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  Web Editor:
  Vernellia R. Randall
Professor of Law
The University of Dayton
Web Editor
Race and Health Care
Personal Website                                          x
Legal Education
The JD Project
Theodore Wood
The University of Dayton School of Law
Spring 1998 
This annotated bibliography explores the origin, nature, and merit of the current debate on the need for affirmative action. First, affirmative action is not a legal concept that can be easily articulated by pointing to a single section of the United States Code. It is a complicated mixture of case law, statutes, regulations and the like. Therefore an article is presented which succinctly defines the term and provides an extensive legal foundation to explain the history and current law surrounding affirmative action. Next as the reader may be aware, there is a current move afloat by political conservatives to terminate all affirmative action programs because, as they contend, America is now a color-blind nation therefore eliminating the need for such programs. Many of the most vocal opponents are conservative blacks who ironically, had it not have been for affirmative action, would not be in the position to create a national platform from which to spew their duplicitous rhetoric. These black conservatives hold themselves out as examples of what can be achieved, by other blacks, through simple hard work and dedication. But is this all it takes? Is racism dead? Are there different forms of racism that may not be visible with the naked eye but whose presence is still felt? The focus of this paper is directed towards answering these questions. 

Discussions are presented which explore the origin and nature of racism in America. One article dissects the racial implications of the issues surrounding the O.J. Simpson trial including the reaction to the verdict. Next, a close look is presented at the concept of color blindness. Is America color-blind or does racism still abound? Arguments are presented both for and against affirmative action as well as providing the legal and moral rationale for the continued application of affirmative action type programs. The word "merit" is often used to illustrate one of the aspects of affirmative action, but how does one define merit in this context? Also, a brief glimpse is provided at affirmative action beyond the borders of the United States to compare and contrast this policy as applied overseas with how it is practiced here at home. Finally, an article is provided to explore the consequences of eliminating affirmative action. Would there be a real impact to African Americans, to other racial minorities or to women? This paper addresses these topics and more. 

The following articles are included in this bibliography:
Vernellia R. Randall, Affirmative Action Homepage,, (1997).  

Race Matters, The Pitfalls of Racial Reasoning, Chapter 2. 

Race Matters, Demystifying the New Black Conservatism, Chapter 4. 

Race Matters, Beyond Affirmative Action: Equality and Identity, Chapter 5, 1993. (Excerpts from: Dr. Francis Cress Welsing, The Isis Papers, 1989) 

Race Rules, The O.J. Simpson Trial, Chapter 1. 

Race Rules, In a Color-blind Society, We Can Only See Black and White (Why Race Will Continue to Rule), Conclusion. 

Lecture: California's Proposition 209: A temporary Diversion On the Road to Racial Disaster. 

Popular Legal Culture: Law As Microaggression. 

Affirmative Action: Diversity of Opinions: Classifying Race, Racializing Class. 

The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism. 

Form Over Substance, Not all Black and White: Affirmative Action, Race, and American Values. 

Symposium on affirmative action: Diversity and Damnation 

Worlds Apart, Emerge Magazine, May 1998. 

What Would Be the Impact of Eliminating Affirmative Action? 


Vernellia R. Randall, Affirmative Action Homepage,, 23 (1997). 

Professor Randall's web site contains a collection of different materials all addressing the issue of affirmative action. First, there is her personal testimony to the reader of both she and her father being beneficiaries of affirmative action programs. She uses her own personal history to illustrate the point that not having the highest grades or standardized test scores does not mean that one cannot excel at any chosen endeavor.  

Another great feature of this web site is that it's a clearing house for affirmative action laws and rules. It provides a backdrop of relevant constitutional law, statutes, pending legislation, cases (with summaries) as well as applicable executive orders and regulations. Additionally, she presents the most easily understood definition of affirmative action and defines it in terms of preferences, goals/timetables, counseling/outreach and anti-discrimination policies. Finally, Professor Randall has attached a collection of excerpts from law review articles that summarize many affirmative action issues. Of particular note is the article by Carlos J. Nan, Adding Salt To The Wound: Affirmative Action And Critical Race Theory, 12 Law & Ineq. 553-572, 565-572 (1994). The article comments that President Clinton's 1993 Economic Report found in part that affirmative has been largely unsuccessful. However, this article goes on to cite the futility of the cries of "reverse discrimination" bellowed by many affirmative action opponents today. While citing many startling differences between the social and occupational history of white males and black males, the author discusses the Critical Race Theory of W.E.B. DuBois which notes the "double consciousness" of people of color.(1) That is, people of color are not only able to view the world from the perspective of a minority (the oppressed), but are also able to see from the perspective of the oppressor. 

