Equal Treatment and the Reproduction of Inequality

Fordham Law Review

Volumn 69, Issue 5, 2001, Pages 1753-1783

  Harris, Cheryl I ^a  

^a NONE

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EID: 0035591570     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (97)

1. Kenneth Burke, Permanence and Change: An Anatomy of Purpose 49 (3d ed. 1954).
2. Thurgood Marshall, Commentary, Reflections on the Bicentennial of the United States Constitution, 101 Harv. L. Rev. 1, 2-4 (1987).
3. Sanford Levinson summarizes the debate as follows: Two classic approaches to understanding a written constitution involve emphasizing either the allegedly plain words of the text or the certain meaning to be given those words through historical reconstruction. I think it fair to say that these particular approaches are increasingly without defenders, at least in the academic legal community. . . . As Richard Rorty has pointed out, however, there are at least two options open to critics who reject the two approaches outlined above but who, nonetheless, remain interested in interpreting the relevant texts. The first option involves the use of an allegedly more sophisticated method to extract the true meaning of the text. [This is a] "weak" textualist [approach] . . . Perhaps the best current example of such a "weak" textualist is John Hart Ely, whose Democracy and Distrust, . . . is merely the latest effort to crack the code of the United States Constitution and discover its true essence. . . . What unites Ely and most of his critics, though, is the continued belief that there is something "in" the Constitution that can be extracted if only we can figure out the best method to mine its meaning. [In opposition to this view, strong textualists like Stanley Fish argue] '[i]nterpretation is not the art of construing but the art of constructing.' Sanford Levinson, Law as Literature, 60 Tex. L. Rev. 373, 378-81 (1982) (citations omitted). This is not an entirely new observation or controversy. As Charles Evans Hughes has famously noted, "We are under a Constitution, but the Constitution is what the judges say it is." Charles Evans Hughes, Speech before Elmira Chamber of Commerce, May 3, 1907, in Addresses of Charles Evans Hughes, 1906-1916, at 179, 185 (1916).
4. Akhil Amar advances a strong claim for giving primacy to the text but allows that text will not lead one to clear answers. Akhil Reed Amar, The Supreme Court, 1999 Term-Foreword: The Document and the Doctrine, 114 Harv. L. Rev. 26, 28 (2000) ("[E]ven after close study the document itself will often be indeterminate over a wide range of possible applications.").
5. Primary examples include the principles of "separation of powers" and "federalism." See id. at 30 (noting that "the phrases "'separation of powers'" and "'checks and balances' appear nowhere in the Constitution, but these organizing concepts are part of the document, read holistically"). Even vociferous textualists like Scalia occasionally lapse into non-textually based arguments about interpretive principles. See, e.g., Printz v. United States, 521 U.S. 898, 905 (1997) (noting that "[b]ecause there is no constitutional text speaking to [the question of the constitutionality of compelling state officials to execute federal laws], the answer . . . must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court."). Indeed, Scalia contends that it is through "consideration of the structure of the Constitution" that he "discern[s] among its 'essential postulates,'" a principle of "dual sovereignty" that controls the case. Id. at 918 (citation and alteration omitted).
6. I freely acknowledge that principles of autonomy, individual liberty, as well as conceptions of property have been read to restrict governmental action designed to eliminate inequality. Examples include R. A. V. v. City of St. Paul, 505 U.S. 377 (1992) (invalidating a municipal bias-motivated crime ordinance as violative of First Amendment protections of free expression), and Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (holding that First Amendment expressive rights of parade organizers included the right to exclude openly gay and lesbian Irish-American group from marching under banner identifying the group in Boston's St. Patrick's Day Parade). Since the early days of the Fourteenth Amendment, the provision has been read to incorporate a state action requirement used to invalidate congressional legislation adopted to address racial inequality. See Civil Rights Cases, 109 U.S. 3 (1883). More recently, in a 5-4 decision, the Court invalidated provisions of the Violence Against Women Act on similar grounds. The Court held that the reach of Section 5 enforcement powers did not encompass the creation of a federal civil cause of action for victims of gender-motivated violence, as the injuries were caused by private actors. United States v. Morrison, 529 U.S. 598 (2000). Moreover, the Court's insistence on proof of specific intent to discriminate in cases where facially neutral laws have produced racially disparate impact severely limits the reach of the Constitution in addressing racial and other forms of inequality. See, e.g., McCleskey v. Kemp, 481 U.S. 279 (1987). While all of these limitations have been prevalent and persistent, my point is simply that nothing in the text of the Constitution itself compels such results.
7. As expressed by Laurence Tribe: [A] distinction should be made between two basic ways in which the constitutional norm [of equal protection] can be violated. First, equality can be denied when government classifies so as to distinguish, in its rules or programs, between persons who should be regarded as similarly situated . . . . Second, equality can be denied when government fails to classify, with the result that its rules or programs do not distinguish between persons who, for equal protection purposes, should be regarded as differently situated. So it was with the majestic equality of French law, which Anatole France described as forbidding rich and poor alike to sleep under the bridges of Paris. . . . As the Supreme Court observed in Jenness v. Fortson, "sometimes the greatest discrimination can lie in treating things that are different as though they were exactly alike." Laurence Tribe, American Constitutional Law, 1438-39 (2d ed., 1988) (citation omitted).
