Tip:
Highlight text to annotate it
X
Last week we spent a lot of time dealing with high
electoral politics, canvassing the career of
Jesse Jackson, scooting past Ronald Reagan's and George
Bush's and--presidencies and the campaign,
the Bush-Dukakis campaign, for,
you know, the Willie Horton ad and the way,
and the way in which racial conversations become
subverted into something else,
although still remaining quite racial in the context
of 1990s politics, and something,
a process that began decades earlier,
certainly, with the civil rights successes or
excesses, depending on one's politics. Much of last
week's themes were dealing with the submergence of
racial discourse and also the racialization of crime,
and also the further development of coalition
politics as we move to a much more racially and
ethnically, ethnically mixed society. Now in the last
two lectures of the course--I can't believe
we're already here, but we are--I want to continue with
my focus on post-civil rights presidencies and
public policies, examining in particular how race
affected public policy and how cultural symbols still
do so many, so much heavy lifting for a much more
complicated real world in which we all live. Some of
the themes of this week are deal--are,
are discussions relating to the presumptions of the
permanence of civil rights changes,
and the presumptions of the goals of civil rights. You
know, what is the underlying presumption of integration?
What is "the race" and who speaks for "the race"?
These are themes you're going to pick up in your
reading, certainly. There will be,
as you've become accustomed already in this course,
overlapping as far as chronology as well as
policy, court cases, and cultural symbols,
all operating at the same time in overlapping ways.
So we left off really in George Bush's presidency.
I want to pick up in 1992 with Bill Clinton being
elected to the office. He's elected with a,
a--embodying great Democratic promise. I mean,
this is after twelve years of Republicans in control of
the White House and, you know,
a generation of, of younger people not ever knowing a
Democrat in the White House. Bill Clinton comes
in with an incredible sense of charisma,
and it's really, it's really quite astonishing,
and a clear natural talent to speak to black Americans
in a voice that black Americans can recognize.
And for African America, it becomes a moment of great
hope in terms of what the potential--the future might
hold.
Clinton makes a lot of noise,
and it turns out to be noise in many ways,
about his commitment to making a cabinet and a White
House administration that, quote,
"looked like America." This is one of his phrases during
the period. Making his administration look like
America runs into a problem, when he nominates to the
position of Assistant Secretary of Civil Rights
Professor of Law at the University of Pennsylvania
at the time named Lani Guinier. During this moment
in the early years of the Clinton presidency,
or when he was president-elect,
being a friend of Bill, an "F.O.B.,
was a big deal. If you were a friend of Bill with
all of his connections and his wife's connections,
you might have a real in to becoming part of the White
House administration.
Lani, Lani Guinier is one of these individuals,
goes, you know, goes back to law school days with the
Clintons. Guinier had been an advocate for years in,
in law review articles of something called "cumulative
voting," a process that allowed for greater interest
group representation. Something along the lines,
and I'm being verycrude about it,
if there are ten candidates running for an office,
you don't just get one vote under cumulative voting.
You have ten votes you spread along the ten
candidates. Maybe on a certain issue,
Candidate A really represents your views. You
want to give that person five votes. And on a
certain issue Candidate--I don't know if I did A or B
or one or two--another candidate represents a lot
of your opinions, so you want to give that person
three votes.
It's actually a way of hyper-democratizing who gets
represent--represented in office. It's a process,
moreover, and this is important,
that the Reagan and Bush Justice Departments had
sanctioned in over three dozen instances. So it
is--it was an embrace of democracy,
letting the little person have a,
a chance to say something, and it was a process that
had been embraced by Republican-nominated or
controlled Department of Justice.
However, Bill Clinton, as much as he excited the
Democratic, liberal base, he infuriated a conservative
base, and that conservative base went into attack mode.
There'd been a phrase that had been really popularized
during Ronald Reagan's presidency,
and that's this, the phrase "the spin doctor." Someone
who comes in, who doctors up the message,
spins it around, and turns it into something quite
different. Lani Guinier is tagged,
because of her cumulative voting ideology,
as being a "quota queen" by conservative media types.
