* Professor, St. Louis University School of Law. This essay is based on a presentation that was made at the 1999 First National Meeting of the Regional People of Color Legal Scholarship Conferences.
1 See Elizabeth Amon, Law Schools: Chicago’s Marshall is Host to 10th Meeting of Minority Scholars, Nat’l L.J., Apr. 19, 1999, at A22.
2 Derrick A. Bell, And We Are Not Saved: The Elusive Quest For Racial Justice (Reprint ed. 1989).
3 438 U.S. 265 (1978).
4 Professor Linda S. Greene of the University of Wisconsin-Madison School of Law and Professor Norman Amaker of Loyola University Chicago School of Law were the organizers of the meeting.
5 People of Color Legal Scholarship Conferences have been formed in the Northeast, the Mid-Atlantic, the Southwest, the Southeast, and the West.
6 See, e.g., Washington v. Davis, 426 U.S. 229, 242 (1976) (rejecting the disparate impact analysis in claims asserting discrimination under the Equal Protection Clause of the Fourteenth Amendment); City of Richmond v. Croson, 488 U.S. 469, 493 (1989) (applying strict scrutiny standard to affirmative action programs extablished by the federal government); Shaw v. Reno, 509 U.S. 630, 641–42 (1993) (allowing equal protection challenges by non-minority voters to “majority-minority” voting districts based on irregularities in the geographic boundaries of a congressional district); Miller v. Johnson, 515 U.S. 900, 910–11 (1995) (relaxing the burden of proof for non-minority voters who assert equal protection challenges to redistricting legislation).
7 For an example of how this continues to operate in legal education, see generally Richard Delgado, The Imperial Scholar: Reflections on a Review of Civil Rights Literature, 132 U. Pa. L. Rev. 561 (1984). In this article Delgado explains how minority scholars were excluded from academic discourse by white civil rights scholars. See generally id. They argued for minority rights in their writings, but they only cited the works of white scholars. See id. at 563. They did not cite and seemed to be unaware of the considerable body of minority scholarship. See id. at 561–64.
8 See Chandra Talpade Mohanty, On Race and Voice: Challenges for Liberal Education in the 1990s, in Between Borders: Pedagogy and the Politics of Cultural Studies 145, 149 (Henry A. Giroux & Peter McLaren eds., 1994).
9 See id.
10 See id.
11 See generally, e.g., Critical Race Theory: the Key Writings That Formed the Movement (Kimberlé Crenshaw et al. eds., 1995); Critical Race Theory: The Cutting Edge (Richard Delgado ed., 1995); Critical Race Feminism: A Reader (Adrien Katherine Wing ed., 1997).
12 See generally Richard A. Chused, The Hiring and Retention of Minorities and Women on American Law School Faculties, 137 U. Pa. L. Rev. 537 (1988).
13 See id. at 539–48; see also Michael A. Olivas, The Education of Latino Lawyers: An Essay on Crop Cultivation, 14 Chicano-Latino L. Rev. 117, 128 (1994) (discussing the negligible number of Latinos, including 22 law teachers in 1982 and, as of 1994, only 1.5% of all faculty and 1.1% when all tenured faculty are considered).
14 Chused, supra note 12, at 539.
15 See generally Richard Delgado and Derrick Bell, Minority Law Professors’ Lives: The Bell-Delgado Survey, 24 Harv. C.R.-C.L. L. Rev. 349 (1989).
16 See id. at 352.
17 See id. at 352–53.
18 See generally Charles R. Lawrence III, Minority Hiring in AALS Law Schools: The Need for Voluntary Quotas, 20 U.S.F. L. Rev. 429 (1986).
19 See id. at 432–37.
20 See id. at 432–33.
21 See id. at 435–36.
22 See id. at 434.
23 401 U.S. 424 (1971), rev’g 420 F.2d 1225 (4th Cir. 1971).
