A Case for Race-Consciousness

• This is an excerpt of an article that was originally published by the Columbia Law Review Copyright © 1991 The Columbia Law Review. 91 Colum. L. Rev. 1060

By: T. Alexander Aleinikoff
Professor of Law, University of Michigan Law School.

I want, in this Article, to consider and critique "colorblindness"...

    Specifically, I will argue that we are not currently a colorblind society, and that race has a deep social significance that continues to disadvantage blacks and other Americans of color.  While the legal strategy of colorblindness achieved great victories in the past, it has now become an impediment in the struggle to end racial inequality.  At the base of racial injustice is a set of assumptions -- a way of understanding the world -- that so characterizes blacks as to make persistent inequality seem largely untroubling.  A remedial regime predicated on colorblindness will have little influence at this deep level of social and legal consciousness because it cannot adequately challenge white attitudes or recognize a role for black self-definition.  In the pages ahead I will explain and justify this somewhat paradoxical claim that a norm of colorblindness supports racial domination.  I will conclude that in order to make progress in ending racial oppression and racism, our political and moral discourse must move from colorblindness to color-consciousness, from antidiscrimination to racial justice.

I.  COLORBLINDNESS AND RACE-CONSCIOUSNESS: CLARIFYING THE CATEGORIES

    In the colorblind world, race is an arbitrary factor -- one upon which it is doubly unfair to allocate benefits and impose burdens: one's race is neither voluntarily assumed nor capable of change.  For nearly all purposes, it is maintained, the race of a person tells us nothing about an individual's capabilities and certainly nothing about her moral worth.  Race-consciousness, from this perspective, is disfavored because it assigns a value to what should be a meaningless variable.  To categorize on the basis of race is to miss the individual.   n15

    Adhering to a strategy of colorblindness does not make race a prohibited classification.  Violations of the colorblind principle cannot be recognized and remedied without "noticing" the race of the harmed individual or racial group.  But, to be true to the model, race-conscious measures must be limited to identified instances of past  [*1064]  discrimination.   n16

    The debate over colorblindness and race-consciousness has usually appeared in the cases and literature discussing programs that give preferences in employment or other opportunities to nonwhites.  In now familiar terms, advocates of colorblindness characterize affirmative action programs as unjustifiably altering meritocratic standards and requiring a distribution of social goods that reflects the proportionate representation of minority groups in the population as a whole.   n17

    The presuppositions of supporters of affirmative action may be closer to those of their opponents than is usually recognized.  Many advocate "goals" of rough proportional representation upon the claim that since race is, or ought to be, an irrelevant factor in the distribution of the good in question, deviation from proportionate shares is the result either of present discrimination or the continuing effects of past discrimination.  That is, the justification for affirmative action programs is usually stated in terms of remedying past and present violations of the colorblind principle.  What separates most of the participants in the debate is not so much the goal of colorblindness, but rather differing views about the cause of current inequality and of the efficacy of race-blind or race-conscious remedies in reaching a colorblind future.   n18

     In this Article, I will use the term "race-consciousness" to apply to more than just "affirmative action" programs intended to help bring about a colorblind world or remedy past discrimination.   n19 There are  [*1065]  many other situations in which race qua race might be seen as relevant to the pursuit of a legitimate and important governmental goal.  These include: ensuring the presence of persons of color on juries;   n20 taking race into account in allocating radio and television licenses;   n21 seeking nonwhites to fill positions in social service agencies that deal largely with minority populations;   n22 requiring voting rules and districts that improve the chances of electing minority representatives;   n23 fostering integration by adopting race-based school assignment plans and housing programs;   n24 taking measures to integrate police forces;   n25 adding the works of minority authors to the "literary canon" taught to college students;   n26 and giving weight to the race of applicants for teaching positions in higher education.   n27 In each of these situations, the race-consciousness of the program may be justified in other than remedial (and colorblind) terms.   n28

II.  THE DIFFERENCE THAT RACE MAKES   n29
    We live in a world of racial inequality.  In almost every important  [*1066]  category, blacks as a group are worse off than whites.  Compared to whites, blacks have higher rates of unemployment, lower family incomes, lower life expectancy, higher rates of infant mortality, higher rates of crime victimization, and higher rates of teenage pregnancies and single-parent households.  Blacks are less likely to go to college, and those who matriculate are less likely to graduate.  Blacks are underrepresented in the professions, in the academy, and in the national government.   n30

    Of course there has been progress.  Comparing the situation of blacks half a century ago to their situation today shows a difference that is startling, and even encouraging, although the last decade evidences a slowing progress and some backsliding.  But when the comparison is made between whites and blacks today, it is impossible to ignore the deep and widening difference that race makes.   n31

    To say that race makes a difference means more than simply identifying material disadvantages facing people of color in contemporary America.  It also recognizes that race may have an influence on how members of society understand their worlds and each other, and how such understandings may serve to perpetuate racial inequalities in our society.  The next two sections pursue these psychological and cultural claims.

