FIRST READING MODULE: POST RACIAL AMERICA?
SECOND READING MODULE: RACE, LAW, AND NATIONAL IDENTITY
THE AMERICAN RACIAL LEGAL ORDER
Origins
 US CON and early law provide norms and precepts to maintain a slavery regime
o Concepts:
 Inferiority, racial purity, property, powerlessness, discouragement of
manuition and subjugation of free blacks, limitation of the capacity to
resist, sexual dominance
Slavery and the judiciary
 Slavery requires uncontrolled authority of the slave’s body
 “slavery trinity”
o absolute dominion is critical the value of the slaves as property, ensures the
security of the master, and ensure public tranquility
 Norms of slavery regime put forth through both positive law (CON, slave codes)
and case law
 Norms and precepts of slavery regime
o Natural inferiority
o Promoting racial purity, coupled with sexual dominance
o Idea of property
o Powerlessness
o Discouraging manuitions
o Disabling free blacks and slaves
o Disabling black resistance
o Hindered black exposure to culture and education
 Case law…using violence and cruelty to promote the slavery trinity
 Not just judges and legislators advancing the norms of slavery
o Also, senators and local officials
 Sen. Hammond (SC)…every good society needs a mudsilled labor
pool to perform menial labor…mudsilled theory
 Slaveocracy
o Pigmentocracy
 Juxtaposition of freedom/liberty and racial oppression
 Fugitive slave provisions
o Property rights
 Up until 1850, national authority was thought to be the main means for regulating the
racial order
 Growing sense of awareness of the moral implications of slavery
o What do you do when law runs up against your perception of the good?
 Revolutionary means to achieve revolutionary ends? … radical
Indian Nations and the emerging Indian identity
 Assimilation v. removalism
 SC’s power is limited in race case
o The limit of force comes on the enforcement side (within the executive)
 BIG QUESTION…Can 19th century federal Indian policy be viewed as ethnic
cleansing?
 New concepts
o Formation of conflicts
 States become the oppressors of minority rights
 National authority is called to extinguish this inequitable policies
o Assimilation
 Not considered for black slaves
 Understand assimilation as predatory assimilation
 With race it is typical asymmetrical assimilation, rather than
bilateral blending
 Whites will not become more Indian
 Qualified assimilation coupled with segregation
o Pluralistic association
o Formation of an Indian state
o Development of essentialism in notions of race
 Diversity if Indians is conflated into the noble savage
 Diversity of whites is conflated into the American
 Diversity of Negros is conflated into blacks
o Racial discourse is becoming increasingly phallocentric
 No mention of women
o Racial discourse is becoming formalized through law
 Legal morality makes up for the lack of morality in race relations
 Tocqueville was wrong about Indians perishing, even though their population has
decreased considerably
 Does slavery dishonor blacks? Does the conquering of Indian nations dishonor
Indians? Does it dishonor dominant society for treating these peoples this way?
o This leads into the next section…the question of honor
Race and reconstruction: reshaping the constitutional order
 Remnants of the civil war still linger
o Tea Party
o Attempted celebration of Confederate history month in VA
o Flying of the Confederate flag next to the SC state capital
 NAACP is still “the enemy”
 Perpetuation of racial and political conflict over the maintenance of Confederate
rhetoric and imagery
o Reconstruction also served as one of the most contentious periods of
American history. Issues:
 Race and national identity
 Federalism
 Construction of a historical narrative
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Views
o (1) Negative portrayal (traditional view)
o (2) Revisionist view of reconstruction (1960s;
prevailing view)
 both traditionalists and revisionists agree
that reconstruction methods were radical and
that the congressional/constitutional
transformations were revolutionary
o (3) Post-Revisionist
 reconstruction wasn’t nearly as radical or
revolutionary
Why do people still battle of Reconstructionist history?
o Why do we still focus on the Civil War?