8. See Burke Marshall, A Comment on the Non-Discrimination Principle in a "Nation of Minorities", 93 Yale L.J. 1006, 1006 (arguing that discrimination and subordination were imposed not against individuals but against a people so that the remedy "has to correct and compensate for the discrimination against the people and not just discrimination against identifiable persons.") This does not mean that all members of the group experience the exclusion the same way. Nevertheless, racial subordination is by definition focused upon the domination of groups. Thus, it is impossible to understand equality and inequality without also having sustained engagement with groups.
9. 528 U.S. 495 (2000). The Court's decision in Rice is based not on the Equal Protection clause of the Fourteenth Amendment but the Fifteenth Amendment guarantee that "the right to vote shall not be abridged on account of race, color or previous condition of servitude." Despite the different sources for the analysis, the Court's vision of what equal protection requires under the Fourteenth Amendment and what equality commands under the Fifteenth are quite closely related. See Gomillion v. Lightfoot, 364 U.S. 339 (1960) (redrawing of city's boundaries to exclude blacks from participating in city elections challenged under the Fourteenth and Fifteenth Amendments).
10. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
11. The application of equal treatment as equal protection to cases explicitly involving race and the rights of subordinated groups is my focus here, but it is worth noting that the principle of equal treatment as equal protection "has legs" and has found its way into cases in which race has never been mentioned with, I would argue, equally pernicious results. See Bush v. Gore, 121 S. Ct. 525 (2000) (reversing a decision of the Florida Supreme Court requiring a manual recount in certain contested counties of ballots cast in a presidential election because the process had insufficient guarantees of "equal treatment" of all ballots-equal treatment being what equal protection requires). The profound irony of the case is that while the racial dimensions of the vote counting problems loomed large in the public debate, race did not figure anywhere in the Court's discussion of the issues.
12. As Leslie Espinoza says: This is the problem of race. It is both easily knowable and an illusion. It is obviously about color and yet not about color. It is about ancestry and bloodlines and not about ancestry and bloodlines. It is about cultural histories and not about cultural histories. It is about language and not about language. We strive to have a knowable, systemic explanation for race. We struggle with its elusivity. . . . Race should be rational and it is not. Leslie Espinoza & Angela P. Harris, Afterword: Embracing the Tar-Baby - LatCrit Theory and the Sticky Mess of Race, 85 Cal. L. Rev. 1585, 1609-10 (1997).
13. As John powell argues, "At any given moment race has a number of different meanings and these meanings often interact with each other in complex ways." John a. powell, The "Racing" of American Society: Race Functioning as a Verb Before Signifying as a Noun, 15 Law & Ineq. 99, 114 (1997).
14. For an example of a definition of race that endeavors to reveal the emptiness of the construct, see Kwame Anthony Appiah, In My Father's House: Africa in the Philosophy of Culture 28-46 (1992). Appiah contends that because there is no coherence to the idea of race, there really is nothing to be gained by using or invoking "race". Instead, he argues that the differences we talk about when we invoke race are really cultural. Id. at 45. Yet, even assuming that race is really a "metonym for culture," id. there is no evidence that recognizing cultural differences as cultural instead of racial prevents the phenomenon of racialization or racial formation. See Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, 55 (2d. ed. 1994) (describing "racial formation" as "the sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed" (emphasis omitted)). Thus, for example, even if we acknowledge that it makes little sense to think of Jews as a "race" since most differences denoted by that identity are really cultural and religious in nature, this recognition of the identity as cultural does not prevent Jews from being racialized in certain periods. In those moments, Jews as a "race" come to signify a complex stereotype: they are constructed as racially distinct, typified as both intellectually superior and morally deficient. See Sander L. Gilman, Smart Jews: The Construction of the Image of Jewish Superior Intelligence (1996). For a critique of Appiah's argument, see Jayne Chong-Soon Lee, Navigating the Topology of Race, in Critical Race Theory: The Key Writings That Formed the Movement 441-49 (Kimberlé W. Crenshaw et al. eds., 1995) (arguing that Appiah's question is incorrectly focused on the content of the category of race rather than the social processes which brought about "race"). I believe that Orlando Patterson makes a similar error by arguing that references to ethnicity should replace the use of "race". See Orlando Patterson, The Race Trap, N.Y. Times, July 11, 1997, at A27.