A.  Race and Cognition
    Race matters.  Race is among the first things that one notices about another individual.  To be born black is to know an unchangeable fact about oneself that matters every day.  "[I]n my life," wrote W. E. B. Du Bois in his autobiography Dusk of Dawn, "the chief fact has been race -- not so much scientific race, as that deep conviction of myriads of men that congenital differences among the main masses of human beings absolutely condition the individual destiny of every member of a group."   n32 To be born white is to be free from confronting one's race on a daily, personal, interaction-by-interaction basis.   n33 Being white, it has been said, means not having to think about it.  Understandably, white people have a hard time recognizing this difference.   n34 Most blacks have to overcome, when meeting whites, a set of assumptions older than this nation about one's abilities, one's marriageability, one's  [*1067]  sexual desires, and one's morality.  Most whites, when they are being honest with themselves, know that these racial understandings are part of their consciousness.

    Race matters with respect to the people we choose to spend time with or marry, the neighborhoods in which we choose to live, the houses of worship we join, our choice of schools for our children, the people for whom we vote, and the people we allow the state to execute.  We make guesses about the race of telephone callers we do not know and about persons accused of crimes.  While not every decision we make necessarily has a racial component, when race is present it almost invariably influences our judgments.  We are intensely -- even if subconsciously -- race-conscious.

    It is common to speak of racial attitudes as being based on "stereotypes" -- an incorrect or unthinking generalization applied indiscriminately to individuals simply on the basis of group membership.  From this perspective, stereotypes can be overcome by supplying more information about an individual or the group to which that individual belongs.

    But this explanation fails to recognize race-consciousness as an entrenched structure of thought that affects how we organize and process information.   n35 Social science research suggests that stereotypes serve as powerful heuristics, supplying explanations for events even when evidence supporting nonstereotypical explanations exists,   n36 and leading us to interpret situations and actions differently when the race of the actors varies.   n37 It is often more likely that our mental schema will influence how we understand new information than it is that the new information will alter our mental schema.   n38

    A troubling example can be found in Larry P. by Lucille P. v. Riles,   n39 a case challenging the use of IQ tests that disproportionately assigned black children to special classes for the "educable mentally retarded." In discussing the expert testimony presented on the adequacy of the tests, the court of appeals observed:
Since the 1920's it has been generally known that black persons perform less well than white persons on the standardized  [*1068]  intelligence tests.  IQ tests had been standardized so that they yielded no bias because of sex.  For example, when sample tests yielded different scores for boys and girls, the testing experts assumed such differences were unacceptable and modified the tests so that the curve in the standardization sample for boys and girls was identical.  No such modifications on racial grounds has ever been tried by the testing companies.   n40
 
    The testing companies received two sets of data and chose to act on just one.  Their assumptions made one set of data "surprising" and the other "expected" or "natural."   n41

    Because cognitive racial categories predispose us to select information that conforms to existing categories and to process information in such a way that it will fit into those categories, they are self-justifying and self-reinforcing.  And because we adopt racial categories more through a process of cultural absorption than rational construction, we are likely to be unaware of the role that the categories play in the way we perceive the world.  

    This deeply imbedded race-consciousness has a distressing effect on discourse between the races.  In many ways, whites and blacks talk past each other.  The stories that African-Americans tell about America -- stories of racism and exclusion, brutality and mendacity   n45 -- simply do not ring true to the white mind.  Whites have not been trained to hear it, and to credit such accounts would be to ask whites to give up too much of what they "know" about the world.  It would also argue in favor of social programs and an alteration in power relations that would fundamentally change the status quo.  White versions of substantial progress on racial attitudes are also likely to ring hollow for many blacks.   n46 One might see an equality of missed communication here.  But there is actually a great inequality because it is the white version that becomes the "official story" in the dominant culture.
 

