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RACE IN THE 21ST CENTURY: EQUALITY THROUGH LAW?, 64 Tul. L. Rev. 1515

64 Tul. L. Rev. 1515 Tulane Law Review June, 1990 Symposium: The United States Supreme Court's 1988 Term Civil Rights Cases RACE IN THE 21ST CENTURY: EQUALITY THROUGH LAW? Linda S. Greene a Copyright 1990 by the Tulane Law Review Association; Linda S. Greene The burden of proof is always upon him. For the interpretation and realization of these rights he is forced to appeal to the Supreme Court. Thus the Negro has been compelled to substitute the complicated, arduous and expensive processes of litigation for the ballot box. What other groups are able to do for themselves, the Negro hopes the judiciary to do for him. There is more than ample evidence in the decisions of the supreme tribunal of the land on questions involving the rights of the Negro to disprove the possibility of any general relief from this quarter.

Dr. Ralph Bunche, 1934. 1 I. INTRODUCTION During 1989 the Supreme Court decided several important civil rights cases 2 to which civil rights leaders responded with dismay. 3 All these decisions concerned discrimination in *1516 employment and addressed a wide range of issues: whether white employees collaterally may attack court-approved consent decrees, 4 the proof requirements in Griggs v. Duke Power 5 disparate-impact cases, 6 the applicability of Reconstruction era civil rights statutes to private discrimination, 7 as well as the constitutionality of a local government program requiring contractors to employ minority subcontractors. 8 In each of these cases, the majority of the Court employed formalistic and hypertechnical reasoning to limit the scope of redress for the racial inequities plaguing racial minority groups. 9 In ingenious ways, these decisions *1517 explode the post-Brown 10 assumptions about the existence of racial discrimination, the meaning and importance of racial discrimination, and the role of the judiciary in the redress of racial discrimination. These decisions contribute to the development of a legal structure in which racial inequities may be immune from legal redress and, perhaps more importantly, in which racial discrimination plausibly may be denied. In short, the 1989 Supreme Court decisions create barriers to changes in the racial status quo. The civil rights decisions of the 1989 Term force us to refocus on a question presented time and time again, before and after Dred Scott: 11 whether meaningful equality can be obtained for African-Americans through law. I will discuss these decisions by elaborating on several themes embodied in these decisions. These themes include formalism and equality, the tendency to interpret statutes rigidly, narrowly, and hypertechnically, thereby stripping them of transformative content; politics and equality, the tendency to reduce all questions of racial equality to political questions, thereby stripping constitutional legitimacy from racial civil rights; and the rights of whites and equality, the tendency to give legal legitimacy to the efforts of whites, who historically have benefited from racism, to maintain the racial status quo.

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RACE IN THE 21ST CENTURY: EQUALITY THROUGH LAW?, 64 Tul. L. Rev. 1515

II. FORMALISM AND EQUALITY A. Introduction One theme embodied in the 1989 civil rights cases is formalism, the tendency to approach the task of interpretation as an enterprise unaffected by either contextual reality or likely result. This tendency is particularly obvious in Wards Cove Packing Co. v. Atonio 12 and Patterson v. McLean Credit Union. 13 In these cases, the Supreme Court majority uses language that preserves the appearance of proper concern for achieving equality. Yet, in both, the reasoning seems indifferent to reality and indifferent to *1518 the impact of the decisions on the historical victims of racial discrimination.

B. Wards Cove Packing Co. v. Atonio The Wards Cove 14 decision may have the greatest impact on equality law because of the sweeping changes it arguably makes in employment discrimination law. Wards Cove does not follow the Griggs v. Duke Power 15 tradition of ferreting out policies that perpetuate segregation in employment. Instead, Wards Cove treats segregative polices as socially neutral and cautions courts to refrain from interfering with employment policies. This result is accomplished through the use of an arid and often surreal analysis of statistics, as well as through a casual disregard of twenty years of employment discrimination law. In Wards Cove, the Supreme Court considered whether a cannery company's maintenance of a segregated work force violated Title VII. The record revealed that Wards Cove hired season after seasonpredominantly white workers in its skilled positions and predominantly non-white (Alaskan natives) workers in its unskilled positions. 16 Non-white cannery workers claimed that the employer's method of selecting employees created an illegally segregated work force. 17 The non-white workers also attacked the employer's maintenance of racially segregated housing and dining facilities. 18 Though the court below considered both disparate-impact and disparate-treatment claims, the Supreme Court granted certiorari for the purpose of addressing these disputed questions of the proper application of Title VII's disparate-impact theory of liability. 19 A majority of the Supreme Court decided that the lower court's decision had accorded too much weight to statistics that had demonstrated the segregated nature of the employer's work force. 20 Justice White, in whose opinion Chief Justice Rehnquist and Justices O'Connor, Scalia, and Kennedy joined, accused the Ninth Circuit of giving too much weight to statistics and to *1519 racial imbalance. 21 The Court rejected the statistical comparison of the predominantly white noncannery work force to the predominantly non-white cannery work force: T he cannery work force in no way reflected the pool of qualified job applicants' or the qualified population in the labor force. 22 Justice White said that Title VII requires a proper comparison between the racial composition of the qualified persons in the labor market and the persons holding at-issue jobs.'' 23 According to Justice White, the racial disparities in skilled positions were just as likely to be due to a dearth of qualified nonwhite applicants (for reasons that are not petitioners' fault). 24 Though this reasoning implied that comparisons between the non-skilled cannery positions (predominantly held by non-whites) and the skilled noncannery positions (predominantly held by whites) might well have been considered appropriate, Justice White rejected this possibility: Racial imbalance in one segment of an employer's work force does not, without more, establish a prima facie case of disparate impact with respect to the selection of workers for the employer's other positions,

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even where workers for the different positions may have somewhat fungible skills (as is arguably the case for cannery and unskilled noncannery workers). 25 Justice White advised lower courts that this kind of statistical evidence may be ignored unless challengers show evidence of barriers to application, deterrence, or that the percentage of non-whites selected is significantly lower than that of non-whites applying. 26

It seems counterintuitive that the plantation-like segregation of Wards Cove can be maintained under Title VII, but Justice White said that the alternatives were unacceptable. According to Justice White, strict judicial scrutiny of work-place segregation would drive employers to adopt quotas. [A]ny employer who had a segment of his work force that wasfor some reason racially imbalanced, could be haled into court and forced to engage in the expensive and time-consuming *1520 task of defending the business necessity of the methods used to select the other members of his work force. The only practicable option for many employers will be to adopt racial quotas, insuring that no portion of his work force deviates in racial composition from other portions thereof . . . . 27 Thus, Justice White suggested that the Court's abhorrence for quotas and its reluctance to impose undue burdens on employers required the Court to give Wards Cove's statistics of segregation little weight.