She's a "quota queen." Now what's the big deal with the
phrase? The phrase actually is very clever,
because it links to two different problems in the
American present to the American past. One is this
direct connotation of the welfare queen,
which is a, an, a catchphrase of the
eighties. Welfare queens were used as individuals,
I mean propped up as individuals who were
bringing down the American social network and really a
blight on the American economy. And these were
depicted as women, of course,
they were queens, overwhelmingly African
American, although most welfare recipients are not
African American, but people who,
who capitalized upon the system and took advantage of
it; that under the logic of welfare at the time,
the more children you had, the more aid you received.
Now the story's much more complicated than this,
but the, the construction of the image was that the
welfare queen was the person responsible for being a real
drain on the system. So Guinier's politics or
ideology is linked to excess,
excess of the state with the welfare queen ideology. But
the quota part's also important. That links back
earlier than the Reagan presidency,
by linking it to quotas, something that had come up
in the Supreme Court case in Bakke versus the Regents of
the University of California,
decided in 1978. The Supreme Court case had said
that quotas were unconstitutional. Now
Bakke, just in a super quick nutshell,
Allan Bakke, white man, sues--applies for University
of California, Davis medical school,
isn't admitted. And he discovers through his
research that according to scores,
in terms of what scores people received on the MCAT,
that African American/Latino applicants got in who scored
lower than he did. And then he also discovered that UC
Davis, in an attempt to diversify its student body,
had created a set-aside program that had quotas,
that--and I'm making the numbers up here--that "we're
going to admit up to twenty, or at minimum
twenty"--again, I don't--the,
the actual terminology is not important right
now--"African American/Latino medical
students into UC Davis, with a goal of diversifying our
population." The Supreme Court weighs in in 1978
saying that such set-aside programs,
mandated numbers, were unconstitutional.
Okay, there it is. I had mute on,
I'm sorry. That you cannot just pick a number and say
that that's okay. So Guinier is linked to the
excesses of welfare reform or welfare policies in the
1980s, the excesses of civil rights ideology,
trying to diversify America through quotas,
through the 1970s, decided in seventy-eight. And
people started attacking her,
politicians, activists. Clinton famously takes
her--says he's going to take a retreat to Camp David and
takes her, her law review articles. He's going to
think about it. And he comes back from Camp David
saying, you know, "I've looked at this thing more
carefully, and, you know, her views are not in line
with the kind of politics that I want to practice."
And Clinton withdraws the nomination,
even when his attorney general,
Janet Reno, said that Guinier deserved the right
to at least present her actual views. The views had
been misappropriated. Black liberals felt cheated by
Clinton as he made a clear move to the center. They
felt he was caving in to conservative politicians and
activists.
And whether he was or he wasn't,
Clinton does--I mean on that case with Lani Guinier,
Clinton does make a very clear move to take up
Reagan's strategy of capture--Reagan captured
the, the moderate Democrat who was fed up and
frustrated, and brought them over to the Republican camp;
Clinton went to take them back. He wanted to capture
the middle ground voters in America,
which, as the politics in this country become more
conservative, meant a dramatic turn or a shift to
the right. Now, in part, liberals are concerned
because they see Clinton's decision as part of a
general move away from substantive embrace of civil
rights ideologies and victories of the late
1960s--of the 1960s.
Clinton, it soon seemed to these liberals and
activists, was more willing, more than willing,
to cede ground to conservatives in order to
steal some of their thunder. In fact,
you, you'd hear activists during the 1990s being
frustrated, because Clinton was saying all these things,
"all these things" in quotes,
that Republicans had been talking about for the
longest time, but claiming credit for them. It was a
massive stroke of, of political leadership,
even though it certainly frustrated to no end
conservatives and liberals. Now Clinton,
although an individual who had his weaknesses,
he certainly had incredible strengths,
and he understood the ability--he had the ability
to read the tenor of the times. It's an era of
repositioning on the national scene against the
so-called excesses of the 1960s. In this course,
I spend a lot of time talking about look--taking a
critical eye, looking at southern states and their,
their policies, states' versus federal rights,
for example. And while other states still have,
or still are quite rich with complications in terms of
racial politics, I want to turn my attention for,
for a little bit to the West. This is actually a,
a structural flaw in the course,
because there's so much material focusing on the
Southeast. This is a national problem. For the
moment, we'll just focus on the West. It's in
California in the 1990s--It's in California in
the 1990s where America sees a new frontier in race
politics, and this is something that grabs the
attention of the nation.