B.  The Power of Definition
    In our society, race has not been a benign mode of classification.  The designation of one's race has had a double function, both defining social categories and assigning characteristics to members of those categories.   n47 The predominant power of social and cultural definition has, from the start, been exercised by and for whites. The theme of invisibility that permeates black literature portrays white erasure of black attempts at self-definition.   n48 Listen to Audre  [*1070]  Lorde:

. . . I can recall without counting
eyes
cancelling me out
like an unpleasant appointment
postage due
stamped in yellow red purple
any color
except Black   n49
 
Blacks are "invisible" not in the sense that whites do not see them; they are "invisible" in the sense that whites see primarily what a white dominant culture has trained them to see.   n50 In a curious yet powerful way, whites create and reflect a cultural understanding of blackness that requires little contribution from blacks.  The dominant and dominating story excludes or ignores black representations of blackness not out of vindictiveness or animus but because the black stories simply do not register.   n51 Robert Berkhofer's description of the process by which whites understand American Indians applies here: "preconception became conception and conception became fact."   n52.. .

    Continued white ignorance of blacks and lack of contact in daily life makes white understandings of race difficult to alter.   n54 Whites are only dimly aware of how blacks live or what it means to be black in America.  Despite attempts to bring African-American history into the classroom, most whites do not understand the role of black slavery in the economic development of the United States, nor are they familiar with major trends in black political and social thought, or even the contributions of Frederick Douglass, W. E. B. Du Bois, and Malcolm X.   n55 Absence of knowledge is compounded by physical and social segregation.   n56 Blacks and whites rarely get to know each other in neighborhoods, schools, or churches; and interracial friendships remain surprisingly rare.  As a result, most of what a white person in America  [*1072]  knows about blacks is likely to have been learned from white family, friends, or the white-dominated media.

    That the white-created image of African-Americans should remain largely unchallenged by black conceptions is troubling not only because the white version reflects stereotypes, myths, and half-truths, but also because of the role the white definition plays in explaining the historical treatment and current condition of blacks.  Given strong incentives to absolve whites and blame blacks for existing social and economic inequalities, the white story about blacks has never been flattering.  As Kimberle Crenshaw has powerfully argued, when the white image of blacks is combined with other American stories -- such as equality of opportunity -- it becomes "difficult for whites to see the Black situation as illegitimate or unnecessary." It works this way:

    Believing both that Blacks are inferior and that the economy impartially rewards the superior over the inferior, whites see that most Blacks are indeed worse off than whites are, which reinforces their sense that the market is operating "fairly and impartially"; those who should logically be on the bottom are on the bottom.  This strengthening of whites' belief in the system in turn reinforces their beliefs that Blacks are indeed inferior.  After all, equal opportunity is the rule, and the market is an impartial judge; if Blacks are on the bottom, it must reflect their relative inferiority.   n57

    In sum, racial inequality has many faces.  Social and economic statistics paint a clear and distressing picture of the differences among racial groups.  Yet other inequalities are less obvious, based on nearly inaccessible and usually unchallenged assumptions that hide power and explain away domination.  The next section examines alternative legal responses to this complex web of inequalities based on race...
 
 
III.  From Colorblindness to Race-Consciousness
    Colorblindness may seem to be a sensible strategy in a world in which race has unjustly mattered for so long.  Yet the claim that colorblindness today is the most efficacious route to colorblindness tomorrow has always been controversial.  Justice Blackmun's paradoxical aphorism in Bakke reflects the usual counterclaim: "In order to get beyond racism, we must first take account of race.  There is no other way.  And in order to treat some persons equally, we must treat them differently."   n90 To those who agree with Blackmun, the invalidation of Richmond's set-aside program in Croson amply demonstrates how a demand for means that are colorblind will retard the remedying of racial inequality.

    The claim I wish to press here is different from Blackmun's familiar stance in the affirmative action debate.  I will argue in this section that a legal norm of colorblindness will not end race-consciousness; rather, it will simply make the unfortunate aspects and consequences of race-consciousness less accessible and thus less alterable.  Furthermore, colorblind strategies are likely to deny or fail to appreciate the contribution that race-consciousness can make in creating new cultural narratives that would support serious efforts aimed at achieving racial justice.