These racial balance and employer burden considerations also may account for some of the questionable logic used to justify the irrelevance of Wards Cove's statistics. For instance, Justice White attempts to demonstrate the irrelevancy of Wards Cove's decision to hire only non-whites for cannery work and whites for noncannery work by suggesting that the company, at any moment, could cease to use the segregated union it had chosen to supply its cannery jobs with non-white workers. If Wards Cove did so, Justice White argues, the factual basis of the non-white workers' complaints about predominantly white noncannery jobs would disappear because the company could eliminate the segregated nature of its cannery work force overnight. 28 If the foregoing summary of Justice White's reasoning seems unintelligible as well as indifferent to the possibility that racism was embodied in Wards Cove's employment practices, his verbatim argument is even more so. 29 *1521 The Court gave no weight to the context in which these disparities occurred: one in which the employer exercised complete control over the work-force availability, for both cannery and noncannery work, by choosing where to recruit potential employees. Rather, the Court's logic seems driven by an important subtext: glaring racial segregation is more likely to be the result of the employer's innocence. Even if one suspends judgment and concedes the validity of such a principle, the plantation facts in Wards Cove suggest that innocence was the least likely explanation. If Justice White had written no more, Wards Cove could have been distinguished as a decision limited to the nuances, vagaries, and complexities of work-force statistical analyses. But his opinion also addressed the evidentiary burden employers must meet to justify and retain segregative employment policies. Justice White declared that employment practices that produce workplace segregation need not be essential or indispensible to the employer, 30 but merely need serve the legitimate employment goals of the employer. 31 Moreover, he also explained that the Ninth Circuit had erred in requiring that Wards Cove bear the burden of persuasion on the business justification for its segregative practices. 32 Justice White cited none of the Court's decisions that firmly had placed upon the employer the burden of proving the business necessity of segregative policies; 33 nor did he acknowledge that in the two decades since Griggs, courts, employers, and Title VII claimants have understood that upon proof of disparate impact, the burden of persuasion would shift to the employer. 34

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RACE IN THE 21ST CENTURY: EQUALITY THROUGH LAW?, 64 Tul. L. Rev. 1515

In two casual paragraphs, devoid of any discussion on the rationale for disparate-impact theory, Justice White may have rewritten the two most important principles in Title VII law. First, [t]he Act proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. 35 *1522 Second, to limit the extent to which employment policies create built in headwinds against protected groups, Congress has placed on the employer the burden of showing that any given requirement must have a manifest relationship to the employment in question. 36 Whether Wards Cove squarely overturns Griggs may be open to debate, but the reasoning in Wards Cove seriously undermines the policies of Title VII as articulated in Griggs. 37 Wards Cove treats workplace segregation as a neutral phenomenon free of negative connotation and illegal implication. While Griggs followed Brown's 38 aspiration to a society free of racial distinctions, Wards Cove rejects such aspirations as meddlesome to employers and tainted with the possibility of racial parity. After Wards Cove, Title VII remains, but it seems an empty shell where its content matters mostcases in which employment policies prevent whole groups not merely individuals from enjoying employment opportunities. Disparate-impact theory allowed the notion of equality to have palpable substantive content, not merely formal content, in a new era in which employers no longer advertise whites only but still manage to maintain and perpetuate workplace segregation. Disparate-impact theory embodied normative notions about the workplace environment, about the positive aspects of interracial association, 39 about the value of employment choices to individuals, about the potential of historically excluded groups to make greater contributions to American society, and about the risks we all incur when race and economic status are linked too closely. Wards Cove rejects all this in a decision formally cast in statistical analyses and evidentiary rules. More than a century ago, Justice Harlan warned that the Supreme Court was turning the precious rights so recently acquired by the freedmen into splendid baubles fit for no practical purpose. 40 Then he spoke of the Court's creative arguments that amounted to a refusal to give the same force and content to the Civil War amendments as the Court had given the slavery *1523 clauses of the Constitution. Justice Harlan saw his Court creating a legal structure in which consequences of slavery would linger and in which racism would flourish. Wards Cove suggests the development of a trend similar to that prophetically observed by Harlan. By treating segregative practices as neutral and by rejecting racial pluralism as a positive development, the Court is moving to limit the transformative possibilities of Title VII. If this trend continues, the Court will guarantee that the unfinished racial business of the twentieth century will be passed down to the next century.

C. Patterson v. McLean Credit Union Patterson v. McLean Credit Union 41 also employed formalistic reasoning to strip an equality statute of content and importance. In Patterson, the Court considered whether section 1981, 42 a Reconstruction era civil rights statute, applied to the racial discrimination and harassment a black female bank teller suffered after a credit union hired her. 43 Brenda Patterson's supervisor stared at her, assigned her cleaning duty, made racist remarks in her presence, and refused to train or promote her. 44 In Patterson, Justice Kennedy, joined by Chief Justice Rehnquist and Justices White, O'Connor, and Scalia, decided that the racial indignities suffered by Brenda Patterson were not actionable under section 1981. [N]one of the conduct which petitioner alleges as part of the racial harassment against her involves either a refusal to make a contract with her or the impairment of her ability to enforce her established contract rights. Rather, the conduct which petitioner labels as actionable racial harassment is postformation conduct by the employer relating to the terms and conditions of continuing employment. 45

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RACE IN THE 21ST CENTURY: EQUALITY THROUGH LAW?, 64 Tul. L. Rev. 1515

*1524 The Court concluded that the language of section 1981, all persons shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens, 46 does not include the right to be free from racial harassment in the performance of a contract. 47

Justice Kennedy used structural, semantic, and logical arguments to limit the scope of the statute. The crucial structural argument was his treatment of section 1981 as embodying two rights (rather than a bundle of rights flowing from the elimination of slave status): the right to make contracts and the right to enforce contracts. Justice Kennedy discussed these two rights separately. 48 He invoked the plain meaning talisman to limit the meaning of the word make to formation, refusal to enter into a contract, or offer ing to make a contract only on discriminatory terms. 49 [T]he right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discrminatory working conditions. Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and conditions of continuing employment . . . . 50

Justice Kennedy also relied upon the plain meaning approach to conclude that the words the same right . . . to enforce . . . contracts . . . as is enjoyed by white citizens 51 were irrelevant to the actual performance of a contract. 52 In this portion of the opinion, Justice Kennedy treated the word enforce as if it were self-explanatory, while explaining the word nonetheless. His search for authoritative support stopped with his rather curious citation of Justice White's dissent in Runyon v. McCrary, 53 the 1976 decision which held that section 1981 applied to private contracts. 54 *1525 Justice Kennedy also concluded that a limited interpretation of section 1981 was required because Title VII exists. 55 There is no attempt to suggest that Congress sought to repeal or limit section 1981 when it enacted, and subsequently amended, Title VII. Rather, Justice Kennedy simply suggests that matters involving performance and conditions of employment are matters more naturally governed . . . by Title VII 56 and that allowing these matters to be actionable under section 1981 would undermine the detailed and well-crafted procedures for conciliation and resolution of Title VII claims. 57 Thus, while Justice Kennedy scrupulously avoided the assertion that Congress intended to restrict section 1981 when it enacted Title VII, he nevertheless decided that Congress inclusion of the conciliation processes in Title VII may be read to suggest a preference for those processeshowever lengthyprior to the commencement of litigation. Justice Kennedy also used federalism arguments to limit the rights protected by section 1981. He asserted that endorsing more than minimal coverage would necessarily require the federalization of state contract law and remedies. 58 Justice Kennedy argued that because section 1981 covers all contracts, not just employment contracts, any contract breached because of racial animus would be actionable. In this manner, Justice Kennedy limited the scope of section 1981. 59 He combined federalism and floodgate arguments; as such, his opinion here is reminiscent of those of the nineteenth century that rejected, on federalism grounds, the notion that the national government ought to be primarily responsible for guaranteeing the rights of the freedmen or insuring meaningful equality. 60 Finally, Justice Kennedy rejected and labeled as bootstrap *1526 the argument that the racial harassment Brenda Patterson experienced after her contract was made suggested that her contract had not been made in a racially neutral manner.

