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The Cul De Sac of Race Preference Discourse

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The Cul De Sac of Race Preference Discourse ARTICLES THE CUL DE SAC OF RACE PREFERENCE DISCOURSE CHRISTOPHER A. BRACEY* TABLE OF CONTENTS I. INTRODUCTION...............................................................................1232 II. THE PEDIGREE OF CONTEMPORARY RHETORIC OPPOSING RACE PREFERENCES...........................................1238 A. INNOCENCE .............................................................................1242 1. Racial Innocence Rhetoric in Modern Legal Discourse...1246 2. The Pedigree of Racial Innocence Rhetoric .....................1255 B. MERIT......................................................................................1265 1. Merit Rhetoric in Modern Legal Discourse......................1268 2. The Pedigree of Merit Rhetoric........................................1272 C. STIGMA OF DEPENDENCE ........................................................1275 1. Stigma of Dependence Rhetoric in Modern Legal Discourse .........................................................................1277 * Associate Professor of Law, Associate Professor of African & African American Studies, Washington University in St. Louis; B.S. 1992, University of North Carolina; J.D. 1995, Harvard Law School. I am grateful to my colleagues at Washington University’s interdisciplinary study group on Social Thought and Analysis for their thoughtful comments and suggestions in response to my initial presentation of these ideas. In addition, I wish to thank Susan Appleton, Tomiko Brown-Nagin, Paul Butler, Clark Cunningham, Barbara Flagg, Samuel Bagenstos, Dorothy Brown, Cheryl Harris, Randall Kennedy, F. Scott Kieff, Pauline Kim, Kim Norwood, Troy Paredes, Bruce LaPierre, Dorothy Roberts, Ahmed White, and my research assistants, Christopher Bussard and Michelle Tham, for their comments and support. Finally, I thank my colleagues in the African & African American Studies program at Washington University for their unrelenting scholarly encouragement and support. Copyright © 2006. Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for educational or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in the copies. 1231 1232 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 79:1231 2. The Pedigree of Stigma of Dependence Rhetoric.............1279 D. DOMESTIC TRANQUILITY........................................................1281 1. Domestic Tranquility Rhetoric in Modern Legal Discourse .........................................................................1283 2. The Pedigree of Domestic Tranquility Rhetoric...............1288 III. THE SIGNALING EFFECTS OF PEDIGREED RHETORIC........1293 A. WHITE PRIVILEGE ...................................................................1300 B. PSYCHIC COMFORT .................................................................1305 C. ADMINISTRATIVE EASE...........................................................1306 D. INTEREST CONVERGENCE .......................................................1307 E. A DEFICIT OF POLITICAL IMAGINATION..................................1310 IV. A FOUNDATION FOR RENEWED RACIAL DIALOGUE .........1311 V. CONCLUSION..................................................................................1324 I. INTRODUCTION Despite over a quarter century of affirmative action policy,1 public endorsement of the practice by leading American institutions,2 and validation by the United States Supreme Court,3 the relevance of race in university admissions and hiring decisions remains a persistent source of conflict. Disagreement, however, has not produced a particularly robust or constructive public dialogue on this issue. Indeed, public conversation 1. Most commentators agree that the origins of “affirmative action” lie in President John F. Kennedy’s Executive Order 10,925, which required certain federal contractors to take “affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, creed, color, or national origin.” See Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 6, 1961). The affirmative action mandate was greatly expanded by President Lyndon Johnson’s issuance of Executive Order 11,246. See Exec. Order No. 11,246, 30 Fed. Reg. 12,319 (Sept. 24, 1965). However, the idea of imposing some affirmative obligation on state actors to improve employment opportunities arguably predates both of these orders. See Angela Onwuachi-Willig, Using the Master’s “Tool” to Dismantle His House: Why Justice Clarence Thomas Makes the Case for Affirmative Action, 47 ARIZ. L. REV. 113, 125 (2005) (arguing that the Kennedy and Johnson orders were “actually part of a long line of executive orders” dating back to the Roosevelt administration that were “intended to expand employment opportunities for Blacks”). 