Retelling the story of affirmative action: Reflections on a decade of federal jurisprudence in the public workplace

California Law Review

Volumn 89, Issue 1, 2001, Pages 61-62

  Day, John Cocchi ^a  

^a NONE

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EID: 0042404927     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: 10.2307/3481173     Document Type: Article

References (11)

1. For a thorough discussion of what I mean by the "prevailing story" of affirmative action, see Part I. For now, however, two points deserve mention. First, I will be using the terms "prevailing story" and "dominant narrative" throughout this piece to reference the common notion that race-conscious decision making is dying at the hands of the federal courts. Second, while this story is in fact pervasive, by no means do I think that it is the only story being told about affirmative action. I recognize that there is a great deal of legal scholarship that carefully avoids over-claiming affirmative action's judicial "demise." See infra note 11. I also understand that there are altogether different types of affirmative action narratives being told. See, e.g., Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CALIF. L. REV. 953, 959-68 (1996) (discussing the "stock narratives" that run through the affirmative action debate, such as merit and fairness).
2. Let me acknowledge from the outset that the phrase "affirmative action" is a widely used and misunderstood term. For the purposes of this Comment, I use the phrase in much the same way that Professor Greenawalt does: '"Affirmative action' is a phrase that refers to attempts to bring members of underrepresented groups, usually groups that have suffered discrimination, into a higher degree of participation in some beneficial program. Some affirmative action efforts include preferential treatment; others do not." KENT GREENAWALT, DISCRIMINATION AND REVERSE DISCRIMINATION 17 (1983). By embracing this broad definition, I purposely mean to include not only outright preferential policies, but also more "neutral" policies such as minority recruiting and education, modifications in hiring, promotion, and layoff procedures, and test-validation to minimize disparate impact. Randall Kennedy has usefully distinguished between "hard" and "soft" forms of affirmative action: "'[S]ofV forms [of affirmative action]. . . might include special recruitment efforts," while "'hard' forms . . . might include reserving a specific number of openings exclusively for members of the preferred group." Quoted in Andorra Bruno, Affirmative Action in Employment, in S.N. COLAMERY, AFFIRMATIVE ACTION: CATALYST OR ALBATROSS? 59 (1998).
3. Let me acknowledge from the outset that the phrase "affirmative action" is a widely used and misunderstood term. For the purposes of this Comment, I use the phrase in much the same way that Professor Greenawalt does: '"Affirmative action' is a phrase that refers to attempts to bring members of underrepresented groups, usually groups that have suffered discrimination, into a higher degree of participation in some beneficial program. Some affirmative action efforts include preferential treatment; others do not." KENT GREENAWALT, DISCRIMINATION AND REVERSE DISCRIMINATION 17 (1983). By embracing this broad definition, I purposely mean to include not only outright preferential policies, but also more "neutral" policies such as minority recruiting and education, modifications in hiring, promotion, and layoff procedures, and test-validation to minimize disparate impact. Randall Kennedy has usefully distinguished between "hard" and "soft" forms of affirmative action: "'[S]ofV forms [of affirmative action]. . . might include special recruitment efforts," while "'hard' forms . . . might include reserving a specific number of openings exclusively for members of the preferred group." Quoted in Andorra Bruno, Affirmative Action in Employment, in S.N. COLAMERY, AFFIRMATIVE ACTION: CATALYST OR ALBATROSS? 59 (1998).
4. See City of Richmond v. J.A. Croson, 488 U.S. 469, 493-94 (1989); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
5. See City of Richmond v. J.A. Croson, 488 U.S. 469, 493-94 (1989); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).
6. Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972).
7. E.g., Edward I. Koch, Editorial, Equal Opportunity - Without Minority Set-Asides, N.Y. TIMES, Feb. 20, 1989, at A19; Charles Krauthammer, Editorial, Exit Affirmative Action, WASH. POST, Feb. 3, 1989, at A25.
8. E.g., Edward I. Koch, Editorial, Equal Opportunity - Without Minority Set-Asides, N.Y. TIMES, Feb. 20, 1989, at A19; Charles Krauthammer, Editorial, Exit Affirmative Action, WASH. POST, Feb. 3, 1989, at A25.
9. Generally speaking, the "colorblind ideal" refers to a notion of equal protection that rejects any and all considerations of race, invidious or benign. For historical discussions of this "ideal" in the American legal context, see ANDREW KULL, THE COLOR-BLIND CONSTITUTION (1992); John C. Day, Rhetorical Epochs in the Jurisprudence of Race (1998) (unpublished Ph.D. dissertation, University of Southern California) (on file with author). For a discussion of how this "ideal" has been turned toward markedly conservative ends, see Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988).
10. Generally speaking, the "colorblind ideal" refers to a notion of equal protection that rejects any and all considerations of race, invidious or benign. For historical discussions of this "ideal" in the American legal context, see ANDREW KULL, THE COLOR-BLIND CONSTITUTION (1992); John C. Day, Rhetorical Epochs in the Jurisprudence of Race (1998) (unpublished Ph.D. dissertation, University of Southern California) (on file with author). For a discussion of how this "ideal" has been turned toward markedly conservative ends, see Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988).
11. Generally speaking, the "colorblind ideal" refers to a notion of equal protection that rejects any and all considerations of race, invidious or benign. For historical discussions of this "ideal" in the American legal context, see ANDREW KULL, THE COLOR-BLIND CONSTITUTION (1992); John C. Day, Rhetorical Epochs in the Jurisprudence of Race (1998) (unpublished Ph.D. dissertation, University of Southern California) (on file with author). For a discussion of how this "ideal" has been turned toward markedly conservative ends, see Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988).