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RACE IN THE 21ST CENTURY: EQUALITY THROUGH LAW?, 64 Tul. L. Rev. 1515

[T]he question under 1981 remains whether the employer, at the time of the formation of the contract, in fact intentionally refused to enter into a contract with the employee on racially neutral terms . . . . We think it clear that the conduct challenged by petitioner relates not to her employer's refusal to enter into a contract with her, but rather to the conditions of her employment. 61

One striking aspect of Justice Kennedy's opinion was his failure to address the context in which section 1981 was passed and the intent and values that the Thirty-Ninth Congress embodied in that statute. This legislative history was briefly reviewed by Justice Brennan, who dissented (with Justices Marshall and Blackmun) from the Court's decision to exclude claims of racial harassment from section 1981. 62 Justice Brennan noted that section 1981 grew out of Congress realization that former masters and other employers were hiring blacks and then treating them as if the institution of slavery had never been abolished. 63 Justice Brennan noted that whippings and the meting out of harsher punishments to black employees were among the practices brought to the attention of the ThirtyNinth Congress. In short, Justice Brennan said that the Thirty-Ninth Congress had observed the recreation of slave conditions of employment even where the relations between employers and laborers had been fixed by contract. 64 A cursory review of the state legislation passed immediately after emancipation provides some insight into how the dream of emancipation became a nightmare for many former slaves. The [state] legislation in regard to freedmen seemed to have for its object the perpetuation of the spirit of slavery after its body had been decently buried. 65 A Mississippi law passed in 1865 permitted former masters to obtain the service of their former slaves who were unemployed and permitted the former masters to *1527 administer corporal punishment. 66 Another 1865 Mississippi law provided that Negroes who left their jobs without good cause before the end of their contracts would forfeit all wages. 67 An 1865 South Carolina statute declared that a ll persons of color who make contracts for service or labor shall be known as servants, and those with whom they contract as masters. 68 These are a few of the laws that attempted to dictate the relationships between white employers and the freedmen after contracts had been made. In addition to these statutes, historians note that despite the recent guarantee of emancipation, blacks were subjected to violence when they attempted to act as free men in their contractual relations. Freedmen were assaulted and murdered for attempting to leave plantations, disputing contract settlements, not laboring in the manner desired by their employers, attempting to buy or rent land, and resisting whipping. One black who refused to be bound and whipped . . . was shot dead by his employer, a prominant Texas lawyer. 69

When the Thirty-Ninth Congress acted to protect the rights of blacks, the horrors of the post-emancipation period did not allow Congress an escape into the distinctions between formation, enforcement, and performance Justice Kennedy found so intriguing. The issue in 1866 was how to give to blacks what they had been denied since 1619: the dignity and sanctity of contract without its antithesis, the degradation of slavery. No phrase could have better summed up Congress intent to break with the past than the same rights as whites. But Justice Kennedy ignored this history. It is not surprising, then, that Justice Kennedy's opinion does not dare venture into the nineteenth century. Had it done so, he would have had to acknowledge that harassment, intimidation, verbal abuse, subjugation, threats of violence, and violence were the conditions of the slave experience. He would also have had to note that after emancipation, and despite some protective laws, former slave masters continued to act as if the *1528 master-slave relation had never been dissolved. History shows that the immediate problem was not reluctance to contract in the most limited sense of the word; there was as much work to be done after the end of slavery as before. Rather, what the former slave masters resisted was treating the freedmen as equal persons entitled to the respect accorded whites throughout the course of the contractual relationship. These masters insisted on

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RACE IN THE 21ST CENTURY: EQUALITY THROUGH LAW?, 64 Tul. L. Rev. 1515

using the same violence, intimidation, and harassment they had used with impunity before emancipation. In 1866, if having the same right as whites to make and enforce a contract meant anything, it meant the right to be free from slavery conditions during the entire scope of the contractual relationship. Justice Kennedy's arguments were based on semantics and logical abstractions devoid of nineteenth- and twentieth-century realities. According to Justice Kennedy's reasoning, as long as a black is permitted to agree to work, the racism that ensues is not a denial of the right to make and enforce a contract. If the employer fails to warn that he expects sexual favors from his black female employee and then asks for them, there is no relief under section 1981. If an employer puts the black employees out of the sight of customers, refers to them as n______ in front of coworkers and customers alike, there is no relief under section 1981. If an employer inflicts corporal punishment, there is no relief either. 70 None of this, according to Justice Kennedy, concerns the right to make and enforce a contract. At the turn of the twenty-first century, 120 years after the official end of slavery, how unseemly for America and how tragic for black Americans that civil rights advocates must petition Congress to provide immediate and effective judicial relief in racial harassment cases. 71 But, as the historian Foner suggests, our racial past is prologue: From the enforcement of the rights of citizens to the stubborn problems of economic and racial justice, the issues central to Reconstruction are as old as the American Republic, and as contemporary as the inequalities *1529 that still afflict our society. 72

III. POLITICS AND EQUALITY Several of the 1989 decisions have a clear political dimension. Wards Cove and Patterson are statutory interpretation decisions that may be overruled with congressional legislation; this process offers the advantage of politically legitimizing the aspiration for meaningful equality, yet does not avoid the danger of having the enjoyment of rights depend upon shifting majorities. Martin v. Wilks 73 has an interesting political dimension as well. By permitting unlimited collateral attacks by whites on consent decrees embodying job protection for blacks, the Court has limited the ability of black constituents and black elected officials to use political clout effectively to increase job opportunities for blacks. City of Richmond v. J.A. Croson Co. 74 illustrates the complex relationship of equality to the political process. On the one hand, Croson continues a tradition of conditioning the enjoyment of meaningful equality on political process outcomes by arguably requiring political entities to re-authorize affirmative action programs that courts previously have rendered suspect. On the other hand, Croson may bring to the foreground suggestions in previous decisions that the opportunities for securing racial equality in the political process may be limited. In Croson, the Court decided the constitutionality of the Richmond, Virginia, Minority Business Utilization Plan, which required prime contractors to set aside at least 30% of its sub-contracting dollars for minority firms. 75 The plan had been adopted by the Richmond City Council after a hearing that considered testimony from both the public and public officials, a study which showed that, though Richmond's population was 50% black, only .67% of the city's prime construction contracts had gone to blacks, and evidence showing that many contractors' associations had no blacks among their membership. 76 Justice O'Connor's opinion said that the Richmond plan did not satisfy the strict scrutiny test imposed by the equal protection clause. 77 Justice O'Connor wrote that the Court must determine *1530 whether the plan remedied identified discrimination rather than societal discrimination. 78 She rejected the City Council's assertion that the paucity of minority contractors was due to racial discrimination in the Richmond construction industry. 79 Because Justice O'Connor concluded that the plan was not adopted to remedy identified discrimination, it could not meet the strict scrutiny requirement of narrow tailoring. 80 The upshot of O'Connor's majority opinion was that a minority contractor set-aside must be justified by much more than an absence of minority contractors; it must be justified by prima facie proof that the absence of minority contractors is due to constitutional

