Articles
Filter
Post List
An Analysis of the Supreme Court’s Reliance on Racial “Stigma” as a Constitutional Concept in Affirmative Action Cases
The Article's focus is confined to discussions of race-based affirmative action; it does not consider stigmatization arguments in the context of discrimination involving gender or disabilities, for example. Further, the Article's scope is limited to the stigmatization issue as between Whites and African Americans. Although similar issues exist with respect to other ethnic or racial groups, we view the White/African American paradigm as providing the clearest framework for analysis. Moreover, the cases of Plessy v. Ferguson and Brown v. Board of Education, joint progenitors of stigmatization as a concept having constitutional significance in interpreting the Equal Protection Clause of the Fourteenth Amendment, arose within that paradigm and discuss the stigma concept in that context.Deconstructing the Ideology of White Aesthetics
In this Article, the author provides a discussion on the dynamic between race and aesthetics. The author states that because Whites are the dominant group in America, they dictate what is beautiful. The consequence of this power dynamic is that the dominant group, Whites, can exercise preferences in deciding how to look or express themselves, whereas people of color are limited to either conforming to an imposed White standard or rejecting it. The author starts by laying out some of the features to what he terms the "ideology of White aesthetics." He then commences to examine how this ideology has played out in Black-White relations and in relations between Asian Americans and Whites, and how it may be used to shed new light both on race relations and on behavior within communities of color. The author concludes by addressing potential counter-arguments.Race-Conscious Diversity Admissions Programs: Furthering a Compelling Interest
This Article argues that narrowly tailored, race-conscious admissions programs can be employed to achieve a more diverse student body and consequently a more enlightened and egalitarian society. An admissions body which looks beyond traditional academic indicators and explores the whole person of each applicant will matriculate a group of students with a wide variety of race, gender, class and other backgrounds, thereby fostering a robust exchange of ideas among these students. Pointing to the enduring precedential value of Bakke as well as the ideological makeup of the Supreme Court, this Article asserts that the Courts would likely uphold a program aimed at promoting diversity. The Article concludes by describing the ideal diversity program and why Asian Americans, in particular, should support these programsCan Minority Voting Rights Survive Miller v. Johnson
Part I of this Article reviews the congressional redistricting process in Georgia, particularly the State's efforts to comply with the Voting Rights Act and avoid the dilution of minority voting strength. Part II describes the plaintiffs' constitutional challenge and the State's asserted defenses, or more accurately its lack of asserted defenses. Part III argues that the decision of the majority rests upon wholly false assumptions about the colorblindness of the political process and the harm caused by remedial redistricting. Part IV notes the expansion in Miller of the cause of action first recognized in Shaw v. Reno. Part V comments on the lack of clear, fair standards in Miller and how that will impact upon legislative decision making and litigation. Part VI discusses the negative impact of the decision, which allows, for the first time, local federal district courts directly to review the preclearance decisions of the Attorney General on the administration of section 5 of the Voting Rights Act. Part VII argues that Miller has the potential for purging substantial numbers of minorities from elected office in the South and wiping out many of the gains so painstakingly won under the Voting Rights Act over the last thirty years.Identifying the Harm in Racial Gerrymandering Claims
This Article proceeds along two lines. First, it reviews the theories of harm set forth in the Justices' various opinions, i.e., the articulated risks to individual rights that may or may not be presented by racial gerrymandering. What is learned from this survey is that Shaw and its progeny serve different purposes for different members of the Court. Four members of the Shaw, Miller v. Johnson, and United States v. Hays majorities-Chief Justice Rehnquist, along with Justices Scalia, Kennedy, and Thomas- are far more concerned with "race" than "gerrymandering." In particular, they consider all race-based government classifications to be inherently injurious, and they appear to view the racial gerrymandering cases as a vehicle for moving the Court's interpretation of the Fourteenth Amendment closer to the ideal of "colorblindness.”The Two-Parent Family in the Liberal State: The Case for Selective Subsidies