15. For an example of a definition of race that endeavors to reveal the emptiness of the construct, see Kwame Anthony Appiah, In My Father's House: Africa in the Philosophy of Culture 28-46 (1992). Appiah contends that because there is no coherence to the idea of race, there really is nothing to be gained by using or invoking "race". Instead, he argues that the differences we talk about when we invoke race are really cultural. Id. at 45. Yet, even assuming that race is really a "metonym for culture," id. there is no evidence that recognizing cultural differences as cultural instead of racial prevents the phenomenon of racialization or racial formation. See Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, 55 (2d. ed. 1994) (describing "racial formation" as "the sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed" (emphasis omitted)). Thus, for example, even if we acknowledge that it makes little sense to think of Jews as a "race" since most differences denoted by that identity are really cultural and religious in nature, this recognition of the identity as cultural does not prevent Jews from being racialized in certain periods. In those moments, Jews as a "race" come to signify a complex stereotype: they are constructed as racially distinct, typified as both intellectually superior and morally deficient. See Sander L. Gilman, Smart Jews: The Construction of the Image of Jewish Superior Intelligence (1996). For a critique of Appiah's argument, see Jayne Chong-Soon Lee, Navigating the Topology of Race, in Critical Race Theory: The Key Writings That Formed the Movement 441-49 (Kimberlé W. Crenshaw et al. eds., 1995) (arguing that Appiah's question is incorrectly focused on the content of the category of race rather than the social processes which brought about "race"). I believe that Orlando Patterson makes a similar error by arguing that references to ethnicity should replace the use of "race". See Orlando Patterson, The Race Trap, N.Y. Times, July 11, 1997, at A27.
16. For an example of a definition of race that endeavors to reveal the emptiness of the construct, see Kwame Anthony Appiah, In My Father's House: Africa in the Philosophy of Culture 28-46 (1992). Appiah contends that because there is no coherence to the idea of race, there really is nothing to be gained by using or invoking "race". Instead, he argues that the differences we talk about when we invoke race are really cultural. Id. at 45. Yet, even assuming that race is really a "metonym for culture," id. there is no evidence that recognizing cultural differences as cultural instead of racial prevents the phenomenon of racialization or racial formation. See Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, 55 (2d. ed. 1994) (describing "racial formation" as "the sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed" (emphasis omitted)). Thus, for example, even if we acknowledge that it makes little sense to think of Jews as a "race" since most differences denoted by that identity are really cultural and religious in nature, this recognition of the identity as cultural does not prevent Jews from being racialized in certain periods. In those moments, Jews as a "race" come to signify a complex stereotype: they are constructed as racially distinct, typified as both intellectually superior and morally deficient. See Sander L. Gilman, Smart Jews: The Construction of the Image of Jewish Superior Intelligence (1996). For a critique of Appiah's argument, see Jayne Chong-Soon Lee, Navigating the Topology of Race, in Critical Race Theory: The Key Writings That Formed the Movement 441-49 (Kimberlé W. Crenshaw et al. eds., 1995) (arguing that Appiah's question is incorrectly focused on the content of the category of race rather than the social processes which brought about "race"). I believe that Orlando Patterson makes a similar error by arguing that references to ethnicity should replace the use of "race". See Orlando Patterson, The Race Trap, N.Y. Times, July 11, 1997, at A27.
17. For an example of a definition of race that endeavors to reveal the emptiness of the construct, see Kwame Anthony Appiah, In My Father's House: Africa in the Philosophy of Culture 28-46 (1992). Appiah contends that because there is no coherence to the idea of race, there really is nothing to be gained by using or invoking "race". Instead, he argues that the differences we talk about when we invoke race are really cultural. Id. at 45. Yet, even assuming that race is really a "metonym for culture," id. there is no evidence that recognizing cultural differences as cultural instead of racial prevents the phenomenon of racialization or racial formation. See Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, 55 (2d. ed. 1994) (describing "racial formation" as "the sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed" (emphasis omitted)). Thus, for example, even if we acknowledge that it makes little sense to think of Jews as a "race" since most differences denoted by that identity are really cultural and religious in nature, this recognition of the identity as cultural does not prevent Jews from being racialized in certain periods. In those moments, Jews as a "race" come to signify a complex stereotype: they are constructed as racially distinct, typified as both intellectually superior and morally deficient. See Sander L. Gilman, Smart Jews: The Construction of the Image of Jewish Superior Intelligence (1996). For a critique of Appiah's argument, see Jayne Chong-Soon Lee, Navigating the Topology of Race, in Critical Race Theory: The Key Writings That Formed the Movement 441-49 (Kimberlé W. Crenshaw et al. eds., 1995) (arguing that Appiah's question is incorrectly focused on the content of the category of race rather than the social processes which brought about "race"). I believe that Orlando Patterson makes a similar error by arguing that references to ethnicity should replace the use of "race". See Orlando Patterson, The Race Trap, N.Y. Times, July 11, 1997, at A27.
18. For an example of a definition of race that endeavors to reveal the emptiness of the construct, see Kwame Anthony Appiah, In My Father's House: Africa in the Philosophy of Culture 28-46 (1992). Appiah contends that because there is no coherence to the idea of race, there really is nothing to be gained by using or invoking "race". Instead, he argues that the differences we talk about when we invoke race are really cultural. Id. at 45. Yet, even assuming that race is really a "metonym for culture," id. there is no evidence that recognizing cultural differences as cultural instead of racial prevents the phenomenon of racialization or racial formation. See Michael Omi & Howard Winant, Racial Formation in the United States: From the 1960s to the 1990s, 55 (2d. ed. 1994) (describing "racial formation" as "the sociohistorical process by which racial categories are created, inhabited, transformed, and destroyed" (emphasis omitted)). Thus, for example, even if we acknowledge that it makes little sense to think of Jews as a "race" since most differences denoted by that identity are really cultural and religious in nature, this recognition of the identity as cultural does not prevent Jews from being racialized in certain periods. In those moments, Jews as a "race" come to signify a complex stereotype: they are constructed as racially distinct, typified as both intellectually superior and morally deficient. See Sander L. Gilman, Smart Jews: The Construction of the Image of Jewish Superior Intelligence (1996). For a critique of Appiah's argument, see Jayne Chong-Soon Lee, Navigating the Topology of Race, in Critical Race Theory: The Key Writings That Formed the Movement 441-49 (Kimberlé W. Crenshaw et al. eds., 1995) (arguing that Appiah's question is incorrectly focused on the content of the category of race rather than the social processes which brought about "race"). I believe that Orlando Patterson makes a similar error by arguing that references to ethnicity should replace the use of "race". See Orlando Patterson, The Race Trap, N.Y. Times, July 11, 1997, at A27.