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or statutory violations. 81 Even if state and local governments *1531 clear this hurdle of proof, they may have to demonstrate the absence of alternatives to racial set-asides, as well as show that those minority contractors benefiting from set-asides have actually been affected by racial discrimination. 82 The Croson decision undermines the legitimacy of hundreds of minority set-aside programs adopted in the past few years, 83 and requires governments adopting these programs either to defend the legitimacy of the programs in court or to seek reauthorization of the programs from the appropriate governmental body. The latter course of action may enable many set-aside programs to survive, for a second time, a political authorization process. Of course, there have been changes in political circumstances between the time these programs were adopted and the Croson decision. It cannot be assumed that programs can be simply reenacted, even if evidence may be found to satisfy the Justice O'Connor majority. In the last decade of the twentieth century, the Court demands that the precious political capital of minorities seeking economic equality be spent determining the existence of racial economic discrimination, rather than pursuing policies to insure minority participation in public economic programs. In other contexts, Justice O'Connor has dissented sharply from court decisions that she said deprived local goverments of their independence by curtailing an essential attribute of state sovereignty, agenda setting. 84 In Croson, however, *1532 in which a local government sought to undo a past of racial exclusion, a goal consistent with the spirit of the equal protection clause, Justice O'Connor was willing to discard settled policies in favor of the vagaries of politics. Surely the Croson majority knows that our history shows that political processes are much more likely to disadvantage racial minorities. 85 O'Connor's Croson opinion also suggested that Congress may enact programs of racial preference addressing societal discrimination, while state and local governments may not. The result of this dichotomy is to require the development of national consensus before remedies may be adopted to address local racial problems, which are pervasive, rather than merely institutional, in nature. 86 Croson not only requires that hard-won political battles to *1533 obtain participation in the public economic sector be refought, but also makes clear that set-asides sponsored by black political majorities will be viewed skeptically. For a brief moment Justice O'Connor concedes that United States v. Carolene Products Co. 87 might require less than strict scrutiny when a majority group disadvantages itself to benefit a minority. But the concession is brief indeed, a mere incongruous prelude to the suggestion that the predominantly black Richmond City Council acted to disadvantage a majority. O'Connor did not say which majority. Did she refer to the persons who had theretofore received 99.33% of all Richmond city contracts? Underlying the skepticism about Richmond's black politics is an unrealistic view of political power generally, and black political power specifically. Justice O'Connor equates the possession of 5 of the 9 seats on the Richmond City Council with control over all aspects of Richmond's economic, political, and social life. O'Connor equates the complete power associated with the historic white domination of Richmond, which was rooted in slaveholding and segregation, with the very recent and fragile acquisition of black political power in Richmond. It is quite difficultarguably impossibleto reconcile Justice O'Connor's forgiving view of Richmond's past political and legal order with her skeptical even hostileview of the current political order.

IV. RIGHTS OF WHITES Another theme embodied in the 1989 decisions is concern for the rights of whites. City of Richmond v. J.A. Croson Co. 88 surely embodies this theme. O'Connor's decision vigorously protects whites against both the economic aspirations of black contractors and the political effectiveness of black leaders and constituents. Wards Cove also respects and facilitates the rights of whites by offering legitimacy to segregated job categories, thereby benefiting the historical beneficiaries of segregation, and by granting virtual legal immunity to employers using such categories by stacking the litigation deck in their favor. However, the case most explicit on the rights of whites is Martin v. Wilks. 89

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In Martin v. Wilks, white firefighters sued the city of Birmingham *1534 and alleged that the city was promoting less qualified blacks on the basis of race. 90 In 1974 blacks had sued the city of Birmingham, alleging that the city's employment policies excluded blacks from employment in violation of Title VII. 91 After a trial concerning applicant-screening tests, the district court found a Title VII violation. 92 A second trial was held on the city's promotional practices; after the evidence was presented, but before the judge issued his decision, the parties, the blacks and the city, negotiated and agreed to a consent decree. 93 The court required the parties to provide notice of the proposed consent decree to all interested persons. Thereafter, the court held a fairness hearing at which a group of black employees complained that the proposed relief was inadequate and a group of white employees complained that race-conscious relief was illegal and inappropriate. 94 The district court explicitly considered whether the race-conscious measures of the consent decree were compatible with previous Supreme Court decisions. After the district court approved the consent decree, the white firefighters, who had presented their objections to the consent decree, sought intervention as well as an injunction against the enforcement of the consent decree. These requests were denied 95 and Birmingham immediately implemented the consent decree by promoting eight whites and five blacks. Immediately thereafter, a new group of white firefighters sued; these firefighters were aware of the original lawsuit but had not asked to intervene. 96 The district court dismissed this lawsuit as an impermissible collateral attack on the consent decree. 97 In Martin v. Wilks, Chief Justice Rehnquist, in an opinion joined by Justices White, O'Connor, Scalia, and Kennedy, held that the collateral attack was not barred. The Court candidly acknowledged that the Third, Fourth, Fifth, Sixth, and Ninth Circuits had barred such collateral attacks. 98 Chief Justice Rehnquist then distinguished Martin v. Wilks from one of the *1535 Court's major cases holding nonparties bound to a consent decree, the Penn-Central Merger & N & W Inclusion Cases. 99 Penn-Central was distinguishable, according to Chief Justice Rehnquist, because of the extraordinary nature of the proceedings challenging the merger of giant railroads; this sort of complex lawsuit should not be compared with ordinary civil actions in a district court. 100 For these ordinary civil actions, Rule 19 of the Federal Rules of Civil Procedure requires joinder; hence, the collateral attack was not barred. Chief Justice Rehnquist dismissed the argument that permitting unlimited collateral attacks would be burdensome to civil rights litigation. 101 He acknowledged that the Court had a choice between either requiring those who might be affected by a judgment to intervene or requiring plaintiffs to join all parties who might be affected. 102 He simply chose to burden the plaintiffs. Chief Justice Rehnquist also rejected the argument that permitting these collateral attacks would undermine the congressional policy favoring voluntary settlement of employment discrimination claims. 103 He ordered the remand of Martin v. Wilks for trial on the legality of the consent decree. 104 The remainder of the Court dissented. Justices Marshall, Brennan, and Blackmun joined an opinion written by Justice Stevens. 105 Justice Stevens saw a distinction between legal rightssuch as contractual rights, which may not be impaired unless the individuals possessing such rights are parties to a consent decree, and conditions of employmentsuch as promotions for blacks, which as a practical matter, may have a serious effect on their opportunities for employment or promotion. 106 Justice Stevens conceded that even those in the latter category might attack a consent decree on limited grounds, but that the circumstances would have to be extraordinary. 107 Any other conclusion would subject large employers who seek to comply *1536 with the law by remedying past discrimination to a never-ending stream of litigation and potential liability. It is unfathomable that either Title VII or the Equal Protection Clause demands such a counter-productive result. 108

