Grutter v. Bollinger: This Generation’s Brown v. Board of Education?

At first blush, Grutter appears to be a deviation from the body of the Court\u27s recent affirmative action jurisprudence: it says yes where the other cases said no. But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, race as a factor, diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court for many years, reorientating the affirmative action problem away from explicitly addressing the harms experienced by minority group members toward a more prospective orientation which asks: what\u27s best for the country moving forward? Grutter thus answered the question of how it might be possible to sustain an affirmative action plan once it was clear that strict scrutiny applied. The answer is by reliance on the same underlying rationale that was recognized in Brown: the importance of racial integration to American society. Thus, Grutter might be understood as this generation\u27s Brown v. Board of Education because it managed to reinvigorate the judicial commitment to affirmative action (which is after all the preeminent civil rights policy of our time) by a clear commitment to the same abstract principle that commanded the Court in Brown: racial integration. At the same time, the Grutter Court used essentially the same analytical process--commitment to high ideal, refrain from detail-that was favored in Brown. Both cases, then, are examples of equal protection jurisprudence on the level of high theory. The animating rationale in each is an abiding belief in the importance of race mixing or diversity for society\u27s sake. They are both prospective, rather than retrospective decisions. But, of course, if this is true, the question that remains to be answered, particularly given the Grutter Court\u27s twenty-five year phase out reference, is whether the same pattern that obtained after Brown will be repeated: invocation of high and deeply important principle, judicial inattention, articulation of a more detailed enforcement framework, and then ultimately retreat

Intergroup Rivalry, Anti-Competetive Conduct and Affirmative Action

Significant research in social science describes racial inequality as grounded in notions of group identity and group conflict. Sociologists and social psychologists who study discrimination and prejudice have moved away from theories that explain prejudice solely as a problem of individual perception, and toward theories that view individual cognitive processes as related to group membership. While present social science yields no consensus view, there is a striking emphasis in the current literature on group identity theories as powerful determinants of behavior. These theories, which stress the importance of prejudice as a group-based phenomenon and focus on social-structural theories of group competition, are particularly resonant for our discussion of affirmative action and competitive process distortion. Thus, social science scholarship has recognized that discriminatory behaviors are not just the result of personal, individual cognitive-process distortions, but are a problem of collective action. This article explores this notion of collective action by analyzing the process by which blacks and whites compete for resources and benefits and highlights three areas in which this anti-competitive conduct can be seen: employment, housing and education. Through strict scrutiny analysis, recent jurisprudence takes an unduly limited approach to interpreting the demands of equal protection. In these three disparate areas, lower federal courts have engaged in a similar strict scrutiny analysis in reviewing affirmative action programs. In each area, the respective court failed to engage in a meaningful compelling governmental interest analysis, allowing it to ignore the competitive dynamics underlying each case. These courts then jumped to a truncated narrow tailoring inquiry, which allowed them to strike down the affirmative action plans presented. This approach short-circuits meaningful judicial review of the affirmative action plans crafted by governmental actors. As a result, the courts leave intact structures that benefit whites at the expense of blacks. By viewing cases in these areas through the lens of competition, we see that different outcomes are both possible and advisable. The Tenth Circuit\u27s most recent decision in the long-running Adarand litigation highlights the approach this article advocates because the court began to shift toward viewing discrimination as a form of anti-competitive conduct. This approach allowed the court to engage in a meaningful compelling governmental interest inquiry and allowed it to see the ways in which discrimination locked-in benefits for one group over time. In beginning to use the language of competition, the court was on the right track toward a fuller and richer conception of inter-group conflict and anti-competitive conduct. By following Adarand\u27s lead and analyzing affirmative action disputes through the lens of competition, courts and policy-makers will develop a more complete understanding of the dynamics of discrimination and will develop more thorough tools with which to evaluate cases and create affirmative action policy

Radical Integration

Radical Integration explores the two primary theoretical frameworks for achieving black liberation: the integration approach (which can be understood as assimilationist) and the identity-based, community-centered approach (which can be understood as isolationist). I argue that neither framework, by itself, is enough to ensure the achievement of true black liberation. I extract key elements of each approach and harmonize them to envision an entirely new framework. This framework, radical integration, refocuses on the impact of racial segregation on the black community and simultaneously recognizes the need to address concerns about black identity and black authenticity in an integrated environment

Is Integration a Discriminatory Purpose?

Is integration a form of discrimination? Remarkably, recent Supreme Court doctrine suggests that the answer to this question may well be yes. In Ricci v. DeStefano, the Court characterizes - for the very first time - government action taken to avoid disparate-impact liability and to integrate the workplace as race-based, and then invalidates that action under a heightened level of judicial review. Consequently, Ricci suggests that the Court is open to the equivalence doctrine, which posits that laws intended to racially integrate are morally and constitutionally equivalent to laws intended to racially separate. Under the equivalence doctrine, integration is simply another form of discrimination. The Court has not yet fully embraced this view. Ricci contains a significant limiting principle: In order to be actionable, the government’s action must create racial harm, i.e., single out individuals on the basis of their race for some type of adverse treatment. Thus, the lesson of Ricci is not that governmental action with an integrative motive is always prohibited (at least for now); instead it is that racial harm really matters. The challenge for the government seeking to increase integration is to design facially race-neutral programs that open up access to opportunity and increase integration without imposing racial harm