Professor Randall's affirmative action web site is an on-line library for an array of material addressing this controversial topic. No other place was I able to find so many varied articles, legal sources and links to other types of information pertaining to affirmative action.  

Cornell West, Race Matters, The Pitfalls of Racial Reasoning, Chapter 2, 1993 

Mr. West discusses a condition he refers to as racial reasoning. Racial reasoning is the notion that black people, in order to lend strength to the struggle of equality, must speak with one voice, "close ranks" and focus on one perspective thereby limiting the opportunities for substantive discussions on race and gender. Racial reasoning produces black leaders that focus solely on pigmentation instead of qualification and principle.(2) This reasoning ultimately led to the confirmation of Supreme Court Justice Clarence Thomas, which will probably do more against the cause of black folks than any other black person in the history of our nation. 

Mr. West profoundly challenges the silence of most of the "black leadership" during the Senate Confirmation Hearings of Justice Thomas.(3) His point is that one of the challenges to black people presented by the racial animosity debate is overcoming the inferiority or mediocrity complex engineered through institutional racism. The "Black leadership" is more concerned with token representation than it is with shattering the racist stereotypes that have undermined the legitimate assimilation of blacks into the American Society on a substantial intellectual level.(4) Black leaders were aware that Clarence Thomas was not the most qualified candidate for the job, but still didn't challenge his election even given his dismal performance at the Equal Employment Opportunity Commission where he left thousands of cases uninvestigated. Mr. West suggests that perhaps the lack of opposition of blacks indicated that maybe they believe the stereotype about black intellectual inferiority and feared there was not a better qualified black candidate. 

In this chapter, Mr. West pulls no punches. He quickly converges on a very critical issue relative to a national dialogue on race. That is that black must be multi-dimensional in their thinking and must be ready to challenge tradition. He refers to George Bush's appointment of Clarence Thomas as something of a "trick" which caught the black establishment by surprise. While the focus was so much on the race of the candidate, it never occurred to most that, excepting the Congressional Black Caucus, that a the wrong black Supreme Court Justice could actually be harmful to "the cause." His goal seemed to be to convey that the traditional black leadership missed the opportunity to show that real black identity is more than skin deep. 

Cornell West, Race MattersDemystifying the New Black Conservatism, Chapter 4, 1993 

The media outlets are full of critiques from what is perceived as a new black intellectual conservative voice.(5) While not new, these voices have found a comfortable place in modern mainstream conservative politics. These voices have a unique platform given the current trends of exporting American jobs abroad, importing cheap labor, and the displacement of low and medium skilled jobs with technology. Many of the black conservatives have become popular icons for dismantling anti-discrimination programs such as affirmative action, which are perceived to further dilute to pool of available jobs for non-minorities.  

For the most part, variations of three basic arguments are waged by black conservatives against black liberal thought primarily in exchange for acceptance and sponsorship of their white colleagues. First, the contention is made that most blacks have a "victim mentality" and blame their personal failures on white racism.(6) Next, most blacks are "pathologically" bound to blackness and "dysfunctional aspects of black behavior" which forces them to champion the notion that blacks can do no wrong. Finally, the black conservatives charge that black liberals shun open and honest discussion on the real problems in the black community with a fear of "airing dirty laundry."(7) According to these conservatives, the problem is that advancement is purely a factor of merit, personal responsibility and race simply does not matter. However, Cornell West points out the irony in their contentions. Mr. West asks the reader to consider the attack on affirmative action. (8) "Black conservatives voiced these feelings in the form of attacks on these programs despite the fact that most of them obtained their status by way of he same." (9) He carefully points out that black conservatives are quick to chime they simply desire to be judged by merit not race but they ignore the fact that affirmative action directly resulted from the refusal of whites to view black folk in this manner. Pure "merit," according to Mr. West, is a fiction, especially in hiring. That is, it's common knowledge that hiring decisions consider merit, but also consider personal attributes. Therefore, affirmative action type programs simply balance the scales and influence whether personal attributes such as race will be used against minorities or in their favor. 

Much can be said about blacks that "climb" to positions of prominence and power based in part because of their race but then "kick down the stairs" when others try to use them. The writer clearly exposes the dichotomy inherent in this type of conservative hyperbole. The issues this chapter discloses are not new to black people. The insinuation by black conservatives that most blacks blame everything on racism simply plays up to conservative white audiences. The truth is that most of us are intelligent enough to realize that while racism may not be determinative to our success, that it'is certainly a factor. 