19. For example, the Supreme Court's 1937 decision in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), which repudiated Lochner v. New York, 198 U.S. 45 (1905), is sometimes described as such an instance. In Lochner the Supreme Court invalidated a labor law restricting the maximum hours of work for bakers because of its alleged interference with a fundamental "freedom of contract." Lochner, 198 U.S. at 64. This right, as Holmes' dissent somewhat caustically pointed out, was not to be found in the Constitution's guarantee of due process, but rather was derived from the majority's assumptions about the economic system and the free market. Id. at 75-76 (Holmes, J., dissenting). By the time of the Court's decision in West Coast Hotel, the failure of the economy and the emergence of the Great Depression had called into question the laissez-faire market ideology that was the underpinning of Lochner. Thus, in some accounts the Court's move away from substantive economic due process epitomized by Lochner is an instance of external political events driving the doctrinal shift. One influential text in constitutional law described the change as follows: By the mid-1930s the Court was prepared to abandon Lochner. This was due to changes in the composition of the Court, internal tensions in the doctrine, an attack on market ordering as a product of law and as sometimes inefficient and unjust, increasing judicial and academic criticism, and, perhaps most important, the economic realities of the Depression, which seemed to undermine Lochner's central premises. Geoffrey R. Stone et al., Constitutional Law, 831 (3d ed. 1996).
20. For example, the Supreme Court's 1937 decision in West Coast Hotel v. Parrish, 300 U.S. 379 (1937), which repudiated Lochner v. New York, 198 U.S. 45 (1905), is sometimes described as such an instance. In Lochner the Supreme Court invalidated a labor law restricting the maximum hours of work for bakers because of its alleged interference with a fundamental "freedom of contract." Lochner, 198 U.S. at 64. This right, as Holmes' dissent somewhat caustically pointed out, was not to be found in the Constitution's guarantee of due process, but rather was derived from the majority's assumptions about the economic system and the free market. Id. at 75-76 (Holmes, J., dissenting). By the time of the Court's decision in West Coast Hotel, the failure of the economy and the emergence of the Great Depression had called into question the laissez-faire market ideology that was the underpinning of Lochner. Thus, in some accounts the Court's move away from substantive economic due process epitomized by Lochner is an instance of external political events driving the doctrinal shift. One influential text in constitutional law described the change as follows: By the mid-1930s the Court was prepared to abandon Lochner. This was due to changes in the composition of the Court, internal tensions in the doctrine, an attack on market ordering as a product of law and as sometimes inefficient and unjust, increasing judicial and academic criticism, and, perhaps most important, the economic realities of the Depression, which seemed to undermine Lochner's central premises. Geoffrey R. Stone et al., Constitutional Law, 831 (3d ed. 1996).
21. Kimberlé W. Crenshaw et al., Introduction to Critical Race Theory: The Key Writings That Formed the Movement, at xxiv (1995) [hereinafter Crenshaw, Critical Race Theory].
22. Id. at xxv.
23. Black racial identity was the mark of slavery and the marker of subordination. See Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1709, 1716-21 (1993).
24. Crenshaw, Critical Race Theory, supra note 16, at xxv. As Crenshaw notes elsewhere, this has been one of the principal functions of constructs of "merit" and the "market." See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1380 (1988). One such example from anti-discrimination law is Washington v. Davis, 426 U.S. 229 (1976). There the Supreme Court rejected an equal protection challenge to the use of "neutral testing" by the Police Department on the grounds that racial disparities in the pass/fail rate were not sufficient evidence of racial discrimination. The Court was unwilling to adopt either heightened scrutiny or even the evidentiary presumption of Title VII claims: evidence of disparate impact gives rise to a prima facie case of discrimination rebuttable by evidence of business necessity. In part the Court said that to require the state to justify neutral practices that produce unequal results would be problematic because it would open up a whole range of statutes and rules to such scrutiny and perhaps invalidate them. See id. at 248. The racial inequality produced by the test was thus deemed inconclusive and insufficient evidence of an equal protection violation. In effect, both the test and the racially disparate results it produced were affirmed as legitimate.
25. Crenshaw, Critical Race Theory, supra note 16, at xxv.
26. Neil Gotanda, A Critique of "Our Constitution is Colorblind", in Crenshaw, Critical Race Theory, supra note 16, at 257-75.