I mean, California does take up a lot of space.
It grabs the attention of the nation and also ends up
writing a cru--a, a, an interesting chapter in
Clinton's race politics. I want to talk now about
propos--two propositions in the 1990s. One is
Proposition 187, called "Save Our State,
and the second is Proposition 209,
called the "California Civil Rights Initiative." In
1994--and by the way, I'm sorry. For those who don't
know, California has this allegedly super democratic
process of changing, changing the state
constitution, that if the citizens of the state garner
enough signatures, and they float a proposition to
change the state constitution,
they can act with--they can enact changes to the
constitution. Now it seems democratic on its surf--on
its face, but it's actually been hijacked--I don't know
when that started, probably from the beginning--by very
strong corporate interest and political activist
interest on all sides of the political spectrum,
that have the resources to hire people to gather
signatures. Proposition 187 certainly embodied this kind
of organizing logic. Again, it's called "Save Our
State." It's a proposition heavily supported by then
Governor of California Pete Wilson,
someone who'd been a moderate Republican,
who turns aggressively conservative as he
be--begins to put out--to cast an eye on a
presidential campaign, a campaign that ultimately
flops miserably. Everybody knows that race and economic
issues are politically divisive,
and that way they can be extremely effective. This
is what Wilson identifies in Prop.
187 and sees it as a way to put his name on the national
screen.
Proposition 187 focused on social services. 187
ended--if, if it were put--made law,
would end public social services,
would end health services and education for
undoc--undocumented immigrants,
illegal aliens, illegal aliens. So it's ending the
social network--the safety net,
excuse me, and education for undocumented immigrants.
And it was about addressing a fiscal crisis in
healthcare in the state. It was a very real crisis,
but it was also cast in racial light.
There was a controversial ad that showed nighttime border
crossers. Now they're non-racialized. No one ever
mentions their race, the advertiser doesn't,
but everybody knows that these are Mexicans crossing
the border at night. And these unnamed,
un-raced individuals are depicted in the ad as a
pestilent scourge, scourge, like rats invading the
house; that they are coming into our state,
they are invading it, they're taking it over. 187
does pass. "Let's save our state,
by God," but it's caught up in litigation and ultimately
killed when the moderate Democrat Grey Davis now the
become--now the governor of California,
dismisses it in 1999. But it takes up,
you know, the second half of the,
the decade as far as political energy in the
state of California.
At the same time, Prop 187 is winding its way through
the litigation process, California starts debating
another proposition, this one in two--in 1996,
Prop.
209, the "California Civil Rights Initiative." Now the
"California Civil Rights Initiative" ends
discrimination against and preferential treatment for
any individual or groups based on race,
sex, color, ethnicity, or national origin. So it ends
discrimination against individuals or groups,
based on race, sex, color, ethnicity,
or national origin. This is,
you know, something very much in the tradition of the
civil rights heritage, of course. But it also kills
preferential treatment for the same groups. It is an
anti-affirmative action proposition. As Prop.
209 is garnering its votes, you have,
in the University of California system,
a series of faculty senate votes,
you know, for or against the proposition,
and a, and a state prop--a state law that's being
changed that's going to end affirmative action in the UC
system, regardless of what California,
excuse me, what Prop.
209 does. Affirmative action's killed in the UC
system. The numbers of minorities plummet overnight
in the flagship schools, like UC Berkeley,
UCLA, UC San Diego.