Before these claims can be made, however, two varieties of colorblindness should be distinguished.  The first, which I will call "strong colorblindness," argues that race should truly be an irrelevant, virtually unnoticed, human characteristic.  Richard Wasserstrom has described this "assimilationist ideal":

    [A] nonracist society would be one in which the race of an individual would be the functional equivalent of the eye color of individuals in our society today.  In our society no basic political rights and obligations are determined on the basis of eye color.  No important institutional benefits and burdens are  [*1079]  connected with eye color.  Indeed, except for the mildest sort of aesthetic preferences, a person would be thought odd who even made private, social decisions by taking eye color into account.   n91
 
The second type, "weak colorblindness," would not outlaw all recognition of race, but would condemn the use of race as a basis for the distribution of scarce resources or opportunities and the imposition of burdens.  Under "weak colorblindness," race might function like ethnicity: an attribute that could have significance for group members, and one that society as a whole could recognize, but not one upon which legal distinctions could be based.  Furthermore, individuals would be able to choose how important a role race would play in their associations and identifications, but their race would not be used by others to limit their opportunities or define their identities.  Thus, college courses on "African-American literature" might well be permissible under a weak colorblindness regime, but such a regime would not tolerate allocating places in the class based on race or allowing race to be used as a factor in the choice of an instructor.  In the sections that follow, I will argue that strong colorblindness is impossible and undesirable, and that weak colorblindnes -- although perhaps able to be implemented as a legal strategy -- is an inadequate response to current manifestations of racial inequality.

A.  Masking Race-Consciousness.
    It is apparently important, as a matter of widespread cultural practice, for whites to assert that they are strongly colorblind, in the sense that they do not notice or act on the basis of race.  One can see this at work in such statements as: "I judge each person as an individual." Of course, it cannot be that whites do not notice the race of others.  Perhaps what is being said is that the speaker does not begin her evaluation with any preconceived notions.  But this too is difficult to believe, given the deep and implicit ways in which our minds are color-coded.  To be truly colorblind in this way, as David Strauss has shown, requires color-consciousness: one must notice race in order to tell oneself not to trigger the usual mental processes that take race into account.   n92

    The denial of race-consciousness occasioned by the desire to be strongly colorblind is described in a recent study of a desegregated junior high school by psychologist Janet Schofield.  She reports that teachers, apparently concerned that acknowledging racial awareness would be viewed as a sign of prejudice, claimed not to notice the race of their students.  In pursuit of colorblindness, teachers rarely used the words "white" or "black," and avoided racial topics and identifications in  [*1080]  class.   n93

    This act of denial is troubling not only because it distorts reality, but also because it will make less accessible the ways in which color-consciousness influences our understanding of the world and of others.   n94 Strong colorblindness will perpetuate the white image of blacks by rendering irrelevant the kind of race-based discussion and data necessary for a serious critique of white definitions.  Schofield's study documents how teachers' desires to act in a colorblind fashion harmed the educational experience by ignoring or denying race when it would have been appropriate to notice it:
    [One] teacher included George Washington Carver on a list of great Americans from which students could pick individuals to learn about but specifically decided not to mention he was black for fear of raising racial issues.  In the best of all worlds, there would be no need to make such mention, because children would have no preconceptions that famous people are generally white.  However, in a school where one white child was surprised to learn from a member of our research team that Martin Luther King was black, not white[!], it would seem reasonable to argue that highlighting the accomplishments of black Americans and making sure that students do not assume famous figures are white is a reasonable practice.   n95

    Certainly such conduct creates possibilities for serious miscommunication.  There is significant evidence of cultural differences between whites and blacks.  Although the relative contributions of race and class to these differences remain in dispute and wide variations within groups occur, few doubt that race plays a substantial, independent role.   n96 Thomas Kochman has suggested a number of ways in which modes and styles of communication differ widely between inner-city blacks and middle class whites,   n97 producing substantial misunderstanding when forms of argumentation and presentations of self are misread.  An ethnographic study by Shirley Brice Heath notes significant differences in the kinds and number of questions that black and white children are asked at home.  When white teachers, unaware of such differences, ask questions in a way that conforms to white middle-class practice, they unwittingly disadvantage black school children.   n98

    But the problem runs deeper than the level of miscommunication.   [*1081]  Whites believe that they can act in a colorblind fashion merely by acting as they always have.  Colorblindness puts the burden on blacks to change; to receive "equal" treatment, they must be seen by whites as "white."   n99 Hence, the "compliment" that some whites pay to blacks: "I don't think of you as black."   n100 Colorblindness is, in essence, not the absence of color, but rather monochromatism: whites can be colorblind when there is only one race -- when blacks become white.

