* Copyright (c) 1999 by Taunya Lovell Banks. Jacob A. France Professor of Equality Jurisprudence, University of Maryland.
1 Patricia J. Williams, Seeing A Color-Blind Future: The Paradox of Race 15 (1998).
2 See Laura Kalman, Race Matters, N.Y. Times, May 10, 1998, § 7, at 31; Ursula K. Le Guin, The Stories We Agree to Tell, N.Y. Times, Mar. 12, 1995, § 7, at 6. Established in 1948, the Reith Lectures are given in memory of the BBC’s architect and are broadcast in Britain to over a quarter of a million people. See id.
3 See William Powers, Oh My!, The New Republic, Aug. 11 & 18, 1997, at 9. President Clinton in announcing the creation of the Commission said:
I want this panel to help educate Americans about the facts surrounding issues of race, to promote a dialogue in every community in the land, to confront and work through these issues to recruit and encourage leadership at all levels to help breach racial divides and to find, develop and recommend how to implement concrete solutions to our problems.
Id.
The Commission presented its report to the President on September 18, 1998, recommending, among other things, a permanent Presidential Council on Race to “monitor efforts and policies to promote racial reconciliation.” See Steven A. Holmes, Race Advisory Panel Gives Report to Clinton, N.Y. Times, Sept. 19, 1998, at A7.
4 See Williams, supra note 1, at 6.
5 See id. at 3.
6 See id.
7 See id.
8 Id.
9 See Williams, supra note 1, at 8–9.
10 See Neil Gotanda, Failure of the Color-Blind Vision: Race, Ethnicity, and the California Civil Rights Initiative, 23 Hastings Const. L. Q. 1135, 1140 (1996).
11 Id.
12 See id.
13 See id at 1140–41.
14 See id. at 1141.
15 Gotanda, supra note 10, at 1144 (citing Hopwood v. Texas, 78 F.3d 932, 939–40 (5th Cir. 1996)).
16 See generally Hopwood, 78 F.3d 932.
17 See id. at 940.
18 See id. at 934. At trial, the University of Texas offered five reasons for the race-conscious admissions programs, but the trial judge found only these two reasons constitutional. See id. at 938–39. The appellate court reversed, stating that “[r]acial preferences appear to ‘even the score’ . . . only if one embraces the proposition that our society is appropriately viewed as divided into races, making it right that an injustice rendered in the past to a black man should be compensated for by discriminating against a white.” Id. at 934–35 (citing City of Richmond v. J.A. Croson Co., 488 U.S. 469, 528 (1989) (Scalia, J., concurring in the judgment)).
19 See, e.g., Sweatt v. Painter, 339 U.S. 629, 636 (1950) (holding that the University of Texas School of Law could not lawfully refuse to admit a black applicant on the ground that substantially equivalent facilities were offered by a state law school open only to blacks).
20 See 78 F.3d at 946. The appellate court in Hopwood, while striking down racial preferences, approved alumni preferences where relatives of alumni were preferred over non-alumni: “An admissions process may also consider an applicant’s home state or relationship to school alumni.” See id. In doing so, the court ignored the fact that years of de jure and de facto racially discriminatory admissions practices at the law school resulted in an overwhelmingly white alumni body. See id.
21 See Barbara J. Flagg, “Was Blind, But Now I See”: White Race Consciousness and the Requirement of Discriminatory Intent, 91 Mich. L. Rev. 953, 955–56 (1993) (critiquing articles by Alexander Aleinikoff and Gary Peller advocating race-consciousness).
22 See id. at 957.
23 I use the term “race” in quotation marks to remind the reader, as does anthropologist Ashley Montagu, that race is not only socially constructed, but laden with such heavy baggage that it should never be used except in quotation marks. See Lawrence Wright, One Drop of Blood, The New Yorker, July 25, 1994, at 50.