Cornell West, Race MattersBeyond Affirmative Action: Equality and Identity, Chapter 5, 1993. (Excerpts from: Dr. Francis Cress Welsing, The Isis Papers, August 1989) 

Chapter 5 focuses on the history and continued need for affirmative. Wealth, power and income, as they exist today, were not available to even the most qualified blacks until several decades ago.(10) Even then, affirmative action played a role. The writer points out that America has always had these type programs which have ranged from "contracts, jobs and loans to selected immigrants" to VA mortgages and GI benefits to veterans.(11) He states that if racism disappeared and the effects of past discrimination were no longer a factor, then affirmative action could be abolished. However, the history of our nation suggests that if these type programs were to end now, that race and gender based discrimination would "return with a vengeance."(12)  

Dr. West introduces a different theme in this chapter by showing that one of the lingering effects of slavery and past discrimination is the continued attack on black humanity and racist stereotypes which are designed to destroy black self-image. (13) He suggests that this psychological attack is perhaps the most destructive element of racism. Any meaningful strides to combat racism must address its impact on black socio-economics and black identity (the ability to love one's self psychologically, and physically). Much of the myth surrounding black sexuality has been perpetuated to destroy the self-esteem of blacks. Many blacks hate their own bodies because of "their black noses, hips, lips and hair etc." An additional point raised by Dr. West, as he quotes from Dr. Francis Cress Welsing is: White fear of black sexuality is a basic ingredient of white racism. This is evidenced, according to Dr. Welsing, by the repeated castrations of black men lynched to prevent the dilution of the white race through interracial sex and marriage. (14) 

Much of this material, while not new, is never discussed in the mainstream media. One tends to truly grasp the profundity of the underlying goals of racism from the ideas discussed in this chapter and in the accompanying ideas from Dr. Welsing's book. When you understand the power of "inner dialogue," the importance of self-esteem and self-belief as captured in the proverb "as a man thinketh in his heart, so is he," you then understand why racism is so destructive. This chapter really drives home this concept. 

Dr. Michael Dyson, Race Rules, The O.J. Simpson Trial, Chapter 1, 1997 

Dr. Dyson's opening chapter dissects various aspects of the O.J. Simpson trial and uses them to carefully illustrate that blacks and whites continue to view the world through the prism of race. Simpson, according to Dyson, was an example of excellence to everyone. His athletic skills were relished by blacks and his "colorless" image admired by whites.(15) Though up until this time, many folks were ready to declare the virtual death of racism, Simpson's murder trial forced the country to face issues of racism like we have never seen in recent times.(16) Verdict: Not guilty! On this day, whites were forced to see the justice system from a vantage point familiar to blacks for years.(17) "They began to see themselves "as a group denied special privileges rather than guaranteed them."(18) Though, most whites blamed Johnny Cochran for the injection of "the race card" into the trial, Dr. Dyson points out that race was used in this case from the very start. (19) 

Race determined which jurors to select. Race governed the decision to bring black attorney, Christopher Darden, onto the prosecution team. Race influenced the prosecution's decision to present Mark Furman as a witness though they knew he was a bigot.(20) And most of all, race influenced the divergent reactions, between blacks and whites, to the verdict. This opening chapter in Dr. Dyson's compares and contrasts the irony in the acquittal of police officers seen on video brutally beating Rodney King with the verdict in the O.J. trial.(21) Police brutality and harassment were not strangers to the black community though redress was uncommon. However, in the case of Rodney King, there was irrefutable, incontrovertible evidence that the entire world witnessed. Yet, it was still explained away and his police attackers acquitted. (22) When it came to O.J., for most blacks and some whites, the sloppy collection of evidence, compelling testimony of defense expert witnesses, and unexplained appearances of blood and gloves equated to reasonable doubt. (23) When blacks viewed the evidence, they saw it through the eyes of their collective experiences. For once the system worked the way it was supposed to. However, from the perspectives of most whites and some blacks, many of traditional racist stereotypes were factors: The mandate of a conviction when a black man is accused of murdering a white person, the lack of intelligence of the mostly black jurors, and the ignorance of blacks that applauded the verdict. However, most whites were outraged. For the first time, whites were able to see "the gulf between legality and morality, which is the same thing that blacks have been protesting for years with virtually no support from whites." (24) 

Race Rules drives home the cold hard reality and "rawness" that continues to simmer below the surface. Race continues to be a dominant sub-text and pervasive force in American society. In some cases, Dr. Dyson seems to be pre-occupied with many of the social and personal choices of O.J. It's as though Dr. Dyson may be venting some personal animosity. However, being an O.J. trial addict and having followed nearly all of the legal commentary, I found this chapter to be absolutely gripping. After reading this, it would be difficult to understand how even the most racially passive person could suggest that America is color blind.  