I was teaching at UC San Diego at the time,
which did--never did have a large African American
population, student population. It's around two
and a half percent. Within one year,
it's cut in half to one and a half percent.
You have at UCLA and, and Cal tremendous drops in
numbers of African American students in,
in the college and also in places like the law school.
Now what's really important about the "California Civil
Rights Initiative" and the anti-affirmative action
initiatives in the state is that--well,
a couple of different things. There's a
hyper-focus on race. People are talking about,
you know, affirmative action and "it's going to eliminate
the black and brown presence on campuses. It's going to
eliminate the chance for black and brown people to,
to have an equal opportunity to get certain jobs." But
the group that it affected the most was white women.
Since affirmative action became a federal policy,
white women have overwhelmingly been the
group that benefited the most from affirmative action
policies, and they would be the group most negatively
affected. And yet that discourse is written out of
the conversation in California. Also,
at the same time, there's a T.V.
ad appears. It runs for one day,
just like the Willie Horton ad,
ad runs just a couple of times in a day. The T.V.
ad runs for one day that claims that Martin Luther
King would have supported Proposition 209,
taking a few lines from his famous speeches and
misrepresenting them. In fact,
King had gone on the record saying that he was in
support of these minority set-aside programs then,
soon to be called affirmative action
programs. Jesse Jackson is horrified that these two
professors at Berkeley, I believe,
who organized this ad campaign were the ones
behind the logic of the "California Civil Rights
Initiative," that they would misappropriate King in that
way. They weren't the first,
and they wouldn't be the last,
but it's an important sort of legacy,
or wrestling with the memory of who people like King
were. Then you have the issue of the name itself.
It's the "California Civil Rights Initiative." In our
post-civil rights age, when we are all enlightened on
racial issues, so our general feeling goes,
who's going to be against civil rights? People don't
want to be against civil rights. They don't want to
be considered racist, after all. And so when people go
into the ballot booth, the election booth,
and vote, it turns out Calif--Proposition 209,
the "California Civ--Civil Rights Initiative,
essentially sails through, and it enjoys a majority of
African American support, enjoys a major--majority of
support from white women, and I believe--I'm just,
I don't have my notes on this issue in front of me,
so I'm not going to vouch for it for certain,
but I think it receives a majority of Mexican American
support as well. If not a majority,
the numbers are high. When asked about these issues,
white women responded that they didn't realize that the
civ--civil rights initiative would actually--was a vote
against their own self-interest. African
Americans made it clear, "We're for civil rights."
They hadn't read the proposition. And Mexican
Americans supported it as well for curious reasons.
They support civil rights, but they also saw this way
of, of supporting this platform as a way to
"Americanize" themselves, even though they already had
American citizenship status. So what--taking all
of these things together, what does it actually lead
us to? It leads us to a point where we are today,
frankly, of a general dumbing down of discourse in
politics and media about race,
and a gen--general laziness as well amongst the
electorate when it comes to thinking about these
things. Now it doesn't help this process when you have
people making editorial decisions that play to our
low--lowest common denominator. And this
really is a theme of the American political thought,
social and cultural thought, of the last twenty or thirty
years, lowest common denominator does a really
great job of appearing first. So it doesn't help
us become more astute thinkers about race and
citizenship and belonging in politics when you have
people making editorial decisions that capitalize
upon racialized notions of blacks as criminal,
for instance. Just, just take this--this is all the
attention that I'm going to pay to the O.J.
Simpson case, although it captivates the United
States. The picture you see on your left is the picture
that ran in Time magazine of O.J.
Simpson. The actual picture is the one on the right.
Now people know what O.J.
Simpson looks like, okay, and this is not a poor--I
mean, it's, it's, it's not a high-quality image,
but it's not appearing darker because it's being
projected. That is a darkened,
clearly darkened, picture of O.J.
Simpson. So when the cover ran,
people were like, "That seems a little--I don't
think O.J.'s that dark." And then someone got a hold
of the actual print from the mug shot. People were up in
arms.