This Article seeks to explore in a preliminary way some questions that would be raised by the adoption of such a program. The initial issue raised by the proposal is: does the government ever have any legitimate business favoring some family forms over others? The first-pass answer would appear to be "yes." The law recognizes marriage, restricts it to persons of the opposite sex (at least for now), and confers upon married couples comparative rights and privileges-although fewer than have been enjoyed in the past. The more difficult questions are: what exactly is the nature of the government's interest in promoting certain types of family life, and what are the limits on the forms that the favoritism may take? Specifically, what is the place of "family policy" in the design of benefits programs for the poor? May, or should, the government seek to "privilege" certain family arrangements over others when formulating welfare policy and handing out government largesse? What is the justification for doing so? Is there any reason to believe that such measures will accomplish their stated purpose? How certain must we be that such programs will work before we can "rationally" adopt them?Is Title VI a Magic Bullet? Environmental Racism in the Context of Political-Economic Processes and Imperatives
This Article examines avenues of redress and pollution prevention for impoverished people of color that flow from Title VI litigation strategies within the larger context of the environmental justice movement. Environmental justice issues can serve as tools with which to question status quo distributive policymaking processes and outcomes. Specifically, this Article concerns itself with practical routes toward increasing distributive justice and democratic efficacy.The Dangers of Misappropriation: Misusing Martin Luther King, Jr.’s Legacy to Prove the Colorblind Thesis
This Article focuses on one particular aspect of the colorblind thesis: the misuse of Martin Luther King, Jr.'s image and legacy by liberals, neoliberals, conservatives, and neoconservatives "who cheaply invoke Dr. King's words even as they kill the substance and spirit of his radical message." The campaign supporting the adoption of Proposition 209, the California Civil Rights Initiative ("CCRI"), directly illustrates the misappropriation of King's legacy. Supporters of this anti-affirmative action proposal which calls for racial neutrality and a colorblind America, regularly invoked King's name, suggesting that he would have embraced such a measure. The California Republican Party prepared a television commercial in support of the proposition that included King's reference to his dream of a colorblind and a content-of-character world. After opponents of the measure and civil rights leaders, including Coretta Scott King, denounced such use of King's words, complaining that King's legacy was being distorted, the "I Have a Dream" segment was removed from the commercial. The dangers of this misappropriation of "King-as-icon" and his legacy are illustrative of the ways in which facts and historical figures are distorted and in which iconolatry is substituted for reasoned argument. These dangers, as well as the need to identify and refute inaccurate distortions of history, are discussed in this Article.Stepping into the Projects: Lawmaking, Storytelling, and Practicing the Politics of Identification
In her article, "The Black Community," Its Lawbreakers, and a Politics of Identification, Professor Regina Austin proposes a paradigm to move the Black community beyond a "manifestation of a nostalgic longing for a time when blacks were clearly distinguishable from whites and concern about the welfare of the poor was more natural than our hairdos.” Austin's politics of identification provides the conceptual framework through which the Black community can reconstitute itself in accordance with its own principles, which may or may not be those embraced by the mainstream. This article considers Professor Regina Austin’s politics of identification as practiced by Black lawmakers in the congressional welfare reform debate.The O.J. Simpson Verdict: A Lesson in Black and White
This article is an attempt to analyze the O.J. Simpson verdict and the press coverage of it, to suggest ways not only of improving criminal justice in a diverse community, but also of improving press coverage of criminal justice in a diverse community. Part Two of this essay is subdivided into two sections. The first section surveys the op-ed pages of major newspapers to evaluate the analysis of, and the commentary on, the O.J. Simpson verdict. The second section deconstructs the press' spin on the verdict. Part Three of this article discusses the role of a jury and proof beyond a reasonable doubt among a diverse set of jurors. Part Four is an effort to explain reasonable doubt and to provide the factual analysis in support of the jury's verdict in the O.J. Simpson case-an exercise which the press largely shrugged off. The conclusion contains no easy answer, but suggests a role for concerned public constituencies in demanding a better brand of criminal justice and press coverage of criminal justice.