27. His example of the paradigm case here would be Dred Scott v. Sanford, 60 U.S. 393 (1857), where according to the majority view, there is a natural hierarchy of the races. Gotanda, supra note 21, at 262.
28. Gotanda, supra note 21, at 257.
29. Here, Plessy v. Ferguson, 163 U.S. 537 (1896) is the case that comes to mind. Gotanda, supra note 21, at 263.
30. In Loving v. Virginia, the Court rejected Virginia's assertion that its anti-miscegenation law did not offend equal protection because Blacks and whites were equally constrained. Loving v. Virginia, 388 U.S. 1 (1967). The Court found that despite the formally equal treatment accorded those who transgressed the law, in fact the purpose of the law was to maintain the purity of the white race and uphold the system of white supremacy. Id. at 11-12. Loving can be read as a case which acknowledges the linkage between racial categories and subordination in contrast to Plessy-a case embracing formal race-in which the existence of that linkage is denied.
31. As Omi and Winant argue, the conception of race has historically been contested and given the role of the state in enforcing racial regimes, the state is a crucial site of this contest. See Omi & Winant, supra note 14, at 65.
32. Plessy, 163 U.S. at 559.
33. See Greg Lucas & Edward W. Lempinen, State GOP Pulls King Ad But Not Blitz: Party Still Will Spend Millions to Push Prop. 209, S.F. Chronicle, Oct. 25, 1996, at A21 (describing a plan to use Martin Luther King's "I Have a Dream Speech" as a way of reducing the meaning of race to skin color, thus making racial preferences fundamentally arbitrary). See also Ronald Walters, Affirmative Action and the Politics of Concept Appropriation, 38 How. L.J. 587, 600 (1995) (describing the capture and appropriation of discourse and norms of the civil rights movement by opponents of civil rights, so that "where racial discrimination was originally defined as the prohibition or exclusion of blacks and other disadvantaged groups from access to normal or equal participation in society, it has devolved to mean any racial distinction.").
34. See Greg Lucas & Edward W. Lempinen, State GOP Pulls King Ad But Not Blitz: Party Still Will Spend Millions to Push Prop. 209, S.F. Chronicle, Oct. 25, 1996, at A21 (describing a plan to use Martin Luther King's "I Have a Dream Speech" as a way of reducing the meaning of race to skin color, thus making racial preferences fundamentally arbitrary). See also Ronald Walters, Affirmative Action and the Politics of Concept Appropriation, 38 How. L.J. 587, 600 (1995) (describing the capture and appropriation of discourse and norms of the civil rights movement by opponents of civil rights, so that "where racial discrimination was originally defined as the prohibition or exclusion of blacks and other disadvantaged groups from access to normal or equal participation in society, it has devolved to mean any racial distinction.").
35. There is a strong interactive relationship between the political and legal rhetoric and visions. See John O. Calmore, Exploring Michael Omi's "Messy" Real World of Race: An Essay for "Naked People Longing to Swim Free", 15 Law & Ineq. 25, 53 (1997) (describing how neo-conservative and right-wing racial projects have led and influenced the Court, which in turn "is intentionally solidifying the projects' gains").
36. Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990).
37. 515 U.S. 200 (1995).
38. 488 U.S. 469 (1989).
39. Gotanda, supra note 21, at 261.
40. Id. at 263.
41. As proof the Court asked whether whites would feel oppressed if Blacks enacted rules of racial exclusion against whites. Plessy v. Ferguson, 163 U.S. 537, 551 (1896).
42. Id. at 562 (Harlan, J., dissenting).
43. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 276-79 (1978).
44. Chief Justice Rehnquist, Justices Stevens, Burger and Stewart reasoned that the special admissions plan constituted a violation of Title VI of the Civil Rights Act, and did not reach the constitutional question directly. Id. at 408-21 (1978) (Stevens, J., concurring in part and dissenting in part). Justices Marshall, Brennan, White and Blackmun held that the evaluation of the affirmative action plan should proceed under a kind of intermediate Equal Protection review and that under that standard the school had established the necessary justification of the program. Id. at 355-79.
45. Id. at 290-305.
46. Id. at 315-20.
47. This is John Hart Ely's argument regarding why affirmative action is not per se subject to strict scrutiny. John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. Chi. L. Rev. 723 (1974).
48. Bakke, 438 U.S. at 290-97 (citations and footnotes omitted).
49. The blood quantum rules that included the one drop rule and its variations were not only social norms at one point but actual legal rules. See Harris, supra note 18, at 1738.
50. Gotanda, supra note 21, at 259. As Plessy's lawyer asked, why is the rule not the reverse? In his brief he argued, It may be said that all those should be classed as colored in whom appears a visible admixture of colored blood. By what law? With what justice? Why not count everyone as white in whom is visible any trace of white blood? There is but one reason to wit, the domination of the white race. Brief of Homer Plessy, cited in Harris, supra note 18, at 1748.
51. Omi & Winant, supra note 14, at 54-58.
52. See Andrew Hacker, Two Nations 12 (1992) (arguing that the question was not so much "who is white" but "who may be considered white" as various ethnic immigrants were gradually accepted into a white identity shaped around Anglo-American norms).