B.  Local Knowledge: Race-Consciousness as Cultural Critique.
    Strong colorblindness, I have argued, is unlikely to produce the result it promises -- a world in which race does not matter.  In this section, I want to make the case for race-consciousness more direct by focusing on the benefits of race-consciousness in undermining and shifting deep cultural assumptions and ultimately, perhaps, making progress in overcoming racism.  In presenting these claims, I hope also to undermine the case for weak colorblindness.  To be effective, strategies for attacking racism may well demand affirmative race-conscious governmental policies.

    Clifford Geertz, in a collection of his essays entitled Local Knowledge, has stated that:
To see ourselves as others see us can be eye-opening.  To see others as sharing a nature with ourselves is the merest decency.  But it is from the far more difficult achievement of seeing ourselves amongst others, as a local example of the forms human life has locally taken, a case among cases, a world among worlds, that the largeness of mind, without which objectivity is self-congratulation and tolerance a sham, comes.   n101
    Colorblindness operates at Geertz's level of "merest decency." It begins and ends with the observation that there is something, under the skin, common to all human beings.  I do not want to discount the deep humanism underlying this perspective.  Indeed, it is a significant improvement over the racist ideologies that have been prevalent throughout United States history and that have denied the "inner" equality of the races.  But Geertz clearly seeks more than this; he would reorient the usual hierarchical relationship between dominant and subordinate cultures by rotating the axis through its center point, making the vertical  [*1082]  horizontal.  This shift requires two related transformations: the first is to appreciate the contingency, the nonuniversalism of one's own culture -- to view it as an example of "local knowledge;" the second is to recognize and credit the "local knowledges" of other groups.  Of course, these two efforts are related.  By valorizing the dominated, one is likely to cast doubts on the dominant group's characterizations or definition of the dominated group, which, in turn, tells us something new about the dominant group as well.

    My claim outlined in the pages that follow is that race-consciousness can aid in these cultural transformations...

    Rotating the axis helps us to be open to other accounts and perspectives, and in doing so it reminds us of the fictional or constructed nature of "local knowledges" -- including our own.  Once white Americans shed the false assumption that "they know all they need to know" about African-Americans,   n105 they will begin to learn as much about themselves as about others.   n106

1.  Understanding Domination.
    The American Negro has the great advantage of having never believed that collection of myths to which white Americans     cling. . . . n107 -- James Baldwin

"[T]he quickest way to bring the reason of the world face to face [with white racism]," Du Bois wrote, "is to listen to the complaint of those human beings today who are suffering most from white attitudes,  [*1084]  from white habits, from the conscious and unconscious wrongs which white folk are today inflicting on their victims."   n108 Du Bois's suggestion is a persistent theme in recent nonmajority scholarship.  Mari Matsuda, in her sympathetic critique of the Critical Legal Studies movement, has urged legal scholars to "look to the bottom" to discover the "distinct normative insights" of "victims of racial oppression."   n109 Catharine MacKinnon has argued that "the standpoint from which legal method has been designed and injuries have been defined . . . has not been women's standpoint"; when one "[d]efin[es] feminism in a way that connects epistemology with power as the politics of women's point of view," a "whole shadow world of previously invisible silent abuse has been discerned."   n110

    The claim here is limited, but important.  One need not believe that subordinated groups hold world views thoroughly differentiated from the dominant culture in order to give credit to the claim that the views of subordinated groups on the extent and nature of subordination are likely to differ from those of majority groups.  This is so for a number of reasons.

    Dominant groups may have neither the inclination nor the ability to be fully aware of their domination.  Dominant groups generally do not consider themselves to be oppressive, particularly in a society in which tolerance for diversity is valued, and they can provide descriptions of themselves and the disadvantaged that explain inequality as either justified or natural.  To the extent that these descriptions effectively absolve dominant groups of responsibility for inequality, and therefore from bearing any of the costs of ameliorating inequality, there is little motivation for the dominant culture to question them.