24 See id. at 426–27.
25 See id. at 427–28.
26 See id. at 428.
27 See id. at 429.
28 See id. Griggs, 401 U.S. at 430.
29 See id. at 432.
30 See id. at 431.
31 See id.
32 See id. at 431–32.
33 See Griggs, 401 U.S. at 432.
34 See id. at 436.
35 See 422 U.S. 405, 410–11 (1975).
36 See id. at 431.
37 See 402 U.S. at 430–31; 29 C.F.R. § 1607 (1978). In Albemarle, the Court interpreted the EEOC guidelines as prohibiting discriminatory tests unless it can be shown “by professionally acceptable methods,” that the tests are “‘predictive of or significantly correlated with important elements of work behavior which comprise or are relevant to the job or jobs for which candidates are being evaluated.’” 422 U.S. at 431.
38 See 422 U.S. at 435.
39 See id. at 432–33.
40 Id. at 425, 435–36 (quoting Griggs, 401 U.S. at 432).
41 See id. at 436.
42 See id. at 425. A prima facie case is made through a demonstration that the qualifications imposed cause the employer to select applicants “in a racial pattern that is significantly different from that of the pool of applicants.” Id.
43 See Albemarle , 422 U.S. at 425.
44 See id. at 425 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). In Watson v. Forth Worth Bank and Trust, the Supreme Court held that the disparate impact analysis applies to subjective hiring criteria. See 487 U.S. 977, 991 (1988). The disparate impact standard was codified by the Civil Rights Act of 1991, 42 U.S.C. § 2000e et seq.
45 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring). See also Keyishian v. Board of Regents, 385 U.S. 589, 603–04 (1967) (holding New York statute provisions and administrative procedures barring or disqualifying employees based on teaching certain doctrine unconstitutional); Academic Freedom and Tenure, 1940 Bull. Am. Ass’n U. Professors, Feb. 1942, at 84.
46 Faro v. New York Univ., 502 F.2d 1229, 1231–32 (2d Cir. 1974); see also Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (stating that courts should defer to the judgment of the academics and should not overturn such decisions unless they are such “a substantial departure from accepted academic norms as to demonstrate that the person or committee did not actually exercise professional judgment”).
47 See 455 F. Supp. 1102, 1117 (D. Del. 1978), rev’d on other grounds, 601 F.2d 76 (3d Cir. 1979). The Third Circuit Court of Appeals affirmed the portion of the district court’s holding that the University’s basis for not renewing Scott’s contract was not racial animus. Scott v. Univ. of Del., 601 F.2d 76, 81 (3d Cir. 1979).
48 See Scott, 455 F. Supp. at 1118.
49 See id.
50 See id. at 1117.
51 See id. at 1123.
52 See id. at 1126.
53 See Scott, 455 F. Supp. at 1126.
54 See 728 F.2d 911, 914 (7th Cir. 1984).
55 See id. at 912.
56 See id. at 913.
57 See id. at 912–13.
58 See id. at 913.
59 See Carpenter, 728 F.2d at 915.
60 See id. at 914–15.
61 See id. at 915; see also Zahorik v. Cornell Univ., 729 F.2d 85, 96 (2d Cir. 1984) (finding that faculty selection process, which relied heavily on the selective judgment of scholars, was job-related).
62 See generally Norman Redlich, Law School Faculty Hiring Under Title VII: How a Judge Might Decide a Disparate Impact Case, 41 J. Legal Educ. 135 (1991).
63 See id. at 135.
64 See id. at 137–39.
65 See id. at 139.
66 See id. at 137.
67 See Redlich, supra note 62, at 138. See generally, e.g. Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L.J. 705; Elyce H. Zenott & Jerome A. Barron, So You Want to Hire a Professor, 33 J. Legal Educ. 492 (1983).
68 Derrick A. Bell, Diversity and Academic Freedom, 43 J. Legal Educ. 371, 374 (1993).
69 Id.
70 Id.
71 William A. Kaplan & Barbara A. Lee, The Law of Higher Education: A Comprehensive Guide to Legal Implications of Administrative Decision Making 215 (3d ed. 1995).