Dr. Michael Dyson, Race Rules, In a Color-blind Society, We Can Only See Black and White (Why Race Will Continue to Rule), Conclusion, 1997 

This nation faces a formidable dilemma: We cannot overcome the effects of racism without a solution that involves taking race into account.(25) The author explains to the reader that race is the underlying determinant of how we "allocate resources," communicate and interact with each other.(26) It continues to influence how justice is given and social privileges are enjoyed. Race consciousness is the rule, not the exception, and if this nation is to ever escape its racist past, we must come to grips with the critical way in which race continues to influence our lives and motives. It is necessarily true that since skin color was the sole basis for many of our national institutions, it MUST play a role in the solutions to the problems these institutions have created.  

Given the revelations and rules of race presented by Dr. Dyson, it becomes clear that race does INDEED matter. Dr. Dyson challenges the reader to examine their most basic beliefs regarding race and racism in the context of recent national events. He has a unique style of writing that makes it difficult, in a good way, to determine if you're being taught or entertained. To say that his writing is thought provoking would be rhetorical. Perhaps a better way to put it is that he forces you enjoy what he has to say as well as how he says it. His research is extensive and his critique objective. 

Derrick A. Bell Jr., Lecture: California's Proposition 209: A Temporary Diversion On the Road to Racial Disaster, 30 Loyola of Los Angeles Law Review, 1447 (1997) 

This author explores the motives for establishing and terminating remedies for racial injustice. He contends that history clearly illustrates society's willingness to sacrifice the rights of people of color for the advancement of economic or political interests. (27) An additional charge is that society will only remedy racial wrongs when the remedy furthers these same interests.  

Great emphasis surrounding affirmative action discussion is placed in the term "merit." However, you hardly ever hear this term outside of affirmative action arguments because merit has little to do with "making it." (28) "In short, the phony pennant of merit serves as the false banner or color-blindness, used as justification for opposition to affirmative action."(29) The author poses the question that if a genuine concern exists regarding college admissions based upon merit, why is there no discussion regarding termination of "legacy admits." Also, while the general implication is that merit refers to standardized test scores, these determinants are more accurate reflections of the socio-economic status of the parents.(30) 

Mr. Bell's theory is that Plessy v. Ferguson is the prime example of a policy that "sacrificed the rights of black people in order to gain the support of whites for business-oriented economic policies that harmed a great many whites." (31) While Brown v. Board of Education seemed to represent an end to the "separate but equal" fiction, it was only instituted because the U.S. was attempting to gain credibility with mostly non-white third-world nations and the U.S. discovered that Jim Crow policies did not make for attractive sales brochures.(32) The Brown directive was not implemented until the 1960s with the enactment with additional civil rights laws. The author asserts that once whites discovered that corrective action was "more than condemning the use of fire hoses and police dogs" on innocent children, but entailed foregoing "white only" privileges, willingness subsided and fear of jobs and well-being emerged. (33) Proposition 209, which is an aggressive effort to eliminate all affirmative action programs in California is similarly representative of this same concern. Proposition 209, according to Mr. Bell, is simply a diversion. The real threat to white economic security is "growing reliance on automation, deportation of jobs to third-world countries, and the importation of cheap foreign labor.(34) However, the current strength of the affirmative action opposition, painted in black face (black conservatives leading the charge) once again sacrifices the legitimate rights of people of color to appease whites. 

Mr. Bell's essay was perhaps the most militant perspective on the affirmative action debate. His militant tone, however, does not undermine the merit of his observations. His point surrounding the word "merit" is one well taken. His theme is logical and compelling and his ideas will probably pick up steam as this debate wages on. 

Peggy C. Davis, Symposium: Popular Legal Culture: Law As Microaggression, 98 Yale Law Journal 1559 (1989) 

The primary focus of Ms. Davis's article is the introduction of her concept of microgression: The effect of "incessant, often gratuitous and subtle offensive comments" directed at blacks by whites.(35) Microaggression is significant to the debate of the continued need for affirmative action because it represents one of the remaining, and perhaps most harmful, vestiges of slavery and the pre-civil rights era. As legal scholars and courts determine the fate of affirmative action, inevitably a discussion of "rationale" enters the equation. Though there are many, such as the need for diversity and a counter to the effect of current discrimination to name a few, correction for the effects of "past discrimination" is high on the list. 