53. Bakke, 438 U.S. at 292, 295.
54. Id. at 292.
55. Id. (emphasis added).
56. As noted by one scholar: Instead of race, ethnicity is the term used by academic scholars today to codify the conventional belief in the virtue of assimilation, the gradual homogenizing of diverse groups predicated on value consensus ("the American Creed") and the norms of social integration. In this sense "Americanization" virtually means cultural and psychological suicide for peoples of color. . . E. San Juan, Jr., Racial Formations/Critical Transformations: Articulations of Power in Ethnic and Racial Studies in the United States 6 (1992). He further notes: Race not ethnicity articulates with class and gender to generate the effects of power in all its multiple protean forms. Ethnicity theory eludes power relations, conjuring an illusory state of parity among bargaining agents. It serves chiefly to underwrite a functionalist mode of sanctioning a given social order. It tends to legitimize a pluralist but hierarchical status quo. Id. at 5.
57. As Alan Freeman notes, the Supreme Court's analysis has fostered "the startling claim of 'ethnic fungibility'-the notion that each of us bears an 'ethnicity' with an equivalent legal significance and with an identical claim to protection." Alan Freeman, Antidiscrimination Law: The View From 1989, 64 Tul. L. Rev. 1407, 1412 (1990).
58. Regina Austin is the author of this phrase. Regina Austin, Sapphire Bound!, 1989 Wis. L. Rev. 539, 546.
59. Diana Fuss, Essentially Speaking: Feminism, Nature and Difference 3 (1989) (emphasis omitted).
60. Thus, "where classical liberalism argued that race was irrelevant to public policy, there critics argued that race simply didn't exist. The position is one we have come to call "vulgar anti-essentialism." By this we mean to capture the claim made by some critical theorists that since racial categories are not "real" or "natural" but are instead socially constructed, it is theoretically and politically absurd to center race as a category of analysis or as a basis for political action." Crenshaw, Critical Race Theory, supra note 16, at xxiv.
61. See Omi and Winant, supra note 14, at 14-16 (noting that the ethnicity paradigm within sociology emerged in the 1920s and 1930s to challenge prevailing views of race as a natural, biological category). They further note, however, the limits of ethnicity theory and the immigrant analogy in addressing the dynamics of race, since the immigration studies that undergirded ethnicity theory had largely focused on European immigrants whose experiences were not reflective of the lived experience of race. See id. at 16-20.
62. See Ruth Frankenburg, White Women, Race Matters: The Social Construction of Whiteness 52 (1993) (noting the "color-evasiveness" or "power-evasiveness" tendency of whites when discussing race to avoid questions of power and hierarchy).
63. See, e.g., United States v. Armstrong, 517 U.S. 456 (1996).
64. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring in part and concurring in the judgment). In contrast to Scalia's Olympic perspective, the view from the ground is poignantly quite different. LeAlan Jones, a young African-American man, along with his friend, Lloyd Newman, created two radio documentaries for National Public Radio about their lives in an impoverished, racially isolated Chicago neighborhood. They were in their mid-teens at the time the book based on the documentaries was published: We live in two different Americas. In the ghetto, our laws are totally different, our language is totally different, and our lives are totally different. I've never felt American. I've only felt African-American. An American is supposed to have life, liberty, prosperity and happiness. But an African-American is due pain, poverty, stress and anxiety. As an African-American I have experienced beautiful things, but the majority of the things I have experienced are not beautiful. And I don't even have it as bad as most-there are millions of young men and women living the struggle even harder than me. As children, they have to make day-to-day decisions about whether to go to school or whether to go on the corner and sell drugs. As children, they know that there may not be a tomorrow. Why are African-American children faced with this dilemma at such an early age? Why must they look down the road to a future that they might never see? What have my people done to this country to deserve this? And yet I am supposed to feel American. I am supposed to be patriotic. I am supposed to love this system that has been detrimental to the lives of my people. It's hard for me to say how I'm an American when I live in a second America - an America that doesn't wave the red, white and blue flag with fifty stars for fifty states. I live in a community that waves a white flag because we have almost given up. I live in a community where on the walls are the names of fallen comrades of war. I live in a second America. I live here not because I chose to, but because I have to. I hate to sound militant, but this is the way I feel. . . . I know you don't want to hear about the pain and suffering that goes on in "that" part of the city. But little do you know that "that" part of the city is your part of the city too. This is our neighborhood, this is our city and this is our America. . . ." LeAlan Jones, Lloyd Newman with David Isay, Our America: Life and Death on the South Side of Chicago 199-200 (1997).
65. 528 U.S. 495 (2000).
66. The relevant statute defined "Hawaiian" and "Native Hawaiian"-the groups eligible to vote-as follows: "Hawaiian" means any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii. "Native Hawaiian" means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii. Haw. Rev. Stat. § 10-2 (1993).
67. Rice, 528 U.S. at 517.
68. As the majority opinion in Adarand articulated it, prior case law has established three general propositions concerning governmental racial classifications: First, skepticism: "Any preference based on racial or ethnic criteria must necessarily receive a most searching examination" . . . Second, consistency: "[T]he standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification" . . . And third, congruence: "Equal Protection analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment" . . . Adarand, 515 U.S. at 223-24 (citations omitted).