 I.e., things like confederate reenactments, Tea Party rhetoric, Southern
nostalgia
 Romantic sense of loss associated with the “farmers/underdogs” of the
Confederacy fighting on their front lawns
 The war was about Confederate liberty from big government
(much like the American revolution)
 Sense of recognition with rebellious movements
 Southern honor/dignity
Reconstruction’s reshaping of the constitutional order…based on giving rights to
individuals….abolition of slavery; elevation to citizenship; equal protection clause;
due process clause; voting rights
o Emancipation Proclamation
o Thirteenth Amendment
 black codes ensued
 remember: there was no moral condemnation of slavery
o thus, the underlying notions of black inferiority
maintaining the slavery regime were not
condemned. So in a sense, notions perpetuating
black inferiority were not morally condemned.
Thus, black codes could be more restrictive than
not.
o Civil Rights Act of 1866
 Effectively overrules black codes
 Civil rights v. political rights v. social rights
o Presidential Veto Message
 Johnson…granting blacks citizenship signaled preferential legal
treatment for blacks
o Fourteenth Amendment
o Fifteenth Amendment
Timeline
o 1865-1867…Presidential Reconstruction
 before ratification of 14th Amendment
 conservative as possible
o 1867-1870…Radical Reconstruction
 there are arguments that if Johnson was not so obstructionist we would
not have gotten so much done in Radical Reconstruction
o post-1870
 violence and resistance to the race movement
 rise in terrorism
 Republicans may have been abolitionists, but many were still racists
o 1876-1877…End of Reconstruction
 troops are removed from the South as a means for President to get
elected
 South is back of the hands who opposed Reconstruction to begin with
Judicial interpretation of reconstruction efforts
 Slaughterhouse Cases
 Civil Rights Cases
 Court offered a very narrow interpretation of the rights offered by the Reconstruction
Amendments
 The SC offered a very conflicted kind of analysis in its approach to the
Reconstruction Amendments
 Take away of judicial response to Reconstruction
o It appears as though the SC is going to offer a very narrow reading of the
rights under the CON as provided by the 13th and 14th Amendment
o States will be the primary guarantors of civil rights in the 19th century, but
states did not care too much about protecting the rights of newly emancipated
blacks
o “equal protection was reduced to merely slogan” – Bernard Shaw
o this created a moment of depression reducing the punch of transformations
produced by Reconstruction
o However, Strauder signified a case in which the punch was not reduced
 Strauder
The Reaction against reconstruction
 Paternalism couched in a rhetoric of inferiority planted a seed that grew into the
manifestation of blacks’ rights deprivation on grounds for racial inferiority
 Where are we along lines of judicial interpretation post-Reconstruction?
o The interpretation of the Reconstruction Amendments is narrowly construed
o But, it also includes hostile, patronizing rhetoric that harps on the slavery
precepts of the time
 RECONSTRUCTION IS OVER…TRANSITION TO THE NADIR PERIOD
 Plessy is the centerpiece for nadir period, the low period
o Race distinction v. race discrimination
o Expressive function of law
o Separate but equal
 Race distinction must be a reasonable one
o Whiteness as property
o Upside of Plessy majority
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The policy of equal but separate is recognized
While Plessy creates the pigmentocracy that perpetuates
oppression, it also gives the key to its undoing so long as the
segregated accommodations are shown to be unequal
o Harlan dissent
 Colorblind constitutionalism
Segregation regime…two concepts proving that segregation was not a better
policy than desegregation...
o Myth of autonomy
 Racial separation with whites running the show
o Lynching
 Lynching is the brook of fire that everyone must cross to
understand race relations in our culture
Giles
o Disenfranchisement of black voters
Many of the achievements of the Reconstruction period were undone in the
Nadir period because of both violence and judicial interpretation
What is the state of race at this time?
o The problem is a jurisprudential one
 Classical legal jurisprudence (where we are in the 19th century)
 Legal realism…shift in the jurisprudence in the 20th century…
Race and second reconstruction: a legal realist victory?