This essay examines the psychological and sociological implications of a scene depicted in a Bronx, New York courthouse. (36) The scene entails the following exchange. "A white assistant city attorney takes the court elevator up to the ninth floor. At the fifth floor, the doors open. A black woman asks: 'Going down?' 'Up,' says [the city attorney]. And then, as the doors close: 'You see? They can't even tell up from down. I'm sorry, but it's true." While the black woman's question could have been interpreted several different ways, the city attorney chose to view the woman through a traditional stereotype that suggests blacks have an inferior intellect.(37) Other suggestions from this stereotype imply that blacks are lazy, boisterous, occupationally unstable, ignorant, superstitious etc. Ms. Davis does not suggest that this interpretation of the elevator event was intentional on the part of the City attorney. But what Ms. Davis does suggest is that these types of unconscious stereotypes, or "microaggressions", color the perceptions of black people by white people at every level of the human experience. 

The writer traces the origin of this type of "color caste system" mentality back to an 1858 U.S. treatise stating in part: 

"...[the Negro] exhibits such a weakness of intellect… so debased is their [moral] condition generally, that their humanity has been even doubted, …Lust is his strongest passion; and hence, rape is an offence of too frequent occurrence…" 
The point is that this language, though part of an 1858 treatise, influenced the upbringing and heritage of the city attorney. This type of racial and social discrimination was designed to place blacks in inferior positions to whites and continues to dominate black white relations today in a preconscious or unconscious fashion.(38) Microaggressive attitudes of "presumed superiority" continue to govern racial interactions and reflect in hiring decisions, admissions decisions, sentencing hearings, and every other aspect of American life.  

This is an extremely insightful article. It conveys topics and considerations that NEVER factor into the current discussions surrounding the need for affirmative action and the continued effects of racism in the U.S. She presents an incredible amount of research and energy in illustrating how deep the roots of racism have been imbedded into whites and blacks. After reading her essay, it's easy to understand how these attitudes can survive from generation to generation in pseudo genetic fashion. 

Fran Ansley, Affirmative Action: Diversity of Opinions: Classifying Race, Racializing Class, 68 University of Colorado Law Review 1001, Fall 1997 

This article, while partly a critique of another article by Law Professor Deborah Malamud on the issue of race and the Black Middle Class, presents several of the most popular justifications for the continued need of affirmative action. (39) To begin his critique, the author comments on the suggestion of Professor Malamud that there are only three rationales and that these rationales are dissimilar to one another: The correction of economic inequality, promotion of diversity, and redress(40) 

Professor Ansley, on the other hand, cites six different rationales. First, there is the need to compensate for past wrongs.(41) In this area, Ansley agrees with Professor Malamud. Ansley notes that the United States was "born of violent colonization, one where the great bulk of the land was expropriated by force from indigenous peoples and where chattel slavery once was widespread and critical to the national economy." From the writer's perspective, the mere memory of this often overlooked past justifies the need for affirmative action. (42) Most importantly, these types of harms, wrongs inflicted on persons of color, "spill over" from person to person in the form of stereotypes.(43) The net result is that the children born into these minority groups inherit the "cumulative effects of macro- and micro-level discrimination before they are ever in a position" to have a specific and identifiable harm that many consider a prerequisite to reparation.(44) Next, there are the rationales of "compensating present bias," and "distributing resources vital to survival and participation."(45) An additional but seldom cited rationale is "preventing social disintegration and strife." This is somewhat fueled by the fears of white people that black folk may actually "start the revolution." The final two justifications noted by Ansley are "achieving institutional goals" and "bestowing charity upon the non-threatening poor."  

This article could be renamed "affirmative action justification 101." It presents one of the most succinct, yet comprehensive presentations on the underlying themes and goals of affirmative action. The article is not repetitive and serves the dual role of showing why affirmative action is needed despite some of the apparent strides we've made towards fighting racism, while at the same time the article carefully addresses many of the points raised in the article by professor Malamud. 

Charles R. Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stanford Law Review 317, January 1987 

This article does two things. First, it analyzes what has come to be known as the "doctrine of discriminatory purpose" established by Washington v. Davis,(46) requiring plaintiffs to first prove a discriminatory purpose when challenging the constitutionality of a facially neutral law.(47) Professor Lawrence calls this a "motive centered" doctrine effectively placing the burden on the plaintiff to prove a purposeful discriminatory intent on the part of the defendant when applying the equal protection clause to his dispute. The real problem here, and the second aspect of this article, notes that all discrimination and perhaps the most injurious type of discrimination is not born of conscious intent, but subconscious actions. That is, "racial inequality exists irrespective of the decision maker's motives."(48) The basic idea overlooked by this doctrine is that racism is not only a crime, but it's a disease that infects nearly everyone.(49)  

