is remarkable that in the United States, with our legacy of legal slavery,
the problem of racial discrimination that most troubles judges, policymakers,
and political elites is the affirmative use of race by the state to
promote equality for citizens of color. The Supreme Court of the
United States has prohibited the City of Louisville, famous for its
separate-but-unequal schools, from considering race in its efforts to
prevent the voluntary segregation of its public schools. In Chief Justice Roberts’s world, to hold otherwise would violate
the principal meaning of Brown v. Board of Education.
Opponents of affirmative action have succeeded in eliminating the use
of race by state officials in California, Washington, Michigan, and
of affirmative action, once beneficiaries of nondiscrimination doctrine,
are now on the defensive. They are losing in the courts and in
the political process. The Court seems determined to eliminate
the use of race as a criterion for decisionmaking by state actors, notwithstanding
the devastating impact that such action might have on citizens of color.
With respect to the political process, judging by the relative success
of state anti–affirmative action initiatives, that arena does not
appear any more promising. Proponents of racial equality—those who
care about reducing the often gaping and shocking disparities between
blacks and Latinos on one side and whites on the other—are in need
of fresh thinking and a new theoretical framework.
into the breach, Professor Kimberly West-Faulcon offers just that in
her article The River Runs Dry:
When Title VI Trumps State Anti–Affirmative Action Laws.
The article takes racial inequality seriously and sees its amelioration
as possible within the context of extant legal and jurisprudential frameworks.
She focuses her analysis on public universities in states that have
eliminated the use of race through initiatives and referenda.
She shows empirically that admissions policies at public universities
in California and Washington have had a statistically significant and
disproportionately negative impact on the admissions prospects of black
and Latino applicants. For example, in 2004, the University of
California, Berkeley accepted 28.5% of white applicants for undergraduate
admission; by contrast, only 15.4% of black applicants were granted
West-Faulcon argues that large disparities in admissions between black
and white applicants (and between Latino and white applicants) could
violate Title VI of the Civil Rights Act of 1964, which, inter alia,
prohibits entities receiving public funds from adopting admissions policies
that have the effect of discriminating on the basis of race. If Title VI were understood properly and given effect, she argues, it
would prohibit the racial disparities in admissions that we have seen
as a result of the elimination of affirmative action in many states.
Universities would be forced to justify their reliance on standardized
tests—the proximate cause of the racial disparities in admissions—or
would be required to take race into account in order to comply with
federal law, notwithstanding the state prohibition.
this brief Response, I explore a reasonable assumption that underlies
Professor West-Faulcon’s article, namely, that the failure to take
seriously the problems of inequality that afflict communities of color—e.g.,
racial inequality in education—is a consequence of the absence of
(or the failure to recognize) legal tools sufficient to the task.
The assumption implies that we need more legal tools; if more legal
tools were available, then we could begin to stem the tide of racial
inequality. As Professor West-Faulcon shows in her article, however,
legal tools are available. What, then, accounts for the
failure of courts, specifically the Supreme Court, to take seriously
the problem of racial inequality? I suggest that courts do not
care enough about racial inequality and the dignity of people of color.