    Furthermore, the dominant culture's conceptions of the dominated are often not explicit.  They are likely to be rooted, as Du Bois notes, in "long followed habits, customs, and folkways; [in] subconscious trains of reasoning and unconscious nervous reflexes."   n111 These assumptions and mental structures, as noted above, may well have a significant influence on conduct and attitudes, yet they are rarely subjected to careful scrutiny because they seem so natural, so much a part of us.   n112

     [*1085]  Finally, since dominant groups are not the direct victims of their acts toward dominated groups, they may underestimate the burdens suffered by the dominated groups.  This problem is compounded if dominant and dominated groups inhabit separate geographical and social spaces, so that the extent and harms of domination remain largely hidden from the dominant groups....

2.  Recognizing the Dominated.
Finally, recognizing race validates the lives and experiences of those who have been burdened because of their race.  White racism has made "blackness" a relevant category in our society.  Yet colorblindness seeks to deny the continued social significance of the category, to tell blacks that they are no different from whites, even though blacks as blacks are persistently made to feel that difference.  Color-consciousness allows for recognition of the distinct and difficult difference that race has made; it facilitates white awareness of the efforts of African-Americans to describe and examine that difference.  This is not simply the telling of a story of oppression.  Color-consciousness makes blacks subjects and not objects, undermining the durability of white definitions of "blackness." It permits recognition of  [*1088]  the strength and adaptive power of a black community able to survive slavery and oppression;   n129 and it acknowledges the contributions of black culture -- not simply as windows on "the race question" but as distinct (if varied) voices and traditions, worthy of study in their own right...  n130

3.  Weak Colorblindness and Its Costs.
    It is common for advocates of affirmative action to point out that a legal strategy dedicated to "equality of opportunity" is likely to replicate deeply imbedded inequalities.  The familiar metaphor is of a race between two runners, one of whom starts many yards back from the starting line, or is encumbered by ankle weights.   n132 Color-conscious policies are said to remove the advantage that has for several centuries been granted to whites.  The simplicity of this argument should not disguise its soundness or moral power.   n133  [*1089]  Unfortunately, however, affirmative action programs based on the objective of overcoming past societal discrimination are deemed to run afoul of the Court's model of weak colorblindness.   n134 To the extent race conscious policies help ameliorate material disadvantage due to societal discrimination, the negative injunction of weak colorblindness imposes heavy costs.

    Beyond this familiar terrain in the affirmative action debate, there are other advantages to race-conscious programs that also call into question the adequacy of weak colorblindness.  As Justice Stevens has noted, there are a number of situations in which it seems eminently reasonable for government decision makers to take race into account.   n135 For example: in a city with a recent history of racial unrest, the superintendent of police might reasonably conclude that an integrated police force could develop a better relationship with the community and thereby do a more effective job of maintaining law and order than a force composed only of white officers.   n136
 
    Similar claims could be made about integrated civil service and school administrations.  That situations exist that could benefit from race-conscious policies should hardly be surprising, given the prominent role that race has played in allocating benefits and burdens throughout American history.  Indeed, Justice Powell's famous "diversity" argument in Bakke   n137 implicitly acknowledges the reasonableness of some manner of color-conscious decision making in a world in which race has mattered and continues to matter.  To the extent that weak colorblindness makes these forms of race-consciousness problematic, it is simply nearsighted social policy...

    Universities need more than African-American literature classes; they need a diversity of students in all literature classes, and not simply to show white students that students of color can perform as well as white students,   n144 but also to help all  [*1091]  students become more self-conscious of the underlying assumptions with which they approach the world.   n145 To be sure, there are risks.  Given the power of imbedded ways of thinking, new information may simply be "processed" in accordance with pre-existing views; or, white students may make the error of assuming that comments by black students express "the" black perspective.  But to students and faculty open to a Geertzian moment, the intellectual rewards are enormous.
 