It's impossible for us to know the ways that our personal experiences have influenced our beliefs and perspectives about race or may unknowingly govern our actions.(50) Therefore, even what we may perceive as the most innocuous behavior on our part could be an unconscious reaction to some deeply embedded racial stereotype.(51) Two theories explain the nature of unconscious discriminatory beliefs. First, the Freudian theory states that unconscious repression is a defense mechanism for the discomfort of guilt. Secondly, the theory of cognitive psychology suggest that the human mind absorbs its own belief systems from the environment, authority figures, peers, and parents etc., and unconsciously orders our perceptions of the world.(52)  

This article offers a theory and critique on the evidence of unconscious racism. It also attempts to answer questions such as: A) why should we recognize unconscious racism in interpreting and applying the equal protection clause, b) how do we interpret unconscious racism and apply it in specific cases and finally, c) if we cannot make unconscious racism actionable, is there a "neutral principal" to apply to political decisions?(53) To really drive home his point, the author cites examples of unconscious racism in everyday life in which the actors are unaware of their actions.(54) He cites other examples where the actor is perfectly aware of his actions, but doesn't have a clue that these actions are born of injurious racial stereotypes. Examples include references by sports broadcasters to black athletes as "little monkeys," Nancy Reagan's appearance before a public gathering during her husband's presidential campaign, and making the statement that she wished he could be there "to see all these beautiful white people." The real problem is that some whites, for example, are only exposed to blacks through mass media roles as criminals, musician or comedians.(55) However, there is no way to tell when these stereotypes influence a hiring decision where a white candidate may be seen as "more intelligent" or "more collegial." That is, the interviewer is unaware his decision was influenced by unconscious racism.(56) 

Professor Lawrence, who is noted for many of his outspoken observations about racism, finally writes about what most black people have known for years. It has long sense been noted by black professionals that when it comes to competence on the job there are different burdens of proof between whites and blacks. The notion is that if you're white, it's ordinarily assumed you can do the work and you're presumed competent until proven otherwise. However, if you're black, no matter what the nature of the profession, you're generally presumed to be incompetent until proven otherwise. This is one of the longest law review articles I have ever read. It's good that someone has finally addressed the most pervasive, but most difficult type of racism to prove.  

Christopher Edley Jr., Form Over Substance, Not all Black and White: Affirmative Action, Race, and American Values, 110 Harvard Law Review 1645, May 1997 

While the current debate rages over the need and place of affirmative action, this book by Mr. Edley explores the potential forms that affirmative action could take in the future. This author presents three.(57) First, there is the "color blind vision" of affirmative action. This version would entail race based measures as remedy only for people who could prove they are direct "victims of discrete acts of discrimination."(58) The second version of affirmative action would be called the "opportunity and anti-discrimination" version. It would seek to provide equal opportunity for minorities but would not require equal results. This version acknowledges that the harms of racism create "economic and social disparities among races." This version of affirmative action would seek to correct these harms. Finally, a third version would be called "remediation plus inclusion." This version is the "preferred" approach of the author and essentially suggests that diversity alone constitutes "a compelling state interest."  

The author presents several different arguments in support of his position. First, he notes that the traditional remedial nature of affirmative action is too narrow because it must link specific harms to specific people and also ignores the so-called 'lingering effects" of past wrongs.(59) Next, he suggests that diversity is good for the individual, non-minorities and the community at large. Finally, diversity is "institutionally beneficial." He considers the example of police officers patrolling neighborhoods that primarily reflect their own ethnicity. He also cites the institutional enrichment created by being able to tap the entire human potential.(60) While this author does introduce the touted stigmatizing effect that some argue affirmative action inflicts upon its beneficiaries, his article provides a refreshing look forward.  


Jim Chen, Symposium on affirmative action: Diversity and Damnation, 43 UCLA Law Review 1839, August 1996 

This essay, while anti-affirmative action, acknowledges that "color-consciousness" remains a significant factor in the lives of everyday Americans.(61) However, his contention is that affirmative action has missed the mark.(62) In fact, he suggests that affirmative action goals may be the only remaining reason the annual census continues to count and make note of race.(63) His contribution to the affirmative action debate is that "diversity" is the only true legally permissible rationale for its continued use. 