"What are you doing?" The response was,
"Well, by Photoshopping things a little bit,
it made the image pop." That was the quote,
"it made the image pop." It was a better image. As if
anybody needed to have a better image of O.J.
Simpson. It wasn't like he was a mystery,
and no matter what you felt about what he did or didn't
do, you're still going to buy the magazine cover
whether you're going to have a light image or a dark
image of O.J.
Simpson. The young editor, photographic editor,
wasn't around much longer, I believe,
at Time, but he was probably taking the fall for some
other editorial decision. Anyway,
our national discourse is one that's become
increasingly impoverished, and we're still in that
moment in our leisurely "post-racial" today. But
it's in this state of affairs,
getting back to Clinton now, with Proposition "Save Our
State," Proposition "California Civil Rights
Initiative," O.J.
Simpson in that bizarre moment,
it's in this state of affairs that Bill Clinton
travels to University of California,
San Diego for its graduation ceremony in 1997,
and while there, announces a new presidential initiative,
"a National Dialogue on Race,
or "the One America," or "the President's Race
Initiative," or "a National Conversation on Race." It
had all these different titles. It was all the same
thing. Clinton wanted to do something really--many of us
thought that was really astonishing. Recognizing
that there was an impoverished state of affair
in our national conversation about race--this is a person
who grows up in the South, grows up around African
Americans, can speak in a vernacular diction that was
reminiscent, or sounded familiar to African
Americans. This is a person who got black America and
was tremendously popular amongst black Americans,
even despite Lani Guinier and other missteps along the
way. People thought, "Wow, Clinton's actually going to
do something here." He is better positioned than any
other President since Jimmy Carter to do this. The idea
is, we're going to have town hall meetings all across the
country where members of Clinton's Blue Ribbon
Committee, chaired by the late historian John Hope
Franklin, path breaking historian of many--for many
reasons but, most famously, for breaking so many color
lines as a black historian. Now you had these town hall
meetings across the country to talk about our current
conversation about race. A lot of really smart people
on this committee; it seemed like a moment of real
promise. And the moment kind of implodes right away
when the commission comes together to sort of organize
itself and Angela Oh, a Korean attorney in Los
Angeles, tremendously strong record when it comes to
civil rights law, she clashes immediately with
John Hope Franklin. She has an incredibly strong record
on civil rights activism and scholarship,
and the clash was about how, in 1997,
'98, should America talk about race? Franklin was
saying, "You must start with slavery. Everything comes
from that, that everything--every kind of
conversation comes with that." Angela Oh says,
"You start from slavery, you are eliminating from the
conversation millions, Chinese,
Japanese, and Koreans and people from other different
parts of the world who don't have part of that
experience." And in so many ways,
they're both exactly right, so how do you resolve this?
Well, it turns out you don't. The commission
effectively becomes a, a dead letter,
had a few conversations. Nothing much comes of it.
Clinton's philandering, his denial,
and his impeachment, serves as a profound distraction
and sinks his second term. So the conversation becomes
a muted conversation, muted by the impeachment trial if
nothing else. Clinton's impeachment trial was not
the only important court case of the nineties. And I
want to spend what time I have left talking about some
of these court cases, because it brings us
really--it brings us to a campus. It brings us to our
fairly current moment. I want to talk about four
court cases, three from the 1990s and one from 2003.
Most of them are Supreme Court cases,
not all of them though. The first one is Shaw v.
Reno, v.
Reno, against the attorney general of the United
States, Janet Reno, and it involved redistricting in
North Carolina, congressional districts.
The federal government required North Carolina,
the state, the legislature, to create another district
that would guarantee a black majority. North Carolina's
not an unusual southern state with large black
populations, but also clustered black
populations. And it wasn't unusual among southern
states in that districts were set up in such a way
that the black vote was, was watered down,
thinned out. The federal government,
the federal government said, "North Carolina,
you need to get your act together.
You need to create another district that will
have--create the chance to elect a black person in
office--put a black person in office. We need a black
majority district." It would be the new twelfth
district in North Carolina.