C.  Two Objections to Race Consciousness

...[An] objection that figures prominently in the attack on affirmative action, is that race-consciousness is self-defeating to the extent that it reinforces rather than undermines racism.   n146 Affirmative action, it is argued, may have this effect because it inevitably creates the impression of a lowering of standards in order to benefit minorities.  Furthermore, as Shelby Steele argues, the "implication of inferiority in racial preferences" has a demoralizing effect on blacks, contributing to "an enlargement of self doubt."   n147

    One response is that we ought to run this claim by those who have been the victims of racism.  Despite assertions by whites that race-conscious programs "stigmatize" beneficiaries, blacks remain overwhelmingly in favor of affirmative action.   n148 Would we not expect blacks to be the first to recognize such harms and therefore to oppose affirmative action if it produced serious stigmatic injury?  It might be argued, however, that individual blacks are willing to participate in affirmative action programs because of the direct benefits they receive, yet those blacks who are not beneficiaries suffer the stigmatic harm without the compensating gains.  But, again, one would expect that if  [*1092]  this were the case, then blacks as a class would oppose affirmative action since the vast majority of blacks are not beneficiaries of affirmative action.  Furthermore, Randall Kennedy provides a convincing argument that affirmative action, on balance, is more likely to reduce stigma than to impose it:

   It is unrealistic to think . . . that affirmative action causes most white disparagement of the abilities of blacks. Such disparagement, buttressed for         decades by the rigid exclusion of blacks from educational and employment opportunities, is precisely what engendered the explosive crisis to which affirmative action is a response. . . . In the end, the uncertain extent to which affirmative action diminishes the accomplishments of blacks must be balanced against the stigmatization that occurs when blacks are virtually absent from important institutions in the society. n149

    Confident measures of the costs and benefits of affirmative action do not exist.  Given the material gains afforded minorities by race-conscious programs and the fact that these gains are likely, as Kennedy notes, to counteract "conventional stereotypes about the place of the Negro,"   n150 I would put the burden of proof on those who claim that affirmative action contributes more to racism than it diminishes racism.  Significantly, the case for race-consciousness suggested here would affect the evaluation of the costs and benefits because it would count as one of the benefits -- as colorblindness cannot -- the gains to white society of increased association with minorities and greater awareness of nondominant cultures.

IV.  FROM ANTIDISCRIMINATION TO RACIAL JUSTICE
    Discussion about the appropriateness of race-conscious measures is but the doctrinal manifestation of a broader debate regarding the animating principle of race discrimination law.  The strategy of colorblindness follows from an understanding of discrimination law that views the use of racial classifications as morally and politically objectionable.  In contrast, support for broad race-conscious policies is usually imbedded in a description of race discrimination law as aimed at ending the second-class citizenship of African-Americans and other subordinated minorities...

    Starting fresh, it appears obvious that an antidiscrimination model that sees the use of racial classifications as the central problem to be addressed ill-fits this society's current racial situation.  There is no symmetry in either the use of racial classifications or the experiences of different racial groups.  To see the problem of race discrimination as the problem of using racial criteria is to wrench legal theory out of social  [*1114]  reality.   n243...

    The choice among race discrimination law principles is, in the deepest sense, moral and political.  Arrayed on the side of the antidiscrimination-as-colorblindness model is the knowledge of the terrible wrongs that color-consciousness has wrought in our history, the ending of legal segregation effectuated by colorblindness, an ideology of individualism that stresses evaluation and rewards based on individual effort and personal characteristics over which a person has control, and the antagonisms that race-based preferences may breed.  These, of course, are not trivial arguments, which suggests why colorblindness has had such significant appeal.   n247

    But the claim that race should be ignored would be far more persuasive  [*1115]  if the difference that race had made in the past had been overcome.  What cannot be denied -- even if it is often ignored -- is that blacks, as a class, have never attained economic or social equality with whites.  Reconstruction ended long before it achieved its (some would say limited   n248 ) set of goals.  The "Second Reconstruction" of the 1960s wiped away some of the additional legal insults added by the race hysteria of the late nineteenth century, but it did little to fundamentally alter the material well-being of blacks.  The narrowing of the economic gap between blacks and whites that occurred in the 1950s and 1960s -- due primarily to the overall growth in the economy -- stalled by the middle of the 1970s   n249 and did not improve during the Reagan years.   n250 A prodigious study sponsored by the National Academy of Sciences has recently concluded that the United States faces "an unfinished agenda: many black Americans remain separated from the mainstream of national life under conditions of great inequality."   n251..

    There are strong reasons for continuing the struggle to fulfill the initial goals  [*1116]  of race discrimination law.  Whether phrased as "anti-caste,"   n254 "anti-group disadvantage,"   n255 or "anti-subjugation,"   n256 the task remains where it began: the ending of second class status of an historically oppressed group and the achieving of racial justice.