According to Mr. Chen, we all have heard all the arguments for and against affirmative action far too long. In fact he presents both argument as follows. The anti-affirmative argument conveys that affirmative action equals racial preferences no matter which group is favored. Additionally, they reinforce traditional racial stereotypes.(64) The argument in support of affirmative action chimes "color-blindness sounds good in theory but ignores social reality." Given this country's history of slavery, the continued existence of racism, and the need for diversity, affirmative action is a necessity.(65) His ability to summarize these arguments in only a few words, according to Mr. Chen, suggests the "idiocy" of this debate. He asserts that the debate should now converge on the real meaning of affirmative action: Diversity. 

He contends that the term "diversity" has become synonymous with "affirmative action." The reason is that of all of the rationales for affirmative action, "diversity" is the only one that the Supreme Court has not struck down.(66) This remains the unintended legacy of the Bakke decision where Justice Powell stated "diversity is a constitutionally permissible goal for an institution of higher education."(67) The problem is that the diversity referred to in Bakke does NOT mean simple ethnic diversity.(68) Diversity must be much broader than race. "Diversity means students from different states…city dwellers and farm boys; violinists, painters and football players, historians and potential stockbrokers." In fact Mr. Chen goes as far to say that "Pursuing racial diversity independent of intellectual diversity is an affront to nonwhites." (69)  

This article takes off from the "meaning of diversity" continues on for another forty pages or so. I found this to be one of the most difficult articles to follow not because of length, but because there seemed to be uncertainty whether Mr. Chen was presenting himself as a poet or scholar given the way the article is written. Essentially, Mr. Chen has surmised that the dialogue on affirmative action should have ended long ago since the Supreme Court has outlawed all rationales except diversity. He suggests that if the focus and energy shifts to the diversity argument, either one of two things will happen. Either the Supreme Court will eventually conclude diversity is no longer a compelling government interest, as did the Fifth Circuit in Hopwood v. Texas, or we can make the meaning of "diversity" so broad that it doesn't mean anything.  

Kenneth J. Cooper, Worlds Apart, Emerge Magazine, May 1998 

Mr. Cooper provides some unique insights into the use of affirmative action beyond the borders of the United States. While affirmative action laws in the U.S. are the result of confusing mixtures of case law, statutory law and executive orders, places such as India, Malaysia, Namibia and South Africa have written affirmative action into their constitutions.(70)  

In Malaysia and India, affirmative action receives strong support from the government as a means to normalize opportunities for minorities that have endured years of racial oppression.(71) India has been practicing affirmative longer and more aggressively than any other place in the world. Though conservative opponents of the U.S. based affirmative action routinely misstate its nature by referring to it as set asides and quotas, in India quotas are the rule.(72) They have been applied widely in the educational and employment arena since the 1950s for members of their caste system such as the untouchables. For example, in India's parliament, the "outcaste" and other indigenous tribes are guaranteed a number of seats numerically proportional to their representation.(73)  

Though India has the oldest affirmative action program, Malaysia's implementation is considered to be the most successful. (74) Malaysia has achieved success without the need for quotas, where a "Malay majority has now become accepted as the norm in education and government employment."(75) The Malaysian system has created a virtual redistribution of wealth where many Malays, previously having only 1% of the Malaysian economy in 1969 now have more than 20%. In comparable U.S. terms, this would be like distributing all of the shares of stock traded on the New York Stock Exchange to black people in proportion black representation in the U.S. population.  

Namibia and South Africa have recently rewritten their constitutions and have similar systems though they have borrowed affirmative action language from U.S. laws. For example, South Africa's constitution simply contains the following language: "Affirmative Action is allowed." (76)  

This writer laments the notion that U.S. conservative courts and their "Uncle Tom mouthpieces" are slowly dismantling affirmative action, using the same language used to create it, by attempting to declare them unconstitutional and violative of individual rights. Mr. Cooper also points out, however, that affirmative action programs abroad are not totally devoid of trouble. in India many of the "Upper Caste" members are beginning to make similar argument to those of the U.S. conservatives and Malaysia's system is vulnerable to corruption.(77)  

This easy to follow article is hard hitting with points not made in much of the other available affirmative action literature. Though it's no mystery that the writer is a supporter of U.S. based affirmative action, his article contrasts its strengths and weakness of its non-U.S. sibling. The presentation of this article seems almost "required reading" for anyone studying affirmative action whether they be for or against. It's important to know that the applicability of the affirmative action concept is much broader that the U.S. shore, since racism certainly is. 