69. As the dissent points out: "The Court's holding today rests largely on the repetition of glittering generalities that have little, if any, application to the compelling history of the State of Hawaii." Rice, 528 U.S. at 527-28 (Stevens, J., dissenting).
70. As Yamamoto notes, "[T]hat OHA and its voting limitation were created by the overwhelming vote of Hawai'i's multiracial populace partly to rectify the legacies of U.S. colonialism by affording Hawai'i's indigenous peoples a measure of self-determination was completely dismissed by the Court's majority opinion." Sharon K. Hom & Eric K. Yamamoto, Collective Memory, History, and Social Justice, 47 UCLA L. Rev. 1747, 1773 (2000).
71. Id. at 1767.
72. Id.
73. Id. at 1766-67.
74. Joint Resolution to Acknowledge the 100th Anniversary of the January 17, 1893 Overthrow of the Kingdom of Hawaii, and to Offer an Apology to Native Hawaiians on Behalf of the United States for the Overthrow of the Kingdom of Hawaii, Pub. L. No. 103-150, 107 Stat. 1510 (1993).
75. As one example of how the majority conveys facts without context, it reports that "In 1978 Hawaii amended its Constitution to establish the Office of Hawaiian Affairs . . ." Rice, 528 U.S. at 508. However, the majority never once mentions that these amendments that established the Hawaiian only voting procedures were approved by a vote of the entire electorate. See Hom & Yamamoto, supra note 65, at 1772-73.
76. OHA has been charged with "serving as the principal public agency . . . responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians . . . serving as a receptacle for reparations." Haw. Rev. Stat. § 10-3 (1993).
77. This was the basis for the Ninth Circuit's rejection of Rice's claim. Rice v. Cayetano, 146 F.3d 1075, 1082 (9th Cir. 1998).
78. 417 U.S. 535 (1974).
79. The preference in Mancari favored individuals who were "one-fourth or more degree Indian blood and . . . member[s] of a Federally-recognized [Indian] tribe." Morton v. Mancari, 417 U.S. 535, 553 n.24 (1974). Like the definition of native Hawaiians at issue in Rice, the class was defined in terms that referred to lineal ancestry.
80. The majority reasoned that there was a distinction between elections excluding non-Indians and elections excluding non-Hawaiians: If a non-Indian lacks a right to vote in tribal elections, it is for the reason that such elections are the internal affair of a quasi-sovereign. The OHA elections, by contrast, are the affair of the State of Hawaii. . . . [T]he elections for OHA trustee are elections of the State, not of a separate quasi-sovereign, and they are elections to which the Fifteenth Amendment applies. Rice, 528 U.S. at 520-22. However, though the court attempts to draw the distinction based on whether the entity created is an agency of the state or some more semi-autonomous body, in reality the difference the majority seeks to highlight is the nature of the group-that is whether the group is a political entity-a quasi-sovereign-as distinct from a racial group. The fact that the state created OHA rather than Congress is not really a salient distinction since as the dissent points out, the federal power to pass laws pertaining to its trust relationship with native tribes can be delegated to the states. Id. at 536 (Stevens, J., dissenting). Were the Court to consider native Hawaiians to have the status of a quasi-sovereign entity, then the exclusion of non-Hawaiians from the OHA electorate would not be a racial restriction but "an internal affair of a quasi-sovereign." Id. at 520. This is why the dissent concludes: "[I]it is a painful irony indeed to conclude that native Hawaiians are not entitled to special benefits designed to restore a measure of native self-governance because they currently lack any vestigal native government-a possibility of which history and the actions of this Nation have deprived them." Id. at 535.
81. See id. at 533-34 (Stevens, J., dissenting) (citing federal statutes that include native Hawaiians as part of the aboriginal or indigenous peoples).
82. Id. at 514; noting that: the State argues, the restriction in its operation excludes a person whose traceable ancestors were exclusively Polynesian if none of those ancestors resided in Hawaii in 1778; and, on the other hand, the vote would be granted to a person who could trace, say, one sixty-forth of his or her ancestry to a Hawaiian inhabitant on the pivotal date.
83. Id. at 514-15 (citation omitted).
84. Id. at 515.
85. The majority draws on the legislative history of the statute in which the definitions of Hawaiian and native Hawaiian originally made reference to "any descendant of the races inhabiting the Hawaiian Islands, previous to 1778." The substitution of the word "peoples" for "races" was described as merely "technical." Id. at 515-16. Thus, the Court concludes that the definitions are essentially racial.
86. The proposed statute defined "Hawaiian" as "any descendant of the races inhabiting the Hawaiian Islands previous to 1778." The definition was later changed by substituting the word "peoples" for "races." Id. at 515-16. The majority reads this history as an admission that the statutory definitions are racial and an admission by the state of a racial purpose. Id. at 516-17. But if the group defined is constituted by members of various "races" it is difficult to see how the definition itself can be characterized as racially exclusive. The majority here seems to treat the mere mention of race as an indication that a forbidden classification has been made, in part because it sees the inquiry into ancestral lines as inherently offensive. Id. at 517. The assertion that ancestry functions as a proxy for race here then seems to rest on the contention that ancestral distinctions work the same way and cause the same harms as race. But of course, the definition of membership in a tribe has also been expressed in terms of lineal ancestry and we do not understand that definition to be racial simply because it rests on ancestry. We understand it to be descriptive of an indigenous people, which is what the statute here was constructed to do.
