University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 1996 Race Law and Justice: The Rehnquist Court and the American Dilemma, Frank H. Wu UC Hastings College of the Law, [email protected] Follow this and additional works at: http://repository.uchastings.edu/faculty_scholarship Part of the Law and Race Commons Recommended Citation Frank H. Wu, Race Law and Justice: The Rehnquist Court and the American Dilemma,, 45 Am. U. L. Rev. 567 (1996). Available at: http://repository.uchastings.edu/faculty_scholarship/1411 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. CONFERENCE RACE, LAW AND JUSTICE: THE REHNQUIST COURT AND THE AMERICAN DILEMMA TABLE OF CONTENTS Introduction .................................... 567 I. Color-Blindness Versus Racial Justice: The Supreme Court's 1994-95 Term and the Struggle to Define Equal Protection ............................. 568 II. Beyond Black and White: Race-Conscious Policies and the "Other Minorities" . ..................... 601 III. Keynote Address: Angela Davis .................. 636 IV. "Creditor and Debtor Races": Is It Time to Get Beyond Race? ............................... 645 V. Appendix: Biographies of Participants ............ 680 INTRODUCTION On September 21, 1995, the Law and Government Program of the Washington College of Law, the Asian-Pacific American Law Students Association, and The American University Law Review hosted a confer- ence addressing recent Supreme Court jurisprudence on race. The conference brought together many leading scholars involved in this area of law.' The Law Review is honored to publish three panel discussions entitled "Color-Blindness Versus Racial Justice: The Supreme Court's 1994-95 Term and the Struggle to Define Equal Protection," "Beyond Black and White: Race-Conscious Policies and the 'Other Minorities,"' and "'Creditor and Debtor Races': Is It Time to Get Beyond Race?". The Law Review is also proud to include the 1. Brief biographies of the participants are set out in Appendix I. 567 568 THE AMERICAN UNvERSITy LAW RVmEW [45:567 luncheon keynote address by Angela Davis.2 Many of the panelists wrote Essays subsequent to the Conference that expanded upon the issues raised during the panel discussions. These Essays appear after this conference transcript. I. COLOR-BLINDNESS VERSUS RACIAL JUSTICE: THE SUPREME COURT'S 1994-95 TERM AND THE STRUGGLE TO DEFINE EQUAL PROTECTION DEAN RASKIN: Good morning, welcome to the Washington College of Law and the American University. We are proud to receive so many distinguished visitors here at WCL. Today's conference is a timely and important event. W.E.B. DuBois said that the problem of the twentieth century is the problem of the color line.' And just four years away from the next century, we have not been able to prove him wrong. The Supreme Court and ourjustice system are central actors in the American attempt to wrestle with the color line and racism, which is America's original sin. Today we have many of the nation's leading lawyers, writers, and public intellectuals to debate race and the Rehnquist Court. When we met last year, our focus was Shaw v. Reno,4 and whether that case held out a new conservative jurisprudence of race for the Supreme Court. That new jurisprudence may have arrived. In three five-to-four decisions last Term, the Supreme Court took a hard turn to the right. It further reduced the ability of states to create majority black and Hispanic congressional and state legislative districts,' curtailed federal affirmative action programs,6 and reduced the remedial power of federal district courts to order magnet programs and higher teacher 7 pay in order to accomplish desegregation. Today we want to examine the new activist, conservative racial jurisprudence, where it comes from, what it means, how new or old it is, how logical and consistent it is, how it relates not just to whites 2. The participants and The Law Review staff made minor editorial changes to the transcript when necessary for darity. The Law Review staff also supplied the citations. 3. William Edward Burghardt DuBois, To the Nations of the World: Address to the Pan- African'Conference in London (1900), reprinted in DAVID LEVERING LEWIS, W.E.B. Du Bois: BIOGRAHY OF A RACE, 1868-1919, at 251 (1993). 4. 113 S. Ct. 2816 (1993). 5. See Miller v. Johnson, 115 S. Ct. 2475 (1995). 6. SeeAdarand Constructors, Inc. v. Pena, 115 S. Ct. 2097 (1995). 7. See Missouri v.Jenkins, 115 S. Ct. 2038 (1995). 