Erwin Chemerinsky, Symposium on Race Relations in America: What Would Be the Impact of Eliminating Affirmative Action?, 27 Golden Gate University Law Review 313, Spring 1997 

Professor Chemerinsky begins his article with an 1883 quote from Supreme Court Justice Joseph P. Bradley (taken from a civil rights case) citing the arrival of the end of racial discrimination and the termination of the need for affirmative action type programs only 20 years after the end of the Civil War: 

When a man has emerged from slavery and by the aid of beneficent legislation has shaken off the inseparable concomitant of that state, there must be some stage in the progress of his elevation where he takes the rank of a mere citizen and ceases to be a special favorite of the laws.(78)
Professor Chemerinsky notes that the relevance of this quote is especially significant today. He cites that the civil war era was followed by over 100 years of Jim Crow laws which segregated all aspects of Southern Life. It was only about 40 decades ago when the law declared the inequity of the separate but equal doctrine and fewer years still, 1964, when the law outlawed discrimination. Finally, he completes the foundation for his argument by noting that even in the 1970s that an African American presence in California medical schools and in state employment ranks, was virtually non-existent.(79) It was this backdrop from which affirmative action was born. The problem the article addresses is that one of the greatest myths of the "end affirmative action chorus" is the notion that discrimination against minority racial groups and women is a thing of the past.(80)  

The most gripping aspect of his analysis relates to recent studies conducted by the Urban Institute to assess the extent and severity of racism today. For example, one study of racism in employment practices recruited college students, both black and white. All the students looked presentable and all the students used the same resume: The only difference in the applicants was race. The bottom line: Whites received job offers 41% more than blacks and were offered wages 17% higher. Additionally, whites were told of additional job opportunities 48% of the time.(81) He states that it would be nice if our nation was race and gender blind and maybe someday it will be. However, at the present "race and gender matter and we can't pretend they don't."(82)  

Professor Chemerinsky offers a very frank discussion on the realities of modern day racism. As he also observes, its interesting that the opponents of affirmative action want to discuss the potential harms these programs can inflict on non-minorities as they throw around the term "color-blind." However, color-blindness is a myth. While there may be fewer lynchings, fewer klan rallies, and maybe fewer black people are called "nigger" to their face, the impact of racism is as significant as it ever was. This is a very informative article. 



1. Vernellia R. Randall, Affirmative Action Homepage, 23  


2. Cornell West, Race Matters, Ch 2, 47  


3. Id. at 36  


4. Id.  


5. Cornell West, Race Matters , Ch 4, 73  


6. Id. at 75  


7. Id.  


8. Id. at 78  


9. Id.  


10. Cornell West, Race Matters, Ch. 5, 93  


11. Id. at 94  


12. Id. at 95  


13. Id. at 98  


14. Id. at 125  


15. Dr. Michael Dyson, Race Rules, Ch 1, 13  


16. Id. at 30  


17. Id. at 32  


18. Id.  


19. Id. at 41  


20. Id. at 43  


21. Id. at 38  


22. Id.  


23. Id.  


24. Id. at 32  


25. Cornell West, Race Matters, Conclusion, 223  


26. Id. at 223  


27. Derrick Bell, 30 Loy. L.A. L. Rev. 1449  


28. Id.  


29. Id.  


30. Id. at 1450  


31. Id. at 1451  


32. Id.  


33. Id. at 1452  


34. Id. at 1460  


35. Peggy C. Davis, 98 Yale, L.J. 1560  


36. Id. at 1561  


37. Id.  


38. Id. at 1566  


39. Fran Ansley, 68 U. Colo. L. Rev. 1001  


40. Id. at 1010  


41. Id. at 1014  


42. Id. at 1015  


43. Id. at 1016  


44. Id. at 1017  


45. Id. at 1020  


46. Washington v. Davis, 426 U.S. 229 (1976)  


47. Charles R. Lawrence, 39 Stan. L. Rev. 317  


48. Id. at 319  


49. Id. at 321  


50. Id. at 322  


51. Id.  


52. Id. at 323  


53. Id. at 337  


54. Id. at 339  


55. Id. at 343  


56. Id.  


57. Christopher Edley Jr., 110 Harv. L. Rev. 1645  


58. Id. at 1646  


59. Id. at 1647  


60. Id.  


61. Jim Chen, 43 UCLA L. Rev. 1839  


62. Id. at 1841  


63. Id.  


64. Id. at 1844  


65. Id. at 1845  


66. Id. at 1857  


67. Id. at 1858  


68. Id. at 1878  


69. Id. at 1880  


70. Kenneth Cooper, Emerge Magazine, 62  


71. Id.  


72. Id.  


73. Id. at 64  


74. Id.  


75. Id.  


76. Id.  


77. Id. at 66  


78. Erwin Chamerinsky, 27 Golden Gate Univ. L. Rev 313  


79. Id. at 314  


80. Id.  


81. Id. at 315  


82. Id. at 325 

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