The district was formed, and then a suit was brought by
those who felt the district was a result of racial
gerrymandering. Racial gerrymandering,
in this case, in support of an African American
political presence. Racial gerrymandering had always
been trying to eliminate a black political presence,
in talking about black-white issues. Now there are
several key issues that come up in the decision in Shaw
v.
Reno. It was decided in 1993. One key issue is that
race is now a suspect category. You know,
there was a slide a, a little while ago,
I, I, I realized I, I left it a little bit too early
in, in Bakke. Actually, let me just--one point I forgot
to mention that's very important right now: quotas
cannot be considered in application,
but race can be considered as one of the key factors in
admissions. So Bakke's point,
one of the things Bakke does,
he says, "We can think about race when it comes to sort
of adjudicating the limits, the parameters of racial
belonging." All right, just keep that fact in mind. In
Shaw v.
Reno, the Supreme Court says race is a suspect category.
"We've come a long way since the challenges of the 1960s
and we need to think a little more carefully about
when race is used." The Voting Rights Act says that
people had to consider issues of race when setting
up jurisdictions, and Shaw says you just can't. So
Shaw starts to chip away at the Voting Rights Act. And
it comes up with a resolution: that race cannot
be the predominant factor in deciding something like
voting districts, but it can be considered. So this is
something in line with Bakke but a little bit different.
Race can be considered but can't be the predominant
factor; it is a suspect category. And this is the
most important phrase: there must be a compelling
government interest to justify considering race.
So Shaw v.
Reno is really asking, "How do we,
how do we take race into consideration when we're
setting up public policy?" It challenges the Voting
Rights Act of '65, so it's chipping away at part of
it. There must be a compelling government
interest. Now this is the twelfth district,
I'm going to show you in a second. And I'll confess,
I remember there was a, there was a recent
resolution on this last year about--it,
it came back again, I confess I don't even recall
what the decision was, but in '93 this is what people
were fighting against, the twelfth district. See it
right there, that little thing? Certainly a suspect
shape. I mean, districts are always weird looking
anyway, following rivers or sort of,
census tracts. District 12, and it's actually thicker
here on the map than it is in reality,
in the proposal, because sometimes it just ran along
the highway. There's no people living on the
highway. So it would go from one black neighborhood
to another black neighborhood. Now the
supposition of course is that black folks will vote
for black people. And that's,
that's something you can talk about in your
discussion section. That's a whole other kind of thorny
briar patch of presumptions. So North
Carolina's proposed 12th Congressional District,
it certainly looks awfully strange. Going forward,
1995, Adarand v.
Peña. It's a case in Colorado. Adarand
Construction versus Peña, who's the secretary of
agri--transportation, excuse me.
Up to this point, federal agencies had given financial
incentives to those contractors who hire
minority-controlled subcontractors. So if you
want to build something, and you're a,
say a contractor, I get a bonus if I start looking for
minority-owned firms to help do some of the work that I'm
supporting. And in this particular case,
Adarand, a white-owned construction firm,
submitted the lowest bid on a contract for a highway,
but not, but did not get the contract. The contract went
instead to a minority-owned firm. So the Supreme Court
holds, the Supreme Court holds that race can only be
used if there's a compelling interest,
that builds off of Shaw v.
Reno, and then that the government agency using
racial distribution must do so under strict scrutiny,
another one of these great Supreme Court phrases,
and it must be used in a narrowly tailored way.
Compelling interest, strict scrutiny,
narrowly tailored. What you have in Adarand v.
Peña is again a narrowing of the option to use race. You
got a incred--you have to have an incredibly strong
case if you're going to press a,
quote, "racial iss--issue" and hope to have it
succeed. 1996, state of Texas,
it's not a Supreme Court case.
In Hopwood v.