72 See Richard A. White, Association of American Law Schools Statistical Report on Law School Faculty 1997–98 (visited Mar. 19, 1999) . The 1997–98 survey indicates that minorities constituted 9% of all law school professors. See id. Unlike the Chused study, this survey includes the four historically-black law schools. See id. If full-time tenured and tenure-track positions at majority law schools were considered, a far lower percentage would be shown. See id.
73 See Reginald Leamon Robinson, Teaching from the Margins: Race as a Pedagogical Sub-text, 19 W. New Eng. L. Rev. 151, 151–52 (1997).
74 See id. at 181.
75 Peter C. Alexander, Silent Screams from Within the Academy: Let My People Grow, 59 Ohio St. L.J. 1311, 1311 (1998).
76 See id. at 1328–29.
77 Leonard M. Baynes, Who is Black Enough for You? An Analysis of Northwestern University Law School’s Struggle Over Minority Faculty Hiring, 2 Mich. J. Race & L. 205, 225 (1997).
78 See id. at 225 n.91.
79 See id.
80 See generally Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics, 1989 U. Chi. Legal F. 139.
81 See Jennifer M. Russell, On Being a Gorilla in Your Midst, or, The Life of One Blackwoman in the Legal Academy, in Critical Race Theory: The Cutting Edge 498, 498–99 (Richard Delgado ed., 1995).
82 See id. at 500.
83 See id.
84 See Okainer Christian Dark, Just My ‘Magination, 10 Harv. BlackLetter J. 21, 23 (1993).
85 See id. at 24–25.
86 See id. at 26.
87 See id. at 28–29.
88 Donna E. Young, Two Steps Removed: The Paradox of Diversity Discourse of Women of Color in Law Teaching, 11 Berkeley Women’s L.J. 270, 272–76 (1996).
89 See id. at 280.
90 See id. at 279–80.
91 See id. at 281.
92 See id. at 280.
93 See Young, supra note 88, at 282.
94 See id. at 282.
95 See id.
96 See id. at 283.
97 Id. at 289.
98 Young, supra note 88, at 289.
99 See Trina Grillo, Tenure and Minority Women Law Professors: Separating the Strands, 31 U.S.F. L. Rev. 747, 747 (1997).
100 See id. at 749.
101 See id. at 753–54.
102 See 488 U.S. 469, 493 (1989).
103 See 438 U.S. 265, 324–421 (1978).
104 See id.
105 See 488 U.S. at 493.
106 See id. at 500.
107 See 438 U.S. at 311–12. In arguing for the application of strict scrutiny in Bakke, Justice Powell found that the elimination of racial discrimination would provide an adequate justification for the development of an affirmative action program. See id. He also believed that the goal of attaining student body diversity was “clearly constitutionally permissible.” Id.
108 See 38 F.3d 147, 157–58 (4th Cir. 1994), cert. denied, 514 U.S. 1128 (1995).
109 See id.
110 See 78 F.3d 932, 962 (5th Cir.), reh’g denied, 84 F.3d 720 (5th Cir.), cert. denied, 518 U.S. 1033 (1996).
111 See id. at 948.
112 See 160 F.3d 790, 808 (1st Cir. 1998).
113 See id. at 797. The courts have not been the only front on which battles are fought. A California ballot measure, Proposition 209, outlawed affirmative action in that state. A similar measure was adopted by voters in the state of Washington. These are not fortuitous occurrences; they are the product of carefully coordinated and well-financed campaigns by conservative activists. See, e.g., Michael S. Greve, The Demise of Race-Based Admission Policies, Chron. Higher Educ., Mar. 19, 1999, at 136. Greve’s organization, the Center for Individual Rights, represented the plaintiffs in Podberesky, Hopwood, and Wessman.
114 See Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning With Unconscious Racism, 39 Stan. L. Rev. 317, 338 (1987).
115 Id. at 343.
116 See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1377–79 (1988).
117 See id.
118 Id. at 1379.