87. As the dissent argues: The ability to vote is a function of the lineal descent of a modern-day resident of Hawaii, not the blood-based characteristics of that resident, or of the blood-based proximity of that resident to the 'peoples' from whom that descendant arises. The distinction between ancestry and race is more than simply one of plain language. Id. at 539 (Stevens, J., dissenting).
88. This is not to deny that common history and culture cannot also be part of the self-definition of racially subordinated groups. Indeed, the assertion and expression of that commonality is often of greater significance than the idea of "blood." Moreover, it is well-known that the lines between race, nation and ethnicity are notoriously difficult to draw. The point here is that the claims asserted here by native Hawaiians were grounded in the notion of the historical ties to land, culture and history, not racial designations. Race is obviously implicated in the discussion because of the degree to which the conquest of Hawaii was justified as a legitimate effort to civilize a subordinate race. See Hom & Yamamoto, supra note 65, at 1769 n.105.
89. Justice Stevens' dissent in Adarand predicted that the principle of consistency would lead to precisely these illogical results: [C]onsider our cases addressing the Federal Government's discrimination against Japanese-Americans during World War II. . . . The discrimination at issue in those cases was invidious because the Government imposed special burdens-a curfew and exclusion from certain areas on the West Coast-on the members of a minority class defined by racial and ethnic characteristics. Members of the same racially defined class exhibited exceptional heroism in the service of our country during that War. Now suppose Congress decided to reward that service with a federal program that gave all Japanese-American veterans an extraordinary preference in Government employment. If Congress had done so, the same racial characteristics that motivated the discriminatory burdens in Hirabayashi and Korematsu would have defined the preferred class of veterans. Nevertheless, "consistency" surely would not require us to describe the incidental burden on everyone else in the country as "odious" or "invidious" as those terms were used in those cases. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 244 (Stevens, J., dissenting) (citations omitted).
90. 238 U.S. 347 (1915) (holding that exemptions from literacy requirement based on ancestral ties to those entitled to vote prior to the end of slavery was a violation of the Fifteenth Amendment).
91. 345 U.S. 461 (1953) (invalidating Texas "Jaybird" primary system which excluded Blacks).
92. 451 U.S. 100 (1981).
93. 403 U.S. 217 (1971).
94. In Memphis v. Greene, the barrier was erected at the point of separation of black and white neighborhoods at the request of white property owners who had expressed concerns about the influx of "undesirable traffic." 451 U.S. at 115 The majority found there was no violation of equal protection because it found that the rationale for the closing-protecting the neighborhood from unwanted traffic was appropriate. While a benefit had been conferred on white property owners, the only harm suffered by blacks was a minor inconvenience. Id. at 119. In Palmer v. Thompson, the city of Jackson, Mississippi was under court order to desegregate all of its public parks and facilities, and complied with the order excepting for the swimming pools. The city council ordered the pools closed. The majority decision rejected the argument that the closure amounted to a violation of equal protection, because "this is not a case where the whites are permitted to use public facilities while blacks are denied access." 403 U.S. at 220. The court rendered this finding despite strong evidence of discriminatory motive; there the mayor had made statements indicating his hostility to integration. Id. at 250 (White, J., dissenting) (quoting the newspaper accounts of the mayor's comments that "neither agitators nor President Kennedy will change the determination of Jackson to retain segregation.").
95. In Memphis v. Greene, the barrier was erected at the point of separation of black and white neighborhoods at the request of white property owners who had expressed concerns about the influx of "undesirable traffic." 451 U.S. at 115 The majority found there was no violation of equal protection because it found that the rationale for the closing-protecting the neighborhood from unwanted traffic was appropriate. While a benefit had been conferred on white property owners, the only harm suffered by blacks was a minor inconvenience. Id. at 119. In Palmer v. Thompson, the city of Jackson, Mississippi was under court order to desegregate all of its public parks and facilities, and complied with the order excepting for the swimming pools. The city council ordered the pools closed. The majority decision rejected the argument that the closure amounted to a violation of equal protection, because "this is not a case where the whites are permitted to use public facilities while blacks are denied access." 403 U.S. at 220. The court rendered this finding despite strong evidence of discriminatory motive; there the mayor had made statements indicating his hostility to integration. Id. at 250 (White, J., dissenting) (quoting the newspaper accounts of the mayor's comments that "neither agitators nor President Kennedy will change the determination of Jackson to retain segregation.").
96. The majority contends that the problem with the Hawaiian-only voting scheme for OHA is that it conveys the symbolic and demeaning message "that citizens of a particular race are somehow more qualified than others to vote on certain matters." Rice v. Cayetano, 528 U.S. 495, 523 (2000). Of course, the underlying premise is something quite different- not the idea of inequality but of the need to rectify inequality and oppression.
97. 121 S. Ct. 525 (2000).