Texas, the University of Texas law school had been
aiming, a tradition of aiming to admit a class that
looked like Texas. And it actually changed its
admission formula to benefit black and Latino
applicants. Cheryl Hopwood, the plaintiff,
is one of four people, all white,
who were denied admission and then sued. The district
court sides with the University of Texas,
saying they can set their own admissions policy. They
haven't offended the logic that was announced in
Bakke. The appeals court took the plaintiffs' side
and in Hopwood, it says race cannot be used as a plus
factor in the consideration of applications. So Texas
didn't use quotas. That's unconstitutional,
can't do it. But it did say--you know,
I'm making up the numbers in the schematic--if one
hundred points is what you need to get admitted to the
University of Texas law school,
if you're African American, we're going to give you ten
more points. It helps boost your score. And this is
actually a practice used by many universities across the
country. I know it's u--used,
used by the University of California--they gave a bump
up to those from historically
underrepresented groups. It also gave a bump up for
veterans, and it gave a bump up for other,
other populations as well. But it was racial and ethnic
minorities who become the focus of this excess. So if
you take Bakke as the foundation,
you add Shaw v.
Reno, you take Adarand versus Peña,
you take Hopwood versus Texas,
you have a situation where the very premise of Bakke,
which eliminated quotas but said race could be used,
so it supported affirmative action,
the premise of Bakke is being stripped away. The
Voting Rights Act is being narrowed in terms of how it
can be applied, and now sort of ground zero for the
debate is university admissions policies. This
is why the stakes were so high in 2003 at the
University of Michigan.
In 1997, in 1997, Barbara Grutter had applied to the
University of Michigan law school and been denied
admission. The law school freely admitted that it used
race in its admission as a compelling interest to
achieve diversity. It used that word that they knew
was--I mean, it's law school. Compelling interest
is actually--that would survive a litmus test,
so they felt. But the question was,
does the University of Michigan law school,
did its use of preferences in student admissions
violate the equal protection clause of the Fourteenth
Amendment or the Civil Rights Act of '64? These
were the questions before the court. Now I said
1997. This thing is bouncing around until the
court decides it in 2003. The lead-up to the Supreme
Court decision was really quite fascinating,
because it tells a story of our contemporary political
and capital--corporate culture as it,
as it comes to affirmative action. You have friends of
the court, petitions being filed by a whole bunch of
people, and you have a really fascinating coalition
being formed by corporate interests and retired
military generals, that if one takes a stereotype in
mind, they think, "well these are very conservative
populations." These are the groups that were very much
in favor of University of Michigan's admissions
policy, very much in favor of affirmative action,
the military actually being one of the great places for
diversifying management structures. I'm not saying
it's perfect; no place is. But the military had done
more than many other institutions to diversify
itself over the course of the previous forty years.
And corporations recognizing,
if you go back to Jesse Jackson,
and his Operation PUSH, and his boycotts of companies
like Coca-Cola and Anheuser-Busch,
corporations recognizing, "We need to have a pool of
talent that we can tap into for management positions,
so we can tap into markets and make more money." This
is what the corporations were trying to do,
of course. "We need to preserve affirmative action
policies, as long as there aren't quotas,
wherever we can find them." George Bush White House
comes out in support of the plaintiffs. The Supreme
Court weighs in, and it has a mixed answer. People
didn't know what was going to happen. The mixed answer
is that student body diversity is a compelling
state interest in the context of university
admissions, of university admissions. It's
compelling. Race can therefore be a factor in
consideration of the application,
as long as its use is narrowly tailored. So you
see, you know, it's building on the language of the court
cases I was already talking about. It reaffirms,
therefore--Grutter v.
Bollinger reaffirms Bakke, maintains a narrow framework
in which to understand Bakke. But then Sandra Day
O'Connor says, and does something rather unusual
that she's since distanced herself from,
she goes, "You know, we need this now." You know,
one of the issues with conservatives,
and this is something that, that--oh I just drew a blank
on his name. It doesn't really matter. This is a,
a, an ideology that many conservatives are saying,
"Look, it's been thirty and forty years since the civil
rights movement. That's enough time." And liberals
would say, "Ah, what about the previous two hundred?"