24 See Williams, supra note 1, at 8–9.
25 See id. at 8.
26 See id. at 13.
27 See id. at 14.
28 Some critical scholars criticize those critical race theorists who discuss racial subordination exclusively through the black-white paradigm as marginalizing not only Asian Americans and Native Americans, but “even persons who are hued white or black but who derive from cultural or geographic destinations other than Europe or Africa, . . . who identify as both black and Latina/o.” See Francisco Valdes, Foreword: Latina/o Ethnicities, Critical Race Theory, and Post-Identity Politics in Postmodern Legal Culture: From Practices to Possibilities, 9 La Raza L.J. 1, 5 n.19 (1996); see generally William R. Tamayo, When the “Coloreds” Are Neither Black Nor Citizens: The United States Civil Rights Movement and Global Migration, 2 Asian L.J. 1 (1995) (discussing the limits of the black-white racial paradigm in the face of globalization).
29 See Williams, supra note 1, at 14.
30 See id. at 26.
1 John DuPont is heir to the DuPont fortune. See infra note 32.
32 See Williams, supra note 1, at 19–20. John DuPont killed an Olympic wrestling champion who was living at his estate. See id. For years, DuPont, with the full knowledge of the police, “drove around his up-market neighborhood in an armored tank bristling with sophisticated weaponry.” See id. Alex Kelly, with the help of his wealthy parents, fled the United States after a high school classmate accused him of rape. See id. at 19. He maintained a lavish lifestyle in Europe for ten years before being found and ultimately convicted. See id. At Kelly’s first trial, an all-white jury failed to reach a consensus, despite eyewitness testimony and physical evidence. See id.
33 See id. at 18.
34 See Johnnie Cochran, Simpson Case Showed Role Money Plays in Justice System, Balt. Sun, June 10, 1999, at 19A.
35 See id.
36 See id.
37 See Evan Moore, New Wrinkle, Hous. Chron., Nov. 17, 1996, at 1. An analogous example of what Johnnie Cochran calls “green justice” is the case of former Texas millionaire Cullen Davis whom a jury acquitted of the capital murder of his twelve-year-old step-daughter, the murder of his estranged wife’s boyfriend, and the attempted murder of his estranged wife, Priscilla. See id. Several years later, another jury acquitted Davis of conspiring to hire a hit man to kill some of the people responsible for his previous arrest. See id. Cullen Davis and the others involved were white. See id.
38 See Williams, supra note 1, at 21.
39 See id.
40 See id. at 22.
41 See Frank Bruni, At Harlem Churches, Flocks of Tourists; Drawn to Gospel, if Not Gospels, Foreigners Arrive by Busload, N.Y. Times, Nov. 24, 1996, § 1, at 37.
42 See id.
43 See id.
44 See Williams, supra note 1, at 21.
45 See id. at 26.
46 See id. at 26–27.
47 See id.
48 See id. at 27.
49 See Williams, supra note 1, at 26–27.
50 See David G. Savage, Clarence Thomas, Mentor, Balt. Sun, June 27, 1998, at 4C (discussing how Justice Thomas acts as a mentor to black youths like Cedric Jennings, a teenager from Washington, D.C. whose struggle to enter an elite college is recounted in Ron Suskind’s book, A Hope Unseen).
51 See generally, e.g., Shelby Steele, The Content Of Our Character: A New Vision of Race in America (1990) (arguing strategies that emphasize black racial identity and that victimization and entitlement pose barriers to blacks entering mainstream America).
52 For a discussion of this point, see generally Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317 (1987).
53 See Williams, supra note 1, at 27.
54 See id. at 28.
55 See id. at 31.
56 See id. at 33.
57 Surprisingly, even the Klan denied involvement in the brutal killing of Mr. Byrd. See KKK to Rally in Town Where Man Was Dragged to Death; Group Says It Wants to Disavow Ties to Killing, Balt. Sun, June 17, 1998, at 5A.
58 See generally Williams, supra note 1, at 31–45.
59 See id. at 34–35.
60 In the late nineteenth and early twentieth centuries, European immigrant groups such as the Irish, Italians, Jews, and Eastern Europeans were blamed along with the usual suspects, non-white and undocumented immigrants. See generally, e.g., Note, Racial Violence Against Asian Americans, 106 Harv. L. Rev. 1926 (1993) (arguing that resentment created by the model minority myth and the unfair competitor stereotype results in economically motivated racial violence rather than racial hatred).
61 See Williams, supra note 1, at 34.
62 See id. at 34–35.
63 Id.
64 See id.; see generally Mari J. Matsuda, Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction, 100 Yale L. J. 1329 (1991) (discussing the application of antidiscrimination law to accent bias in employment and arguing that a pluralistic society should have a different standard).