2. See Consolidated Brief of Lt. Gen. Julius W. Becton, Jr. et al. as Amici Curiae Supporting Respondents, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241); Brief for Gen. Motors Corp. as Amicus Curiae Supporting Respondents, Gratz v. Bollinger, 539 U.S. 244 (2003) (No. 02-516). See also Brief for Amici Curiae 65 Leading American Businesses Supporting Respondents at 3–5, Grutter, 539 U.S. 306 (No. 02-241) (“Because our population is diverse, and because of the increasingly global reach of American business, the skills and training needed to succeed in business today demand exposure to widely diverse people, culture, ideas and viewpoints.”). 3. See Grutter, 539 U.S. 306. 2006] RACE PREFERENCE 1233 regarding the appropriateness of race preferences remains mired in an unhealthy and unproductive impasse. The breakdown usually, but not always, occurs along traditional ideological lines.4 Progressive proponents generally endorse the use of race preferences as a measured response to the perceived malign status quo of American race relations. They highlight myriad ways in which individual and institutional practices have, over time, worked to entrench the subordinated status of racial minorities and point to race preferences as an example of the kind of robust, substantive, and race-conscious response that “justice” demands. Conservative opponents generally acknowledge persistent racial disparities in health, wealth, and society, but point to substantial advances in modern race relations as a testament to the virtues of colorblindness and formal racial equality—virtues threatened by the reliance upon race when dispensing educational and employment opportunities and other social goods. Impassioned disagreement is inevitable, given the extended legacy of racial oppression, conflicting perceptions of racial injustice, and divergent visions of what a racially just society entails. What might have been the subject of robust exchanges of ideas, however, now cycles stubbornly and uncomfortably within a caustic, ideological cul-de-sac.5 The stagnation of race preference discourse presents a particularly tragic state of affairs. As an initial matter, this conversational crisis calcifies existing divisions between progressives and conservatives regarding this racial issue, and encourages a closing-ranks mentality that is 4. For a particularly thoughtful left critique of affirmative action, see RICHARD THOMPSON FORD, RACIAL CULTURE: A CRITIQUE (2005). 5. See Richard A. Epstein, A Rational Basis for Affirmative Action: A Shaky but Classical Liberal Defense, 100 MICH. L. REV. 2036, 2046 (2002) (describing current affirmative action policy as placing us in an “unhappy impasse” for “[i]f we hew to traditional constitutional law doctrine, then we must jettison affirmative action notwithstanding its widespread support in the university and business communities”); Daniel A. Farber, The Outmoded Debate over Affirmative Action, 82 CAL. L. REV. 893 , 893 (1994) (“The academic debate over affirmative action has become a bitter stalemate.”); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1766 (1993) (describing affirmative action as a “wellspring” of bitter debate); Samuel Issacharoff, When Substance Mandates Procedure: Martin v. Wilks and the Rights of Vested Incumbents in Civil Rights Consent Decrees, 77 CORNELL L. REV. 189, 252 (1992) (stating that the affirmative action debate is “caustic and draining”); Ilhyung Lee, Race Consciousness and Minority Scholars, 33 CONN. L. REV. 535, 536 (2001) (describing a “growing incivility in legal scholarship” on race and lamenting that “much of what is written about race in legal academia can be ‘dishonest, confused, ill-informed, [and] unhelpful’” (quoting K. ANTHONY APPIAH & AMY GUTMANN, COLOR CONSCIOUS: THE POLITICAL MORALITY OF RACE 182 (1996))); Kendall Thomas, Racial Justice: Moral or Political?, 17 NAT’L BLACK L.J. 222, 222 (2003) (observing that “our national conversation about ‘race’ now stands at an impasse” and that much of what passes as reasoned debate can be reduced to a basic disagreement over whether the constitution permits color- conscious policies). 1234 SOUTHERN CALIFORNIA LAW REVIEW [Vol. 79:1231 antithetical to the reasoned and robust exchange of ideas that is the hallmark of our democracy. At the same time, what might have been reasoned debate over the relative merits of race preferences is transformed into ritualized recitation of ideological platitudes and inflexible appeals to the inexorable logic of one ideological commitment or another. Perhaps the most tragic consequence is that
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