 …What accounts for this shift in race relations and jurisprudence?...Second
Reconstruction
o immigration, migration, professional legal reformers, WWI and II, national
identity, intellectual struggles, social events
 Buchanan
 Legal realism…using law as an instrument to produce social outcomes
o It was good that we took the classical approach in Buchanan because social
norms did not push for racial equality and thus legal realism would not have
produced a positive outcome at the time
 Smith
o Piercing public/private distinction
o Remarkable transition in Shelly and Smith
 Shelley
o The SC explodes the private v. public distinction
o You cannot square Shelley with the old constitutional order
 This constitutional order acts as an instrument for the Court to
produce explicit policy determinations
 A move away from formalism
 Recap
o Legal realism opens up argumentative possibilities
o Collapsing of public/private distinction and collapsing of the private sphere
o Changes in American society through immigration and migration
o War
 WWI, WWII, Cold War
o Athletics
 Integration of baseball
o National identity
Foundation of modern era race relations
 Brown I
o Moving toward a more legal realist approach
o Landmark decision, but purports to deal with “separate but equal” only within
the context of public education
o The reliance on social science is critical to the decision
o What was wrong with the Brown decision?
o Principle: Segregation runs foul of the equal protection clause in so far as
it disallows blacks’ participation in the democratic process
o We know that Brown is correct because it lacks principle grounding
 Bolling
o Current context trumps historical context
 Brown II
 Cooper
o SC holds that we interpret the CON and you follow
 Recap
o Brown brought about a massive shift in…
 The legitimacy of segregation policy
 Jurisprudence
 Move to legal realism from a more classical approach
o Critiques of Brown
 People question the constitutional grounding of the legal analysis in
Brown
 Use of dubious social science studies in the opinion
 Studies inferring feelings of inferiority amongst blacks
o The impact of Brown was not nearly as dramatic as we would have liked in
terms of the integration of public education
Foundation of the modern era of race relations
 The reoccurring pattern of white superiority and black inferiority remain intact
after Brown
 King
o Distinguishing between just and unjust laws
 Peterson
o Is there state action everywhere?
 Remember Shelly. Peterson highlights the public/private distinction
put forth in Shelly.
 Outlaw of segregation in public places is solidified in the Civil Rights
Act of 1964.
o Peterson enlarged the public sphere and shrunk the private sphere
 Civil Rights Act 1964
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Heart of Atlanta
o Commerce Clause argument
Katzenbach
o Congress has grounds to invalidate voting laws because the 15th is selfexecuting on its face, and Congress has the authority to act specifically as
put forth in
The Second Reconstruction…The Civil Rights Era
o Bracey views its impact as seminal
 There are a number of real gains worth highlighting
o People disagree and believe that the Civil Rights Movement wasn’t that
big of a deal
 Civil rights movement came at the expense of the legal process and
legal system
 Some people say that there really hasn’t been a whole lot of change
accomplished by the Civil Rights Movement
 Norms of privilege remain in a system that is purportedly race neutral
on its face
RACE AND PERSONAL IDENTITY
What is “race?”
 In the legal spectrum, race is at best inconsistently defined and at worst
completely incoherent
o Race is radically underconceptualized
 Before we were concerned with however government ruled on issues of race, where
now we are more thoroughly involved in individuals’ self-determination of their race
in cohesion with the law
 “the absurdity of race”
 How is race viewed within the law?
o Race may have biological aspects
o Race may have sociopolitical aspects
 If law is going to treat people differently on the basis of race, then the law must
find some kind of cognizable racial classification system…
Early efforts to litigate racial categories
 Legal interpretation takes place within a field of pain and death
 The discretion of judges to assign racial classifications proved expansive (in the case
of the Indians) and pernicious (in the case of the Chinese)
What about the “others?” The pitfalls and possibilities of a multiracial census
 Some argue that race is such an absurd construct that it should be abandoned
 Should we do away with racial categories?