65 See generally Racial Violence Against Asian Americans, supra note 60.
66 See Williams, supra note 1, at 38.
67 See 12 U.S.C. §2803 (1996).
68 See Williams, supra note 1, at 39.
69 See id. at 38–41.
70 See id. at 39.
71 See id.
72 See id. at 40–41.
73 See generally, e.g., Regina Austin, “The Black Community,” Its Lawbreakers, and a Politics of Identification, 65 S. Cal. L. Rev. 1769 (1992) (discussing black criminality); Paula C. Johnson, At the Intersection of Injustice: Experiences of African American Women in Crime and Sentencing, 4 Am. U. J. Gender & L. 1 (1995) (examining stereotypes of black women as criminals).
74 See Williams, supra note 1, at 41.
75 See 42 U.S.C. §3605 (1996).
76 For a more complete discussion of this point, see Beverly I. Moran & William Whitford, A Black Critique of the Internal Revenue Code, 1996 Wisc. L. Rev. 751, 761–62 (1996). (arguing that federal tax laws confer preferential treatment on those who own property that produces a gain on sale such as appreciated real estate, but discriminate against taxpayers who own inner-city slum real estate and are unable to deduct losses from capital assets). Moran also found that:
there is reason to believe that a higher percentage of black wealth than white wealth is invested in housing[;] it is indisputable that on average blacks have less equity in housing than whites, and black houses appreciate more slowly than white houses. Having more capital investments creates a greater opportunity to borrow against those investments and spend the loan proceeds on consumption.
Beverly I. Moran, Exploring the Mysteries: Can We Ever Know Anything About Race and Tax?, 76 N.C. L. Rev. 1629, 1637 (1998) (citing A Black Critique of the Internal Revenue Code, supra, at 677–78).
77 For a discussion of this point, see Keith Aoki, Direct Democracy, Racial Group Agency, Local Government Law, and Residential Racial Segregation: Some Reflections on Racial and Plural Democracy, 33 Cal. W. L. Rev. 185, 200–01 (1997) (discussing residential segregation in a formerly white Los Angeles suburb and how newly arrived Asian and Latino residents “implicitly” participated with white residents in keeping blacks from buying homes in the area).
78 See Neil Gotanda, A Critique of “Our Constitution Is Color-Blind,” 44 Stan. L. Rev. 1, 28–30 (1991).
79 See id.
80 Williams, supra note 1, at 49.
81 Richard Herrnstein & Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (1994). For critiques of The Bell Curve, see generally Measured Lies: The Bell Curve Examined (Joe L. Kincheloe et al. eds., 1996).
82 See Peter Maass, Crime, Genetics Forum Erupts in Controversy; Critics Say Entire Subject is Racist, Wash. Post, Sept. 24, 1995, at B1 (describing the controversial effort by some geneticists to find a link between genes and violent behavior). These geneticists believe there are genetic faults that predispose an individual toward violence and that, once identified, might be corrected through a variety of treatments, thus preventing criminal behavior. See id.; Juan Williams, Violence, Genes, and Prejudice, Discover, Nov. 1, 1994, at 92.
83 See United States v. Thind, 261 U.S. 204, 208 (1923) (holding that an Asian Indian considered Caucasian is not white for the purposes of naturalization). The Court stated that “[i]n the endeavor to ascertain the meaning of the statute we must not fail to keep in mind that it does not employ the word ‘Caucasian’ but the words ‘white persons,’ and these are words of common speech and not of scientific origin.” Id.
84 Justice Scalia, during the oral argument in Metro Broadcasting Inc. v. FCC, twice characterized racial preferences as preferences based on “blood.” See Arguments Before the Court, 58 U.S.L.W. 3623 (Apr. 3, 1990).
When Roger Wollenberg said:
the FCC affirmative action program provides a benefit to those who come from disad-vantaged backgrounds, Scalia pounced. “It’s blood, Mr. Wollenberg, blood. Not background and environment,” Scalia said. “It doesn’t matter where the person of that race was raised, in the most privileged family, in the most exclusive residential community. Blood.”
