its responsibility to give coherent, practical meaning to our most important constitutional ideals? Does the uncharacteristically opaque and simplistic opinion of Justice Stevens mask deep divisions and ambivalences among the four justices who subscribed to it? Can there be any validity to …