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Justice Stevens reminded the majority that the whites who collaterally attack today were and are the beneficiaries of past discrimination against blacks. Any remedy that seeks to right these wrongs will necessarily have an adverse impact on whites, who must now share their job and promotion opportunities with blacks. Just as white employees in the past were innocent beneficiaries of illegal discriminatory practices, so is it inevitable that some of the same white employees will be innocent victims who must share some of the burdens resulting from the redress of the past wrongs. 109

While the rights of whites dimension of Martin v. Wilks is glaring, the same sentiments are present in Wards Cove in a less obvious fashion. In Wards Cove the formal question involved the burden of proof applicable in Title VII disparate-impact cases, yet the Court also considered the interests of whitesin maintaining a system that prefers themas submerged in the interest of the employer. The employer was not treated as having an interest in the maintenance of the racial status quo, but rather as having an interest in the preservation of management prerogatives. 110 In Martin v. Wilks, the interests are posed much more directly: May white employees unhappy with the effect of a consent decree on their prerogatives attack it, despite the Birmingham Fire Department's historical protection of their group's interests? May they intervene, not to protect contractually acquired rights such as seniority or benefits, but to protect their interest in promotions pursuant to a test that perpetuates a racial hierarchy? Martin v. Wilks is also interesting and important because it suggests that the interests of white employees no longer converge with those of employers. Martin v. Wilks ignores the historical protection white employers have accorded white employees, but implicitly acknowledges the reality that public employers now have new obligations and more *1537 diverse constituencies to protect. 111 The idea of the rights of whites is not a new one in American race law. Certainly we can trace it to the unloading of slaves at Annapolis and Jamestown before the eighteenth century, 112 to the slavery compromises of 1789, and to its verbal apogee in Dred Scott. 113 The idea was more covert after the passage of the Civil War amendments, though it is ironic that shortly after the Supreme Court's grand pronouncements about the purpose of these amendments in the Slaughterhouse Cases, 114 Justice Bradley bitterly and candidly suggested that the time had come for blacks to cease to be a special favorite of the laws. 115 After Plessy 116 sanctioned state racism, the Court did not need to speak openly of white rights. Rather, the discussion centered on the reasonableness of distinctions and customs and usages of the community, 117 and even the benefits to blacks of disadvantageous treatment. 118 A half century later, Brown II's 119 all deliberate speed language arguably invited lower courts to covertly consider the interests of whites in the maintenance of the status quo. 120 By the late sixties the courts were beginning to consider what sort of Title VII remedies would be appropriate to remedy the blatant job segregation that still persisted in many companies. These job segregation cases provide an interesting insight into the process by which the rights of whites were incorporated into modern equality law. In cases in which the relationship of white jobs and income to overtly racist policies could not be denied, the courts sought to reconcile the idea of complete relief for blacks against the vested interest of white employeees in maintaining the status quo. 121 The competing remedial theories *1538 were evaluated openly in terms of their impact on whites and compromises were struck that, assuming economic growth, would permit an eventual change in the status quo without divesting whites of the jobs they held in part because of historic racial discrimination against blacks. 122 But it was DeFunis v. Odegaard, 123 in which a white student asserted a fourteenth amendment challenge to a University of Washington Law School program to admit blacks, which ushered in a new era of legal rhetoric about white rights. Though the DeFunis case was dismissed as moot, his cause was taken up by Bakke, 124 Fullilove, 125 Croson, 126 and others. The

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objectivethe invocation of strict legal scrutiny for challenges made by white males against programs designed to provide new opportunity for blackswas finally achieved in Croson. 127 In Wards Cove, Croson, and Wilks, the rights of whites find both recognition and protection. In each case, the source of protection is different but the result is the same. It is troubling that none of these cases acknowledges that the interests asserted may be characterized as an interest in the continued racial hegemony of whites, in the subordination of blacks. To be sure, our principles of due process do not permit contractual rights, property rights, or seniority rights to be impaired without notice and opportunity to be heard. But it is quite differentor at least it should be quite different in the post-Brown erato come to the courts with a simple request to maintain the racial status quo. In light of our history, it is not surprising that such claims have been made. It is simply troubling that the claims have been judicially validated.

V. CONCLUSION The hope that the ideal of racial equality might be made *1539 legitimate through law, that racial equality might be achieved through law, has sustained many members of the post-Brown generation. Charles Hamilton Houston, one of the greatest constitutional lawyers and an architect of twentieth-century constitutional equality, 128 was quite realistic about the possibility of achieving equality through law. He did not view his legal assault on segregation as an end in itself, but as an opportunity to determine the limits of the system's tolerance for freedom and equality. In late 1949, a few months before his death, Houston spoke these prescient words: I regard what I am doing and my work as a lawyer not as an end in itself, but simply as the means of a technician probing in the courts, which are products of the existing system, how far the existing system will permit the exercise of freedom before it clamps down. 129

Another important black American was even more skeptical than Houston about the possibilities of achieving equality through law. In 1934 Ralph Bunche 130 outlined a variety of tactics blacks might employ to improve their status. Bunche stated that the confidence blacks had in the possibilities of civil libertarianism as a basis of struggle for equality was misplaced. He said that the utility of the thirteenth, fourteenth, and fifteenth amendments as a basis for black equality was limited. [T]he Constitution is a very flexible instrument and that, in the nature of things, it cannot be anything more than the controlling elements of the American society wish it to be . . . . And, *1540 what [the courts and legislatures] wish it to be can never be more than what American public opinion wishes it to be . . . . It follows, therefore, that the policy of civil libertarianism is circumscribed by the dominant mores of the society. Its success, in the final analysis, must depend upon its ability to create a sympathetic response to its appeals among the influential elements in the controlling population. 131

Dr. Bunche wrote in 1934, but his warning about the limits of the Court are still important. It is no accident that the 1989 decisions reflect a selective activism and restraint, with results usually detrimental to blacks. This result is not surprising. The Justices appointed to the Court by President Reagan have joined to form a majority that opposes a strong role for the courts in identifying and remedying discrimination. 132 A new legal structure is being erected. It is complete with reassuring caveats, technical analyses, and evidentiary nuances. It surrounds, and it legitimizes the racial status quo. In the long run, the new structure may be just as effective as the rationalizations of the Plessy era, with one important distinction. The new regime is cloaked in post-Brown legitimacy and sustains Brown's myth of a new racial order. Racism is now plausibly deniable.