See David G. Savage, High Court’s Conservative New Guard Steers Debate, L.A. Times, Apr. 1, 1990, at A1 (emphasis added).
Ultimately the Court, in a plurality decision, with Justice Stevens concurring, held that neither the FCC’s minority enhancement credit policy nor the “distress sale” policy violates the equal protection guarantee implicit in the Fifth Amendment. See Metro Broadcasting v. Federal Communications Commission, 497 U.S. 547, 597 (1990). Justice Scalia joined the dissenting opinions filed by Justices O’Connor and Kennedy. See id. at 602, 631. Subsequently, the Court overruled Metro Broadcasting in Adarand Constructors v. Pena. See 515 U.S. 200, 229 (1995). Ironically, Justice Scalia, concurring in part and concurring in the judgment, wrote: “In the eyes of government, we are just one race here. It is American.” See id. at 239 (Scalia, J., concurring).
85 See Williams, supra note 1, at 55–56. For a more detailed discussion of this point, see generally Tanya Kateri Hernandez, “Multiracial” Discourse: Racial Classifications in an Era of Color-Blind Jurisprudence, 57 Md. L. Rev. 97 (1998).
86 See Williams, supra note 1, at 56.
87 See generally, e.g., Natsu Taylor Saito, Alien and Non-Alien Alike: Citizenship, “Foreigness,” and Racial Hierarchy in American Law, 76 Or. L. Rev. 261 (1997); Kevin R. Johnson, Racial Hierarchy, Asian Americans and Latinos as “Foreigners,” and Social Change: Is Law the Way to Go? 76 Or. L. Rev. 347 (1997).
88 For a discussion of this point, see generally Taunya Lovell Banks, Both Edges of the Margin: Blacks and Asians in Mississippi Masala, Barriers to Coalition Building, 5 Asian L. J. 7 (1998) (arguing that both Asians and blacks engage in racially subordinating conduct toward other racialized groups).
89 See Williams, supra note 1, at 61.
90 Id. at 55.
91 See Terrence Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. Chi. L. Rev. 653, 676–79 (1975).
92 The color-blind language invoked today by affirmative action opponents comes from United States Supreme Court Justice John Marshall Harlan’s dissent in Plessy v. Ferguson more than one hundred years ago. See 163 U.S. 537, 552 (1896) (Harlan, J., dissenting). Justice Harlan, in opposing laws that mandated racial segregation in public transportation, wrote: “There is no caste here. Our Constitution is color-blind.” See id. at 559. The majority in Plessy approved a system of legalized racial segregation that conferred still fully unacknowledged privileges on the white majority and reinforced notions of white racial superiority. See id. at 551–52. According to Justice Harlan, legalizing white racial dominance was unnecessary because by 1896 whites already widely believed in black inferiority. See id. at 560–61. Harlan wrote:
State enactments, regulating the enjoyment of civil rights, upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned.
Id.
Justice Harlan’s now famous words, standing alone, suggest that all races are created equal. Civil rights lawyers even used Harlan’s language successfully to persuade the Supreme Court in Brown v. Board of Education that de jure racial segregation in public schools is unconstitutional. See generally 349 U.S. 294 (1954). The Court never uses Justice John Harlan’s words, but the appellants’ brief on reargument invokes Justice Harlan’s words. See 49 Landmark Briefs & Arguments of the United States: Constitutional Law 554 (Philip B. Kruland & Gerhard Casper eds., 1975).
Although Brown signaled the death of the separate but equal doctrine coming out of Plessy, what constitutes equality or equal protection of the laws remains illusive. As Justice Powell, writing in Bakke v. Regents of the University of California, admitted equal protection of the laws, like equality, “is susceptible of varying interpretations.” See 438 U.S. 265, 284 (1978). Thus, what constitutes equality or equal protection of the laws depends on who is doing the defining as well as the historical context of the equality claim. Today racial conservatives and other affirmative action opponents invoke Justice Harlan’s words in fashioning a color-blind rhetoric to resist efforts to dismantle a system of privilege based primarily on “race.” Ironically, this contemporary use of color-blind rhetoric by racial conservatives is closer to Justice Harlan’s true intent in Plessy.
93 See Sandalow, supra note 91, at 676–79.