AFAM 162: African American History: From Emancipation to the Present (2010)

Lecture 24

 - Who Speaks for the Race?


In this lecture, Professor Holloway discusses how race influenced public policy by examining some of the key cultural symbols of the past few decades, all in an effort to answer the question: how is race used in our society? Professor Holloway discusses Bill Clinton’s policies in particular, honing in on his ability to connect with the African American community, the controversy surrounding Lani Guinier’s cabinet appointment, and his National Dialogue on Race. He then turns to California to examine the passage of Propositions 187 and 209, which begin to call into question common notions about civil rights legislation and affirmative action in our nation. In the remainder of the lecture, Professor Holloway talks about four landmark court cases–Shaw v. Reno, Adarand v. Pena, Hopwood v. Texas, and Grutter v. Bollinger–to shed light on the way race began to operate in a legal setting, as well as the general dumbing down of discourse in politics and media about race, in the post-civil rights era.

Warning: This lecture contains graphic content and/or adult language that some users may find disturbing.

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African American History: From Emancipation to the Present (2010)

AFAM 162 - Lecture 24 - Who Speaks for the Race?

Chapter 1. Bill Clinton and Lani Guinier [00:00:00]

Professor Jonathan Holloway: 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 FOB, 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 very crude 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. [Looks at screen] 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.

Chapter 2. The Passage of Propositions 187 and 209 [00:11:39]

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. One eighty-seven 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. One eighty-seven 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 Berkley, 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 Dialog 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.

Chapter 3. Shaw v. Reno [00:28:24]

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 [adjusts slides]–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, the thing Bakke does, he says, “We can think about race when it comes to sort of adjudicating the limits, the parameters of racial belonging.”  Alright, 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 sixty-five, 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 ninety-three 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 Twelve, 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 twelfth congressional district, it certainly looks awfully strange.

Chapter 4. Adarand v. Peña and Hopwood v. Texas [00:33:39]

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.

Nineteen ninety-six, 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.

Chapter 5. Grutter v. Bollinger [00:37:22]

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 sixty-four?  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’d 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 one of the fascinating turn in civil rights law, equal protection law, in the nineties, in the eighties into the nineties. Something I 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 bussing. 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 seventy-three, a degree in architecture in seventy-six. 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 bussing policies. He’s not an activist as far as bussing 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.

[end of transcript]

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