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  • Introduction: Critical Race Praxis and Legal Scholarship

    The publication of this symposium issue is an occasion for three distinct and yet related celebrations. First, we honor the Western Law Teachers of Color, whose sixth annual meeting on the sublime Oregon Coast in 1998 provided the occasion for organizing the papers published here. Dean Strickland's preface, as well as Professors Linda Greene's and Jim Jones's essays examine the historical significance of this occasion in greater detail. Second, we engage in a festschrift of a particular member of this group-Professor Eric K. Yamamoto -whose publication of a book this year is a significant capstone to fifteen years of scholarship on racial justice. The articles in this symposium issue address one of Yamamoto's many path-breaking concepts: critical race praxis. Finally, the various pieces published here form a testament to the growing maturity of legal scholarship on race and law, as well as-sadly-the still highly contested legitimacy of this kind of scholarship within the mainstream legal academy as an editorial board of one of the Western Law Teachers participating law schools' law reviews decided against publication despite an earlier commitment. The very fact that there was a politicized dispute elsewhere over the articles published here demonstrates the on-going nature of racial struggle inside the walls of law schools, as well as the strategic importance of law students committed to the principle of racial justice. Thus our obligatory first footnote, which thanks those on the editorial board of the Michigan Journal of Race & Law, does not begin to convey the complexity of the interracial dynamics-both alliances and fractures-that undergird this particular legal scholarship project.

  • Beyond the Rhetoric of “Dirty Laundry”: Examining the Value of Internal Criticism Within Progressive Social Movements and Oppressed Communities

    Part I of this Article discusses examples of resistance to internal criticism within progressive social movements in order to demonstrate the extent to which such opposition operates as a barrier to constructive dissent. Part II argues that resistance to internal criticism may often result from the embrace of heterosexism, patriarchy, and racism within oppressed communities and among progressive intellectuals, and that any remaining explanations for such resistance are outweighed by the value of internal criticism to progressive theory and politics. Part III offers suggestions-to both internal critics and to the objects of their critiques-for minimizing the potentially negative effects of internal criticism and for advancing a more inclusive conceptualization of justice.

  • Introduction

    The last Supreme Court decision addressing the use of race in admissions to institutions of higher education, Bakke v. Regents of the University of California, affirmed that the role of diversity in colleges and universities is both essential and compelling. Since Bakke, opponents and proponents have wrestled with ideology and theory, but have never had the benefit of a comprehensive theoretical framework that has been tested by reliable empirical data. The University of Michigan has drawn on several of the nation's leading, and most respected, researchers and scholars, to develop such a framework and verify its legitimacy with empirical proof. The evidence submitted by these leaders in the fields of history, sociology, education, economics, psychology, and law, confirms Bakke's holding and establishes the continuing imperative for diversity-including racial and ethnic diversity-in higher education.

  • Expert Report of Albert M. Camarillo

    At the request of attorneys with Wilmer, Cutler & Pickering, the author has prepared this report which outlines the historical patterns and legacies of racial isolation and separation of Hispanics in American society. The research is based on archival collections, syntheses of secondary literature, and other primary sources such as U.S. government reports including Bureau of the Census population reports. Based on the author’s knowledge and research, this report outlines the historical developments that resulted in patterns of racial exclusion and isolation of Hispanics in the states and cities where they have settled since 1900. In particular, this report will discuss how residential, educational and occupational isolation of Hispanic Americans developed in the century after the first group of Hispanics-Mexican Americans-were incorporated into the United States in 1848.

  • Expert Report of William G. Bowen

    Higher education plays a unique role in our society. The obligation of a university is to the society at large over the long run, and, even more generally, to the pursuit of learning. Although this may seem amorphous, there is no escaping a university's obligation to try to serve the long-term interests of society defined in the broadest and least parochial terms, and to do so through two principal activities: advancing knowledge and educating students who will in turn serve others, within this nation and beyond it, both through their specific vocations and as citizens. Universities therefore are responsible for imparting civic and democratic values that are essential to the functioning of our nation.

  • Expert Report of Kent D. Syverud

    Expert report from an educator with experience teaching many students in many settings; particular experience teaching the same subject matter to classes that are racially homogenous and racially heterogeneous, and to classes where non-white students make up a tiny fraction of the enrolled students and where their numbers are more significant.

  • “Reverse Discrimination” and Higher Education Faculty

    In this Article, the author critiques the use of "reverse discrimination" claims by White plaintiffs to challenge the hiring of Blacks in institutions of higher education. The author argues that "reverse discrimination" is a myth since no such claim is possible when one White candidate is selected over another; assumptions of inferiority are implicit where such a claim is made when a Black candiate is selected over a White candidate. In other words, allowing such a claim, even if ultimately unsuccessful, implies a presumption of superiority on the part of the White candidate. For this reason, the author argues that it is improper to assume that "reverse discrimination" occurs any time a Black candidate is chosen over a White candidate. If both are equally qualifed, no such claim exists. The term "reverse discrimination" is not neutral in tone and therefore should not be treated as f it is neutral in application. The author concludes that institutions of higher education must not allow fears of unfounded "reverse discrimination" claims to prevent them from hiring, promoting, and granting tenure to Black faculty.

  • Ua Mau Ke Ea O Ka Aina I Ka Pono:Voting Rights and the Native Hawaiian Sovereignty Plebiscite

    Using the Native Hawaiian Sovereignty Plebiscite to investigate the complex interplay between race, nationalism, and the special purpose district exception, this Note chronicles the development of relevant legal doctrines and the history of the Native Hawaiians' quest for self-government in an attempt to untangle those issues. In doing so, this Note concludes that the Native Hawaiian Sovereignty Plebiscite was an unconstitutional method of securing sovereign rights for Native Hawaiians, but that a Native Hawaiian claim to at least some form of self-government is justified. As a result, this Note searches for a method that will guarantee self-government as well as constitutionality and the recognition of all interests involved. It proceeds to analyze various voting systems, administrative mechanisms, and constitutional doctrines, and concludes by using this analysis to design a process that balances democratic philosophies, public interests, and the interests of Native Hawaiians who want sovereignty.

  • Affirmative Action: Where is it Coming from and Where is it Going?

    A review of We Wont Go Back: Making the Case for Affirmative Action by Charles R. Lawrence III & Mari J. Matsuda

  • Law, Literature, and Contract: An Essay in Realism

    In this Essay, the Author examines contract doctrine's weaknesses as applied to issues of race and gender. By contrasting the doctrinal silence concerning these issues with facts and circumstances that may have influenced the results in specific cases, the Author challenges classical contract theory's assertion of objectivity and its associated assumption of bargaining equality as an integral component of each contract. The Author then uses literature as an illustrative tool to highlight contract law's failings in contexts where bargaining disparities related to race and gender issues are present. This approach is not meant to eliminate contract rules but rather to lessen their formalistic nature to make contract rules more effective. Accordingly, the Article establishes that a law and literature analysis not only exposes flaws in the contract doctrine but demonstrates the need for a more flexible application of contract rules in cases involving race and gender disparity. Arguing that prejudicial behavior must be addressed and pre-empted in order to prevent its harmful effects in the formation of contracts, the Author again uses literature to develop a framework to remedy the biased conduct that leads to inequalities in contract formation.