Early efforts to delineate who exactly may become part of “we the people”
 Progressive racial movements will always be deemed as radical when viewed in
juxtaposition with constitutional history; however, in reality, it is only radical to
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maintain the slave-holding, inferiority-perpetuating status quo when juxtaposed
with the CON, a document premised on liberty for all
DS subverts the promise of America as an open political community
o Community began to be defined be exclusion rather than inclusion
o Race is to be explicitly discussed and considered in the American political
community
o The struggle for citizenship became nothing more than a race war
…thus, as a society with politics so deeply rooted in race, it is not so hard to
understood why we can’t shake they notion of race now
Taney evokes concepts of community in Dred Scott
o Taney concludes that Negroes should be excluded from the relevant political
community i.e. citizenships
 No citizenship, no subject matter jurisdiction
Taney’s originalist argument is the cement that holds this entire opinion together
Marshall says we should not be so quick to celebrate the CON because it is not
conducive to equality
o Marshall wants to promote the idea of a living CON
o By subscribing to Taney’s view of the CON, Marshall created a problem in
the civil rights movement in that it portrays the movement as radical and
innovative rather than merely making good on constitutional rights suppressed
by radical and innovative oppression
Stoddard calls for the inhibition of the great flux of immigrants
o Isolationist
o Stoddard focuses most of his fear and consequent oppression on Asians
Three available criteria for racial determination…either way the Court is going
to rule against you
o (1) scientific/ethnographic
o (2) framers’ perspective
o (3) popular conception
two ways of maintaining racially exclusionary preferences
o naturalization and inhibition of immigration
THIRD MODULE: APPROACHES TO RACIAL REGULATION
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Four paradigms concerned with thinking about race
o Free choice/no government intrusion (minimal intrusion)….antidiscrimination (where we are today)…pluralism/diversity (identity
politics regime…some parts of our current regime is here)…critical race
theory (maximal intrusion; deep consciousness; maybe some tax and
transfer; deeply nihilistic…maximal government intrusion is highly
unlikely)
 As we move up the continuum, there is more government intrusion
“LAISSEZ FAIRE”/MINIMAL GOVERNMENT INTRUSION
 Friedman
o two important contributions
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(1) racial discrimination is analogous to a taste
(2) Market discipline will get rid of race prejudice
Bork
o Unjust to impose morality through law
o When it comes to racial discrimination, the problem is that not everybody
believes it is immoral
Epstein
o Law and economics approach
Recap
o Attractions of this libertarian model
 Clear architecture
 Not a lot of bureaucracy
 Racial discrimination can be understood as a rational decision
 Racial discrimination perceived and understood as a taste
 Consistent with overarching capitalist regime
 Reliance on market discipline to correct racial injustice
 With minimum government intrusion, there becomes an incentive for
self-improvement
 Whites…maximization of efficiency through hiring
 Minorities…make themselves more contractible
 Based upon an ideology of human decency; anti-government intrusion
 People will figure out the right thing
o At least by searching for the greatest degree of
efficiency
o Criticisms of this libertarian model
 It seems odd to treat racial discrimination as a mere taste
 It seems to have more effects
o It is about social structuring and repositioning people at
the bottom of this social structure
 Seems to treat racial discrimination as rational/legitimate
 Until people of color have made themselves worthy of being
contracted with
 Sense of market failure within the context of racial discrimination
 People have been more than happy to discriminate and bear the
heavy cost of doing so
 Where there is market failure, there is a need for intervention
 Transformation would not be progressive
 Transformation would be gradual was seen as a plus in the
model
 The incentive for self-improvement can be understood as creating a
pre-condition for futility
 There is nothing one can do, so might as well give up and
accept disenfranchisement
 Lacks any moral condemnation of racial discrimination
o Criticisms seem to outweigh the upsides for the freedom to
contract/minimal government intrusion model
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Big critiques
 No real moral condemnation of racial discrimination
o Moral imperative
 Lack of a sense of urgency
o However, there is still space for elites to buy out of the new morality that
opposes racial discrimination
 E.g., social clubs still discriminate
THE ANTIDISCRIMINATION MODEL
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How do the notions of moral imperative and urgency play out under this model?
King
o Moral imperative
o King criticizes gradualism
 Urgency along with a moral imperative
 This produces the emergence of the antidiscrimination
model…which is where we are today
Anti-discrimination model
 Model anchored in the antidiscrimination principle
 What is the antidiscrimination principle?
o (1) The principle that disfavors classifications and other decisions and
practices based on race or ethnic origins
 General formulation of antidiscrimination principle
 Bradford Reynolds
 Would prohibit even benign race distinctions
o (2) The principle that disfavors classifications and other decisions and
practices against racial minorities…racial distinctions that don’t disfavor
racial minorities remain operative
 Narrow formulation of antidiscrimination principle
 Brest
 Allows for affirmative action and other benign race distinctions
o Need to be interrogated, but not presumptively
invalid
 Bayard Rustin
o Focused on a broad antidiscrimination principle coupled with a radical
redistribution of wealth on the basis of class
Recap
 Two competing formulations of the AP…both laying claim to antidiscrimination
law
o Broad…race neutral
o Narrow…frown upon decisions harming racial minorities
 Certain kinds of race-based decision making is bad
 Attractions of antidiscrimination model
o (1) Acknowledges problematic features of racial discrimination
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Racial discrimination is more than just a taste, it produces real harm,
stigma, etc.