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In a short Wards Cove dissent, Justice Blackmun lamented the judicial turn of events represented by Wards Cove and other recent decisions. One wonders whether the majority still believes that race discriminationor, more accurately, race discrimination against nonwhitesis a problem in our society, or even remembers that it ever was. 133 It is not too early to ask the questions Houston and Bunche raised. For while the efforts that have led to the demise of overt legal racism must be applauded, the creation of a new legal order that legitimates the maintenance of racial subordination and domination must be condemned. In the short run, there may be no choice but to continue to probe the existing system for the possibility that it may yield racial justice. But in the long run, it may be necessary to ask whether the confinement of the movement for racial equality to civil rights litigation exposes the movement to great risk. It is not only possible that if so confined, meaningful equality may not be achieved, but also that the *1541 very legitimacy of alternate avenues to racial justice may also be compromised. It is perhaps too early to concede the limits of a legal strategy in the twenty-first century. But given the recent Supreme Court trends, those who seek racial justice must remain prepared to expose more dramatically, as did the students of Greensboro, the manner in which the existing legal framework may immorally and unduly limit and dampen the aspiration of African-American for universal freedom. 134

Footnotes a Professor of Law, University of Wisconsin; A.B., California State University at Long Beach; J.D., University of California, Berkeley. 1
Bunche, A Critical Analysis of the Tactics and Programs of Minority Groups, in BLACK PROTEST THOUGHT IN THE TWENTIETH CENTURY 183, 197 (2d ed. 1971). Public Employees Retirement Sys. v. Betts, 109 S. Ct. 2854 (1989); Independent Fed'n of Flight Attendants v. Zipes, 109 S. Ct. 2732 (1989); Jett v. Dallas Indep. School Dist., 109 S. Ct. 2702 (1989); Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989); Lorance v. AT&T Technologies, 109 S. Ct. 2261 (1989); Martin v. Wilks, 109 S. Ct. 2180 (1989); Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 (1989). Ralph Neas, Executive Director of the Leadership Conference on Civil Rights, said, This Supreme Court term has been a disaster for all those committed to equal employment opportunity. Sadly, the Supreme Court, the principal protector of individual rights and liberties for the last 35 years, has been abandoning that historic role. Special Report: Supreme Court Decisions Do Grave Damage to Equal Employment Opportunity Law, CIV. RTS. MONITOR, Summer-Fall, 1989, at 1, 3. Representative Don Edwards (D. Cal.), Chair of the House Judiciary Subcommittee on Civil and Constitutional Rights and a leading cosponsor of recently enacted Civil Rights Restoration Act, Pub. L. No. 100-259, 102 Stat. 28 (1988) (codified as amended in scattered sections of 20, 29, and 42 U.S.C.), said that [t]he Supreme Court has been dealing blow after blow to 25 years of progress in civil rights law. Id. And Benjamin Hooks, Executive Director of the NAACP and Chair of the Leadership Conference on Civil Rights, said Night has fallen on the Court as far as civil rights are concerned. We are seeing the unraveling of gains we thought were secure. Id. (citing N.Y. Times, June 13, 1989). Wilks, 109 S. Ct. 2180. 401 U.S. 424 (1971). Wards Cove, 109 S. Ct. 2115. Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989). City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, to be published at 488 U.S. 469 (1989).

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Statistical information shows significant disparities between whites and blacks on many indicators. For example, as of 1987, the median family income of white married couples was $35,355, while the median family income for black married couples was $27,238. These racial income disparities persist regardless of the status of the family. For example, the income of a white female householder with an absent husband was $17,961 while that of a black female householder with an absent husband was $10,017. U.S. DEP'T OF COMMERCE, BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES: 1989, at 442 (109th ed.) [hereinafter STATISTICAL ABSTRACT] (Table No. 715, Household Type, by Median Income and Income Level: 1987). In addition, distribution of black and white families within a given income level demonstrates striking inequities. For example, as of 1987, only 5.4% of white households earned under $5000, while 17.9% of black households earned under $5000. Only 10.7% of white households earned between $5000 and $9999, yet 17.7% of black families were in that category. Though 18.1% of white households earned $35,000 - $49,999, only 10.8% of black families were in this category. Lastly, 19.7% of white households earned over $50,000, while only 7.5% of black households were in that category. Id. at 440 (Table No. 711, Money Income of Households Percent Distribution by Income Level in Constant (1987) Dollars, by Race and Hispanic Origin of Householder: 1970 to 1987). There are also significant differences in the occupational status of blacks and whites. Blacks are underrepresented in the managerial and professional occupations (6.2% blacks), overrepresented in certain service occupations, such as cleaners and servants (34.4%), and underrepresented in other service occupations, such as firefighting and fire prevention (7.4%). Other professional occupations also show serious disparities; for example, blacks comprise only 3.4% of lawyers and judges, 3.7% of physicians, and 2.1% of dentists. Id. at 388-89 (Table No. 642, Employed Civilians, by Occupation, Sex, and Race: 1987); see also Swinton, The Economic Status of Black Americans, in THE STATE OF BLACK AMERICA 1989, at 9 (J. Dewart ed. 1989). Black unemployment has been and remains significantly higher than white unemployment. STATISTICAL ABSTRACT, supra, at 393 (Table No. 647, Unemployed WorkersSummary: 1972 to 1987). These black-white differentials date back to slavery and the immediate post-emancipation period and are traceable to racial discrimination. See generally Higgs, Black Progress and the Persistence of Racial Economic Inequalities, 1865-1940, in THE QUESTION OF DISCRIMINATION 9 (1989); Hill, Black Labor and Affirmative Action: An Historical Perspective, in THE QUESTION OF DISCRIMINATION, supra, at 190. Brown v. Board of Educ., 347 U.S. 483 (1954). Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 109 S. Ct. 2115 (1989). 109 S. Ct. 2363 (1989). 109 S. Ct. 2115. 401 U.S. 424 (1971). Wards Cove, 109 S. Ct. at 2120. Id. Id. Id. at 2121 (citation omitted). Id. Id. at 2123. Id. at 2122 (emphasis in original). Id. at 2121 (quoting Hazelwood School Dist. v. United States, 433 U.S. 229, 308 (1977)). Id. at 2122.

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Id. Id. at 2122-23. Id. at 2122. Id. at 2123. See id. (emphasis in original) (citation omitted). The peculiar facts of this case further illustrate why a comparison between the percentage of nonwhite cannery workers and nonwhite noncannery workers is an improper basis for making out a claim of disparate impact. Here, the District Court found that nonwhites were overrepresent[ed] among cannery workers because petitioners had contracted with a predominantly nonwhite union (Local 37) to fill these positions. As a result, if petitioners . . . ceased using Local 37 as its hiring channel for cannery positions, it appears . . . that the racial stratification between the cannery and noncannery workers might diminish to statistical insignificance. Under the Court of Appeals' approach, therefore, it is possible that with no change whatsoever in their hiring practices for noncannery workers the jobs at-issue in this lawsuit petitioners could make respondents' prima facie case of disparate impact disappear. But if there would be no prima facie case of disparate impact in the selection of noncannery workers absent petitioners' use of Local 37 to hire cannery workers, surely the petitioners' reliance on the union to fill the cannery jobs not at-issue here (and its resulting overrepresentation of nonwhites in those positions) does notstanding alonemake out a prima facie case of disparate impact. Id. at 2126. Id. at 2127. Id. In his dissent, Justice Stevens cited six Supreme Court cases in which the Court allocated to the employer the burden of persuasion on the issue of business necessity. See id. at 2130 n.14 (Stevens, J., dissenting). Justice Steven's dissent reviewed the Supreme Court and many circuit court decisions affected by Justice White's opinion. Id. at 2132-33. Justice Steven's opinion was joined by Justices Brennan, Marshall, and Blackmun. Griggs v. Duke Power, 401 U.S. 424, 431 (1971). Id. at 432. Wards Cove, 109 S. Ct. at 2132. Brown v. Board of Educ., 347 U.S. 483 (1954). Greene, Title VII Class Actions: Standing at Its Edge, 58 U. DET. J. URB. L. 645, 665-66 (1981). The Civil Rights Cases, 109 U.S. 3, 48 (1883) (Harlan, J., dissenting). 109 S. Ct. 2363 (1989). 42 U.S.C. 1981 (1982). Patterson, 109 S. Ct. at 2374. Id. at 2373. Justice Kennedy accepted as true Brenda Patterson's allegations of racial harassment: [that her supervisor] periodically stared at her for several minutes at a time; that he gave her too many tasks, causing her to complain that she was under too much pressure; that among the tasks given her were sweeping and dusting, jobs not given to white employees. On one occasion [her supervisor] told [her] that blacks are known to work slower than whites. Id. (citation omitted).