1996] CONFERENCE ON RACE, LAW AND JUSTICE 569 and blacks, but to other minority groups, and whether we as a society and a nation under law can in fact get beyond race. Let me begin by coming to Charles Cooper. Has a new jurispru- dence of race evolved in the Supreme Court with last Term? And does thisjurisprudence conform to constitutional requirements as you see them? MR. COOPER: First, let me say thank you, Jamin. It's a pleasure to be with you. Good morning, ladies and gentlemen. I don't think that a new jurisprudence of the Equal Protection Clause developed during the last Term. I rather think that the Court's jurisprudence was extended and elaborated in the last Term, and moved incrementally towards color-blindness. That is what we witnessed last Term. I think that the Court's current equal protection jurisprudence is a return to Brown v. Board of Education.' In fact, what we're seeing is the Court evolving incrementally full circle to the Brown v. Board of Education decision. Let me take the cases very briefly, piecemeal, to illustrate this point. In Adarand Constructors, Inc. v. Pena9 the Court applied strict equal protection scrutiny to what essentially amounted to racial preferences in the government business contracting area.10 That case is actually an extension and elaboration of an earlier case, Richmond v. JA. Croson." While Adarand overruled Metro Broadcasting Inc. v. FCC,2 it is my view that Metro Broadcasting actually is the aberration, in at least the Court's recent jurisprudence. The Miller v. JohnsonP case, a Georgia case that dealt with electoral redistricting, indicated very clearly that strict judicial scrutiny applies to the use of race in the drawing of electoral boundaries. 4 Judging by the Court's rhetoric, a very strict standard of scrutiny would be 8. 347 U.S. 483, 495 (1954) (holding that segregation in public schools, solely on basis of race, deprives children in minority groups of equal educational opportunities in contravention of Equal Protection Clause). 9. 115 S. Ct. 2097 (1995). 10. Adarand Constructors, Inc. v. Pena, 115 S. Ct. 2097, 2113 (1995). 11. 488 U.S. 469, 510 (1989) (holding that city plan requiring prime construction contractors to subcontract at least 30% of dollar amount to minority business enterprises failed to show compelling state interest and was not narrowly tailored). 12. 497 U.S. 547, 568-69 (1990) (holding that FCC preferential licensing treatment of minority businesses did not violate Equal Protection Clause), ovemued by Adarand, 115 S. Ct. at 2097. 13. 115 S. Ct. 2475 (1995). 14. Miller v.Johnson, 115 S. Ct. 2475, 2482 (1995). 570 THE AMERICAN UNiVERSITY LAW REVIEW [45:567 applied. But that case seems to me to be a natural follow-up to Shaw v. Reno, the case that this symposium examined specifically last year. Missouri v. Jenkins1 was a school desegregation case dealing with, essentially, the point at which school districts are entitled to be released from judicial supervision, and from earlier desegregation orders."6 In Oklahoma City v. Dowell, 1 the Court articulated, I think more clearly than it had previously, the standards for ending desegregation decrees and restoring educational policy decisionmaking to the elected and appointed local school officials.'" So Jenkins is not a startling result. It's one that I think was fairly predictable from the Court's jurisprudence, both in Dowell, as I mentioned, and in a case called Freeman v. Pitts,9 which also preced- ed the Jenkins case. Finally, there was another case that I think is noteworthy, not because it was decided on the merits by the Supreme Court last Term, but because the Supreme Court refused to consider it.2" Andwhile it has no precedential value on the merits, we may be able to draw some insights concerning the Court's direction. That's the Podberesky v. Kirwan case, which dealt with racially exclusive college scholarships at the University of Maryland." The Fourth Circuit struck down that program at the University of Maryland as unjustifiable under the strict scrutiny test applicable under the Equal Protection Clause,22 and the Supreme Court decided not to review it.2" Last Term, the Supreme Court continued an evolutionary process in four different cases, arguably four, certainly three, indicating again incremental progress, in my view, towards color-blindness and away from racial preferences. I would close this response by saying that I think the idea of racial preference is under serious scrutiny, not only in the courts, but throughout our society. The clearest and most pressing danger to the use of racial preferences in the many areas that they now are commonplace in our society is coming from the political process; the issue has been brought very publicly to the surface by the California 15. 115 S. Ct. 2038 (1995). 16. Missouri v. Jenkins, 115 S. Ct. 2038, 2055-56 (1995). 17. 498 U.S. 237 (1991). 18. Oklahoma City v. Dowell, 498 U.S. 237, 247-48 (1991). 19. Freeman v. Pitts, 503 U.S. 467, 490 (1992) (holding that district court may relinquish supervision of school district in incremental stages before full compliance with desegregation decree has been achieved).