 Racial distinctions are morally wrong
o (2) failure of American society to live up to its creed of freedom for all
o (3) it imagines a world at which race is no longer significant
 race-based decisions are presumptively invalid
 more inclined to the broad interpretation
o (4) antidiscrimination model is proactive, interventionist, and urgent
 status quo usually, but not always, harms racial minorities…thus,
intervention is necessary
Shortcomings
o (1) internally conflicted
 We continually fight whether affirmative action is part of the
antidiscrimination model is or is merely a moment of deviance
o (2) we still have difficult sorting out which race distinctions are
beneficial/benign and which are burdensome
o (3) how we come up with a process or doctrine to help us identify race
discrimination and provide a legal remedy
 race discrimination/distinction is not always obvious
 intent is hard to decipher
 some programs have racially disadvantageous effects with no
racially charged motives
Three takes (match up to cases)
 (1) race neutral policy with discriminatory effects and what the remedy should be in
the statutory context (Title VII)
o Griggs
 Disparate impact model
 SC holds you can prove and establish wrongful discrimination and
recover under Title VII without showing discriminatory motive
 (2) race neutral policy with discriminatory effects and what the remedy should be
available in the constitutional context (Due Process Clause)
o Davis
 Disparate impact theory is valid under Title VII, but the standard is
different if the claim is coming under the CON
 (3) explicit racial classifications with discriminatory effects in the constitutional
contexts (Due Process Clause)
o Adarand
 Strict scrutiny
Recap
 In all, we have a system that disfavors almost all race distinctions, with a few
exceptions
 Moving forward…today…
o Critique of antidiscrimination model
o Look to an alternative to the antidiscrimination model…pluralism/diversity
model
Freeman
 Victim and perpetrator
 Nice segue into pluralism/diversity model from antidiscrimination model
THE PLURALISM/DIVERSITY MODEL
 Because color blindness is impossible to achieve, and because of the history
bound up in all this, we need to develop a model associated with the value in
group identity and the value in recognizing group identity
 P/D model grew out of feelings of AD model’s (the dominant model) insufficiency
o Did too little to uproot racial oppression
 Did not acknowledge historical racial oppression and thus provide an
adequate remedy
 Focus on the perpetrator
o Color blindness was doing violence to non-majoritarian identity
 The idea was promote a model that valued group identities
o Epistemological claim
o Perceptual claim
o Identity claim
 What would this look like?
o Politics of modernization
 Questioning of institutions
o Rejection of the assimilation norm, acceptance of pluralistic association (with
a premium placed on diversity and individual identity) within a democratic
structure
 Potential pitfalls
o Those associated with groupism
 Stereotyping, hyper fragmentation of identity
o tensions within the constitutional order
o closing ranks mentality
 the very process creates balkanization rather than overcoming
identities to produce greater understanding
 This model is probably unlikely because it would call for a complete constitutional
restructuring, which is unlikely
o However, piecemeal approach is feasible…Metro
 Application of intermediate scrutiny
 The value of racial identity is important for CRT…
CRITICAL RACE THEORY
 Bracey’s definition of CRT
o Intellectual movement of colored left legal scholars whose work challenges
the ways in which race and racial power operate in American legal culture and
American society in general
o Challenging the racial order
 Themes
o Un/subconscious racism
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o Racism is understood to be an ingrained feature in the American
landscape…pervasive racism
 Its not aberrant, its normal
 The power of racial discrimination may lie more so in its subtly, then
in its more overt form
 We are powerless to police the subtle, more frequent, racism
expressions of racism
o Desire to have a greater understanding of how this subtle, normal racism
works in American society
Methodologically…no real clear path
Critical Legal Studies
CRT and CLS
CRT
Foundations
 Cultural meaning test
 Microaggressions
Recap
 Operative definition of CRT
o A movement mainly by left liberal scholars, mostly of color, whose work
seeks to challenge how race and racism are portrayed in American culture
o Methodologically…all over the map
o CR theorist seek to critique the master narrative
o Racism is not an aberration in American society, it is normal
o CRT is an intervention
 Law is constructing race (it is a social construction) and racism
and we force people to live under a normatively loaded legal
system
o CRT seek to demystify and reveal certain aspects of racial subordination
 Law is neutral with regards to race
o Programmatic aspect of CRT
 They believe in the importance of rights