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Id. at 2374. Id. at 2373 (quoting 42 U.S.C. 1981). Id. Id. at 2372. Id. Id. at 2373. Id. (quoting 42 U.S.C. 1981). Id. 427 U.S. 160 (1976). Patterson, 109 S. Ct. at 2373. Justice White argued in Runyon that whites never had the right to make a contract with an unwilling person. Therefore, 1981 could not prohibit racially motivated refusals to contract. Runyon, 427 U.S. at 193-95 (White, J., dissenting). In addition, Justice White said that 1981 had been passed pursuant to the 14th amendment and therefore could not have addressed private racially discriminatory conduct. Id. at 195-211. It is unclear what Justice Kennedy intended to communicate by citing Justice White. Perhaps Justice Kennedy meant to suggest his general agreement with Justice White's previously expressed skepticism about the scope of 1981. Patterson, 109 S. Ct. at 2375. Id. Id. at 2374. Id. at 2376. Id. Ironically, Kennedy cites the very breadth of a statute as an argument for its limitation. See The Civil Rights Cases, 109 U.S. 3 (1883); The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873). Patterson, 109 S. Ct. at 2376-77 (emphasis in original). Id. at 2388 (Brennan, J., concurring in part and dissenting in part). Id. Id. (emphasis in original). 2 A. GUERNSEY & H. ALDEN, HARPERS PICTORIAL HISTORY OF THE CIVIL WAR 804 (1866). 1866 Miss. Laws 862, reprinted in 2 A. GUERNSEY & H. ALDEN, supra note 65, at 804 n.2. 1866 Miss. Laws 826, reprinted in 2 A. GUERNSEY & H. ALDEN, supra note 65, at 804 n.2. 1865 S.C. Acts 251, reprinted in 2 A. GUERNSEY & H. ALDEN, supra note 65, at 804 n.2. E. FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION: 1863-1877, at 121 (1988). See NAACP Legal Defense & Educ. Fund, Inc., The Impact of Patterson v. McLean Credit Union (Nov. 20, 1989).

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On February 7, 1990, two bills were introduced to overturn the decisions in Patterson, Wards Cove, and Martin v. Wilks. H.R. 4000, 101st Cong., 2d Sess., 136 CONG. REC. H364 (daily ed. Feb. 7, 1990); S. 2104, 101st Cong., 2d Sess., 136 CONG. REC. S1019 (daily ed. Feb. 7, 1990). The full version of the House bill had not been published in the Congressional Record at the time this Article went to press, but it is identical to the Senate version. E. FONER, supra note 69, at xxvii. 109 S. Ct. 2180 (1989). 109 S. Ct. 706 (to be published at 488 U.S. 469 (1989)). Id. at 712-13. Id. at 714. Id. at 721. Id. at 723. Id. at 725. Id. at 728-29. Id. at 724. Justice Scalia concurred in this view. Id. at 735 (Scalia, J., concurring). Justice Kennedy seemed to concur with the most restrictive reading of Justice O'Connor's opinion, that racial quotas must be used as a last resort. Id. at 734 (Kennedy, J., concurring). Were O'Connor's requirements not so onerous, they might seem amusing in an Alice-in-Wonderland fashion. Richmond was not only the capital of the Confederacy, but also the capital of a state that engaged in both sophistry and subterfuge to maintain its segregated institutions. See, e.g., Griffin v. County School Bd., 377 U.S. 218 (1964). In Griffin, the Supreme Court held unconstitutional the decision of the Virginia Prince Edward County Board of Supervisors that closed the public schools to avoid desegregation and extended state tuition grants and tax credits to white segregated private schools. Blacks in Prince Edward County were denied formal schooling for four years. Id. at 223. Historically, Virginia had fought hard to maintain racial distinctions through Reconstruction and into the recent past. Virginia argued in defense of its statutes criminalizing interracial marriage and its highest courts upheld such statutes in 1955. See Naim v. Naim, 197 Va. 80, 87 S.E.2d 749, vacated on other grounds, 350 U.S. 891 (1955). In 1967 Virginia came to the Supreme Court to defend the criminalization of interracial marriage. Loving v. Virginia, 388 U.S. 1 (1967). Virginia enacted Black Codes to subjugate blacks through legal processes after emancipation, see E. FONER, supra note 69, at 200, by systematically disenfranchising blacks at the turn of the century, see R. KLUGER, SIMPLE JUSTICE 456-57 (1976), by providing almost no post-elementary school education to blacks until the 1940s, see id. at 459-60, and thereafter gave only lip service to the idea of separate but equal facilities for blacks. Id. at 458-61. Furthermore, Virginia defended outhouse toilets as equal facilities for young children in the 1950s. Id. at 480. I attended a couple of the schools Virginia would have preferred to maintain for black children. My first-grade school had three rooms, outhouse toilets, well water for drinking drawn by a pump (which I personally primed to get a drink from the spout), dirt yard, potbellied stove for heat, and rough, hewn plank floors. Our desks, and the few books we had, had all been used by white children before; we had to purchase these books, so many children had no books at all. No fingerpainting, art, or music was offered. My own desk had been carved with the word nigger, presumably by a white child who had the desk before it came to my school. I was bused over 10 miles to this school, in a bus that picked up other black children in Virginia's Princess Anne County. There was a modern white elementary school right across the street from where I lived and my bus stop was right in front of this school. Just before I started at my separate-but-equal school, my mother had attempted to enroll me in the nice white school. She entered the building through the front door, went to the office, and told the principal about my ability to read, write, do arithmetic, play the piano, etc. My mother was threatened and warned never to come in the building again. I waited for the bus in front of this school every day. Croson, 109 S. Ct. at 728.