Well, anyway, Sandra Day O'Connor says,
"Yeah, we've come a long way,
but we're still not perfect as a society in this issue.
In twenty-five years--I think about twenty-five
years is about right." How she came up with a number,
I have no idea. "But in twenty-five years,
it will probably be time to revisit this question." And
you can bet, well before twenty-five years is up I'm
sure, but if by some miracle it's not challenged within
twenty-five years, you better believe that there'll
be a twenty-fifth anniversary of suits against
affirmative action, and college admissions,
and, and wherever else it's articulated. So the
University of Michigan law school had to actually scrap
its policy. The University of Michigan had a slightly
different policy that supported affirmative action
in diversifying its pop--student population,
was able to keep it. Now collectively,
these cases demonstrate how race works in a legal
setting since the civil rights triumphs of the
1960s. Something interesting has happened in
these cases, though.
In each of these cases, white plaintiffs were the
ones who were filing suit, claiming their equal rights
had been violated. This is sort of the fascinating turn
in civil rights law, equal protection law,
in the nineties, in the eighties into the nineties.
Something that was encouraged,
by the way, by Clarence Thomas,
when he was the head of the EEOC,
that became an organization--it was put
there by Ronald Reagan--it was an organization that
actually ended up becoming non-functioning as far as
supporting claims for racial discrimination,
ethnic discrimination, and gender discrimination. The
backlog is tens of thousands of cases. But we're in a
moment in the 1990s where the equal protection clause
of, of the Fourteenth Amendment is used often and
to great effect by civil rights advocates
over--especially the height of the movement in the
fifties and sixties--has now a much narrower application
and is used with greater success to roll back some of
the more controversial gains of the civil rights
movement. So in a sense, the civil,
civil rights laws are being used against the policies
promulgated by civil rights activism when you get into
the 1990s.
All of this begs the question,
is, how race is used in our society. This will really
be the lecture--the topic of the final lecture,
but it's important to understand the passions. I
mean, I've been talking about them in sort of a
clinical way that you see in Supreme Court cases,
federal court cases, the last twenty or thirty
minutes. But the passion of how people use and--use and
abuse race hasn't diminished in the wake of the civil
rights victories of the 1960s,
when the civil rights excesses--again,
based on your politics. In the 1970s,
for instance, in Boston, Mass.--I already talked
about the Stuart case in Boston in the nineties. But
Boston has a nasty history when it comes to racial and
ethnic politics. White ethnic communities in Boston
are up in arms. There's a new policy about busing.
They were going to take black kids in Boston--this
is a highly segregated city--and bring them into,
quote "our schools" and ship "our kids" out to black
schools. "This is an atrocity." So you have
gangs of angry white ethnic Bostonians attacking school
buses with children in them, hurling epithets left and
right, and acting in the most strug--disturbing kinds
of ways, when you think about the politics of racial
symbolism and citizenship. I mean,
these are some of the core themes with which I began
this course. Theodore Landsmark,
an African American man, graduates from Yale with a
J.D.
in '73, a degree in architecture in '76. Up in
Boston, he's walking out of City Hall,
a well-dressed man, three-piece suit,
very professional. At least until recently--he still may
be--the president of a, of a,
of an arts university in Boston. He steps out into
the City Hall Plaza, unaware that there is a mob of these
angry white ethnic individuals upset about
busing policies. He's not an activist as far as busing
is concerned. He's not one of the,
the people on the front lines calling for change,
but he is black. And that's all that mattered to the
person who approached him and expressed his idea about
citizenship upon, or rather in,
Landsmark. Taking the American flag,
with a fixed point, and goring Landsmark. He
survives. He survives. But if you're thinking that the
politics of citizenship, and belonging,
and of racial symbolism--wrapped up in
this case in just a black man walking out of City
Hall--if you think those were politics of a different
era, going back prior to the sixties and fifties and
earlier--this is 1970s--and if you think it's only
politics of the 1970s, I think in the last lecture
we'll see that it's a problem very much with us in
our "post-racial" age. Thank you very much.