 Part of their solution is to change legal structure so as to have rights
recognized more fully
 However, CRT mainly seeks to provide a discursive solution
 By changing our language/discourse we can change our culture
 Crenshaw reading
o Distinguishing CLS and CRS
 Lawrence reading
o CRT can change how we understand certain doctrine, in this case equal
protection doctrine
o Cultural meaning test
 A discursive strategy
 Davis reading
o Microaggressions
o Not all racism appears in the stark fashion in which we assume it to appear
o most acts of racism are very minor…microaggressions
 microaggressions are cloaked in ambiguity
 thus, minorities struggle to decipher whether the insult is
racially biased
o harm…both insult and exhaustion that comes from
hypervigilance
Methodology – Autobiography
 CR theorists are concerned with getting their voices heard
o The narrative in and out itself is the solution
 Chang
o Myth of the model minority
 CRT is in cahoots with legal realism (and nearly everyone has bought into the
LR movement by now)
 Montoya
o Masking
Methodology – Fictional Narrative
 Space Traders
o Black people are both expendable and valuable
o Bell seems to think that whites have never been fundamentally committed to
racial inclusion
o Civil rights gains are often result of interests convergences
o Racial politics can trump rational thought in all sorts of areas
o Religion references
o Democracy seems very questionable in a society riddled with racism
o No one can be objective when it becomes to matters of race
o Black citizenship is “sanctuary,” rather than equal
o Golightly exchange with presidential cabinet is an example of
microaggression
o Larger legal microaggression…SC did not stop referendum allowing the trade
to go through
o Golightly’s “trickster” strategy in the final stages
 Bell is saying trying to argue morality, that racism is morally wrong is
not the best strategy…it is better to outsmart, to lie and deceive, rather
than rely on the good will of whites…BIG POINT
o Golightly’s wife…no matter what happens it will be bad…profoundly
nihilistic…we are the responses
 Montoya…we must speak up
 Bell…we struggle against racism not as a matter of morality, but as a
matter of survival…BIG POINT
 Farber and Sherry
o Critics of CRT
Beyond the black/white paradigm
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Latinos
Multicultural empowerment
o Prevent “fighting over crumbs”
Indians
What else is there for law to do according to CRT?...BIG QUESTION
o Maybe we are just stuck
FOURTH MODULE – RACE, SUSPICION, AND DISCRIMINATION
THE LAW OF RACIAL PROFILING
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Racial profiling focuses on disparate law enforcement
o Based on notions that people of color commit a disparate proportion of
offenses
Law abiding racial minorities have to pay for the fear created by criminals with whom
they are categorized
This profiling angers law-abiding minorities, who then become angry with
government agents…law enforcement officials then perceive this as a failure to
accept responsibility, and then they police racial minorities more stringently
Korematsu
When it comes to racial profiling…
o It is about group rights rather than individual rights
o Based on some kind of threat
o Hinges on the distinction between criminal and non-criminal in a
particular group and lumping both sub-groups together because of the
inability to distinguish
 Weaver
 Gates situation
 AZ immigration law
Broad picture
 No regulation…current regime (4th)…Anti-discrimination (14th)…absolute
prohibition
o Are there alternative to the current regime? …
o No regulation
 Police have full discretion to use race and even race alone
 Err on the side of law enforcement
 When in doubt, empower the officer
o Current regime
 Use race among other factors
o AD
 When state uses race for purposes of law enforcement it must provide
a compelling justification for doing so and it must be narrowly tailored
 Subject police enforcement to strict scrutiny
 Not the military kind as in Korematsu
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Strict scrutiny creates a strong presumption against the use of race
 9 out of 10 times the use of race will be disallowed
o Absolute prohibition
 Absolute prohibition on the use of race
Recap
 Historical look at racial discrimination
 Race can be used as an element of criminal suspicion, particularly in times of war
(WW II) or crisis (war on drugs; immigration)
o Using race as a factor among factors
 Pretext stops are okay
o But see, recent injunction on pretext stops in AZ
 Will ultimately get resolved by allowing for pretext stops
 Alternatives to racial discrimination
o No regulation…4th – reasonableness (current system)…14th –
antidiscrimination…absolute prohibition
 No regulation
 4th…race can be used so long as it is used reasonably rather than to
harass
 14th…race distinctions should trigger some degree of strict scrutiny
 absolute prohibition on the use of race
 What system should we have?
o No regulation…no
o Absolute prohibition…?