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According to the Minority Business Enterprise and Legal Defense and Education Fund, as of November 29, 1989, Croson has resulted in 5 set-aside programs declared unconstitutional, 27 challenged in court, and 15 voluntarily terminated or suspended. San Francisco Chron., Feb. 6, 1990, at A7; Engineering News-Rec., Dec. 14, 1989, at 17; see also L. NAY & J. JONES, EQUAL EMPLOYMENT AND AFFIRMATIVE ACTION IN LOCAL GOVERNMENTS: A PROFILE 44 (Institute for Legal Studies Working Paper Series, Vol. 4, No. 3, Apr. 1989) (at least 564 set-aside programs exist in the United States). For example, in FERC v. Mississippi, 456 U.S. 742 (1982), a decision that upheld the constitutionality of the Public Utility Regulatory Policies Act, Justice O'Connor argued that requiring state regulatory agencies to consider whether to adopt federal policies undermines state and local sovereignty. Id. at 775 (O'Connor, J., concurring in part and dissenting in part). Though the statute did not actually require local state regulatory agencies to adopt federal policies, O'Connor (with Justice Rehnquist and Chief Justice Burger) asserted that the mere requirement that federal policies be considered undermines state independence. The power to make decisions and set policy, however, embraces more than the ultimate authority to enact laws; it also includes the power to decide which proposals are most worthy of consideration, the order in which they should be taken up, and the precise form in which they should be debated. Id. at 779. Justice O'Connor objected, on state sovereignty grounds, to the Court's decision upholding the constitutionality of the Age Discrimination in Employment Act as applied to the states. In EEOC v. Wyoming, she joined Chief Justice Burger's dissent. 460 U.S. 226, 251 (1983) (Burger, C.J., dissenting). The Chief Justice stated that the requirement that age-based hiring be justified with costly, detailed studies unduly interfered with state independence. Flexibility for experimentation not only permits each state to find the best solutions to its own problems, it is the means by which each state may profit from the experiences and activities of all the rest. Nothing in the Constitution permits Congress to force the states into a Procrustean national mold that takes no account of local needs and conditions. Id. at 265. The state sovereignty considerations so important to O'Connor in FERC v. Missisippi and EEOC v. Wyoming seem irrelevant in Croson. This, of course, was the message of the famous footnote 4 of United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938), the basis for a great deal of judicial equal protection analysis. A key aspect of the requirement of strict scrutiny under the Carolene Products' theory was the existence of a discrete insular minority unable to protect itself in the political process. Given its underpinning and values, Carolene Products' standards did not justify the imposition of strict scrutiny when whites claimed racial discrimination or equal protection violations. Powell's opinion in Bakke reinterpreted the Court's equal protection doctrine to require a focus on the existence of racial classifications rather than a history of oppression and subjugation. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (opinion of Powell, J.). In Croson, four members of the Court (Rehnquist, O'Connor, Scalia, and Kennedy) rejected a Carolene Products' interpretation, which would require less than strict scrutiny in cases involving challenges by white males to programs of racial preference, Croson, 109 S. Ct. at 721-23, while three other members of the Court (Marshall, Brennan, and Blackmun) believe such a distinction is historically and practically required. Id. at 743 (Marshall, J., dissenting). This particular aspect of the O'Connor opinion was quite surprising because she has often written in defense of federalism values. See supra note 84 and accompanying text. 304 U.S. 144 (1938). 109 S. Ct. 706 (to be published at 488 U.S. 469 (1989)). 109 S. Ct. 2180 (1989). Id. at 2183. Id. Id. at 2191. Id.

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Id. Id. at 2183. Id. Id. at 2183-84. Id. at 2185 n.3. 389 U.S. 486 (1968). Martin v. Wilks, 109 S. Ct. at 2186-87. Id. at 2187. Id. Id. at 2187-88. Id. at 2188. Id. (Stevens, J., dissenting). Id. at 2189. Id. at 2195. Among the examples cited by Justice Stevens is Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984) in which the district court granted a writ of coram nobis vacating a conviction based on government concealment of critical contradictory evidence in Korematsu v. United States, 323 U.S. 214 (1944). Martin v. Wilks, 109 S. Ct. at 2200 (Stevens, J., dissenting). Id. (footnote omitted). See supra text accompanying notes 16-39. See supra text accompanying notes 90-109. See L. HIGGINBOTHAM, The Black Experience in Colonial America, in IN THE MATTER OF COLOR: RACE AND THE AMERICAN LEGAL PROCESS 19-313 (1978). Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). 83 U.S. (16 Wall.) 36 (1873). The Civil Rights Cases, 109 U.S. 3 (1883). Plessy v. Ferguson, 163 U.S. 537 (1896). Id. at 550-51. Cumming v. County Bd. of Educ., 175 U.S. 528, 544 (1899). Brown v. Board of Educ., 349 U.S. 294 (1955). See G. STONE, L. SEIDMAN, C. SUSTEIN & M. TUSHNET, CONSTITUTIONAL LAW 472-75 (1986). Of course, some did so overtly as well. Id.

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See, e.g., Patterson v. American Tobacco Co., 535 F.2d 257 (4th Cir. 1976); Local 189, United Papermakers & Paperworkers v. United States, 416 F.2d 980 (5th Cir. 1969). See cases cited supra note 121. 416 U.S. 312 (1974). Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (Bakke challenged the Medical School's special admissions program that favored certain minority applicants). Fullilove v. Klutznick, 448 U.S. 448 (1980) (challenge made against a federal program requiring a minimum amount of the financial assistance provided for building public facilities be awarded to minority businesses). See supra text accompanying notes 74-82. Perhaps this objective could not have been achieved without the efforts of the Reagan administration Justice Department and the appointment by President Reagan of Scalia, O'Connor, and Kennedy, three Justices who consistently vote together against black civil rights plaintiffs and in favor of whites claiming reverse discrimination. Judge Leon Higginbotham, of the U.S. Court of Appeals for the Third Circuit, said in his foreword to the Houston biography that because of Houston's tenacity and genius, he deserves a stature in our nation as significant as that specially reserved for Thomas Jefferson, George Washington, Patrick Henry, or Chief Justice John Marshall. Though Houston did not write the Declaration of Independence, he made life, liberty, and the pursuit of happiness a far more meaningful option for blacks than Thomas Jefferson ever did for his own slaves or for blacks in general . . . . Though he did not have the extraordinary judicial power of Chief Justices John Marshall and Roger Brooke Taney, nevertheless Charles Houston made the Constitution a living and more relevant document to those Americans against whom John Marshall and Roger Brooke Taney so often ruled adversely, dashing the aspirations and hopes of blacks for freedom. Higginbotham, Foreword to G. MCNEIL, GROUNDWORK at xvii (1983). See generally KLUGER, supra note 81. G. MCNEIL, supra note 128, at 208 (quoting statement of Charles H. Houston (circa Dec. 1949)). Ralph Bunche served as Chairman of the Department of Political Science at Howard University in the 1930s and eventually served as the Under Secretary of the United Nations. Bunche, supra note 1, at 183. Id. at 195. See, e.g., Spallone v. United States, 110 S. Ct. 625 (1990). Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115, 2136 (1989) (Blackmun, J., dissenting). In The Slaughterhouse Cases, 83 U.S. (16 Wall.) 36 (1873), the Court made a sweeping statement about the one pervading purpose of the 13th, 14th, and 15th amendments: [T]he freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. Id. at 71. However, the remainder of the opinion severely limited the protections allowed by these amendments. See, e.g., Kinoy, The Constitutional Rightof Negro Freedom, 21 RUTGERS L. REV. 387 (1967).

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End of Document 2014 Thomson Reuters. No claim to original U.S. Government Works.

2014 Thomson Reuters. No claim to original U.S. Government Works.

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