 “sophisticated bigots” would continue to profile using characteristics
that are correlated to race
 e.g., baggy pants
 Why racial profiling is good? And why today’s standard is okay.
o Weaver
 “The facts are not to be ignored simply because they are
unpleasant”
 The circumstances are such that racial profiling probably is reasonable
given the lay of criminal conduct in the world
o Expense
 You want your law enforcement officials to act affirmatively
 More detailed information is expensive
 If race is a decent proxy, then why not rely upon it
o Ease of administrability
 Easy to administer
 Hard to determine if someone has criminal intentions, but use of race
by a police officer makes it easier for him to do his job
o Result
 The reality is is that racial profiling yields contraband
 E.g., drugs, guns, immigrants
 Success reinforces the current regime
o Minimizing the cost of oversight
 Administrative review of the police is a costly endeavor
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To reduce the cost of oversight, let’s reduce the amount of
things that we police the police about
Arguments against racial discrimination? … in defense of a more stringent
constraint against law officials (14th Amendment)
o A heightened degree of scrutiny would help us smoke us folks who are not
sophisticated in their racial basis
o Current reinforces the salience of the race line
 Aggravating factors and mitigating factors may balance out in some
situations, and thus race may become the decisive factor in stops,
arrests, etc.
 This reinforces the salience of the race line
o Prudential concern…prevailing regime of racial profiling is inconsistent
with the antidiscrimination model that serves as the prevailing legal order
 We should be skeptical in the racial profiling-law enforcement context
if we are in other contexts like affirmative action, etc.
 If racial profiling is viewed as a tax on minorities, then
affirmative action should be viewed as a tax on whites
o Cumulative disadvantage
 Shifts the costs of policy on historically disadvantaged people
 Historical racial subordination…disadvantage
 Contemporary racial order subordination…secondary level
disadvantage
o Racial profiling engenders resentment for the people it affects
disproportionately
 Race-based policing leads certain communities to fear the police and
thus leads to less cooperation with law enforcement officials, which
means less effective law enforcement, which means a lower degree of
social welfare.
o Targeted racial profiling stigmatizes an entire minority group
 Racial profiling feeds into the stigma that then permeates further
into reality
THE POST-SEPTEMBER 11TH ARAB-AMERICAN EXPERIENCE
 Articles
o All written about two months after 9/11
 After initial shock of the event and at the forefront of policy analysis
o General view of support articulated for racial profiling
 A begrudgeoned acceptance of racial profiling
o Should we be profiling Arab American, Muslim Americans for the safety
of the nation?
 Price of the ticket/citizenship argument again
 Analogy to the Japanese internment situation
o Does racial profiling make you feel safer?
LINGUISTIC PROFILING
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Linguistic profiling…Racial and ethnic discrimination that is produced in response
to language that connotes difference
o Reacting to accents or words (rather than physiology) as proxies
These articles
o Turn in legal academy from theory to empirical studies
 Crystallization of abstract theory
FIFTH MODULE – AFFIRMATIVE ACTION
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We will consider affirmative action within both legal and normative contexts
Remember: SC adopts the broad form of the antidiscrimination model
o There is no big categorical exception for benign racial distinctions
 Except there seems to be an exemption for racial profiling
o So-called benign race distinctions will be treated as so-called malign race
distinctions
 This, affirmative action (AA) is impermissible and unconstitutional
The SC has historically treated AA with a greater degree of latitude
o AA has been treated as a deviant system within the antidiscrimination
model
 It is does not meet the mandate of the antidiscrimination model
Issues
o (1) How can we situate a deviant system within our current framework?
 Deviant as in different…you are able to use race without as much
scrutiny
 Much like racial profiling
o (2) Is AA good or bad?
What the fuss over AA about?...pressure points…
o We fetishize individualism
 AA allows for treatment of individuals as members of a group rather
than as individuals
o Our abiding faith in the myth of meritocracy
 AA runs against this in that it seems to give a benefit/windfall to
someone who is undeserving
o Fears of stigma of inadequacy
 Stigmatization of beneficiaries as inadequate
Why don’t these pressure points generate the same response in…
o Legacy admits
o Athletes on scholarships
o Geographic diversity
o ...there is something unique about race preferences
LAW SCHOOLS AND LAW FIRMS
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Grutter
Ross article
o Rhetoric of innocence
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Sander article
SIXTH MODULE – RACE, LAW, AND INTIMATE ASSOCIATION
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Today will be the “loosest of meditations”
Negro chattel slavery was rooted in this notion of Negro inferiority
o Rhetoric of inferiority and unassimilability
 Also can be applied to treatment of Indians and Asian Americans
Today, rhetoric of inferiority and unassimilability is largely passé (except for
maybe with regards to illegal immigrants)
Difference between personal and political lives
o Juxtaposition of public and private politics
o If most Americans derive a sense of comfort from racially segregated space,
are we all racists?
 Are we all carrying the baggage of racism?
o How deep do our politics – our progressive, integrated politics – run? Do our
politics have to extend into areas of intimate association?
o Should the government be able to reach into the personal lives of men
and women in order to promote the notion of racial progress?
 E.g., racial discrimination when it comes to mate selection, child
adoption, etc.
o Can we imagine a world where our progressive racial politics run to the bone?
What’s all the fuss about when it comes to interracial intimacy?
o Sensitivity that comes from the history/mythology of interracial intimacy
 The imagery of black men raping white women
o Its about the fact that we deified “white womanhood” and view minorities are
“tainted”
 Tracking notions of white supremacy
 racial purity
o Ego issues
 Coupling purity with sexual dominance
 White men have historically had to maintain control of white
women’s’ bodies
In some ways, interracial intimacy is the first and final frontier of American race
relations
o It is the most basic part of being, and if you don’t get it right it has all kinds of
pervasive ramifications
 However, even though interracial intimacy encapsulates interracial
interactions at its most basic form, it is also very sticky to navigate
o The notion of black men who marry white women buying into the concept of
white supremacy
o The threat of a mixed race child as “uncategorizable”
 “the tragic mulatto”
Why criminalize intimate association?
o the law reifies moral stances
o the expressive function of law
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law that is not generated to create greater compliance of what is
already bought into morally, but rather using law as a means of
singling an expression of our public morality
Why does the application of the antidiscrimination principle stop at intimate
association?
o Hypothetically, what if we applied strict scrutiny to interracial dating?
 Policing would be administratively cumbersome
 Also runs up against our freedom of association, liberty, and freedom
of expression
 Sometimes the people we choose to be intimate with acts as an
expression of our beliefs
ANTI-MISCEGENATION
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Loving
RACE AND INTIMACY IN THE MODERN ERA
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Peete article
Kennedy article
TRANSRACIAL ADOPTION
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Howe article
REVIEW
Review
 Both Brest and Reynolds cite King
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Pluralism/diversity…identity politics model…deepen democracy via pluralistic
association
CRT…doesn’t have the same program of democratic engagement…some of CRT
does not have democratic program because it is so deeply nihilistic, it is more so
discursive and geared toward raising consciousness
o Racism is found to be permanent
 Bell…engage in way of life geared toward survival because you have
no other choice
However, both P/D and CRT believe you can empower racial identities
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Disparate impact theory is still good within the context of statutory relief, DI is not
constitutional law
o Griggs is still good law
o Under the CON, you need to show both intent and impact
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Using the 13th Amendment rather than the 14th Amendment
o Whether Congress is authorized to use the 13th in public accommodations
situations
 This would be running the slavery (badge of slavery) argument into
the ground
o However, doesn’t it seem that segregationist policies perpetuates these badges
of slavery, and because the 13th is self-enforcing Congress would be
authorized to act
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Legal interpretation occurs in a field of pain and death
Ethnic fungibility