    There are two interrelated aspects to this agenda for race discrimination law.  The first supports programs that would produce material improvements in the lives of black people: programs promoting jobs, medical care, and decent housing.  Such programs, it should be noted, need not be race-based.  A "racial justice" perspective need not entail explicitly race-conscious policies.   n257 It seems clear, however, that a racial justice perspective is friendly to race-conscious policies directed at overcoming the effects of past and present societal discrimination.  The set-aside programs in Fullilove and Croson are modest examples of the kind of state intervention that is needed.

    The second aspect of a racial justice perspective is an attack on the set of beliefs that makes existing inequalities untroubling.  What must be addressed is not just old-fashioned racism,   n258 but also the deeply ingrained mental structures that categorize and define race to the disadvantage of blacks and other nonwhite groups.   n259 As suggested above, altering the image of blacks in the white mind requires paying  [*1117]  attention to, and crediting, black voices, and to refashioning institutions in ways that will allow those voices to be heard.  Here race-conscious programs may be crucial...
[*1121] 

V.  CONCLUSION: TOWARD AN INCLUSIVE AMERICAN STORY
    In the current political and social climate, a call for color-consciousness poses real risks.  For several centuries of American history, noticing race provided the basis for a caste system that institutionalized second-class status for people of color.  It was precisely this oppressive use of race that colorblindness sought to overcome.  Furthermore, central to white opposition to affirmative action is the belief that blacks have attained equality of opportunity, and therefore any assistance directed to minorities qua minorities affords them an undeserved benefit and an unfair advantage.   n279...

    [But] Race-neutral strategies simply postpone our society's inevitable rendezvous with its history of racism.  Constant liminal and subliminal messages of the difference that race makes take their toll -- no matter what justificatory rhetoric enshrouds official governmental action -- and will ultimately breed a powerful claim of enough-is-enough.  Such a call can take the form of a national commitment to end racial injustice, or it can take the form of "by any means necessary"   n285 in the minds and hands of the victims of discrimination who know that colorblindness is a descriptive lie and a normative mistake.

    Race-conscious programs alone will not end racism.  At best, they represent a small step toward changing social relations and structures of thought and perception.  What is needed is direct, self-conscious scrutiny of the way we think and of the assumptions about race that each of us holds and upon which we act.  Attention to black constructions of reality can provide a counterbalance to the white construction of blacks in the white mind...

    Racial equality will not be attainable until American myths include  [*1125]  blacks as full members and equal partners in society.   n291 A new set of stories is needed to provide the impetus for self and social reexamination, and to provide the foundation upon which support for race-conscious measures can be based.  For example, we might develop an historical narrative not about those who chose America, but rather about those who built America.  This account would be about slaves and free blacks in the South in the nineteenth century and blacks in the twentieth century who migrated to work in Northern factories; about women who worked in the factories and (unnoticed and uncompensated) in the home; and about Chinese laborers who built the railroads, Mexican workers who harvested the crops, and European immigrants who built the great cities of the East.  Such a narrative would acknowledge the deep and lasting contributions of African-Americans and other groups usually marginalized in the traditional account and would focus attention on the injustice of continued inequalities founded on racial oppression.   n292

    Blacks as blacks have had an unique history in this country.  It is a history that whites and blacks confront every day and will continue to confront into the indefinite future.  In pretending to ignore race, this society denies itself the self-knowledge that is demanded for eradicating racism and achieving racial justice.

FOOTNOTES:

n1 A. Rich, Disloyal to Civilization: Feminism, Racism, Gynephobia, in On Lies, Secrets, and Silence 275, 306 (1979).  Rich's Comment is made specifically about "white feminists," but I think the statement is clearly generalizable -- hence my substitution of "whites" for "white feminists."

n2 Malcolm X, quoted in P. Goldman, Death and Life of Malcolm X 168 (2d ed. 1979).

n3 448 U.S. 448 (1980).

n4 Id.

n5 163 U.S. 537, 559 (1896) (Harlan, J., dissenting).

n6 109 S. Ct. 706 (1989). See Devins, Affirmative Action after Reagan, 68 Tex. L. Rev. 353, 355-57 (1989).

n7 110 S. Ct. 2997 (1990).

n8 Id. at 3008-09.

n9 See Fried, Metro Broadcasting, Inc. v. FCC: Two Concepts of Equality, 104 Harv. L. Rev. 107, 126 (1990). White had also voted to sustain the federal set aside statute in Fullilove.

n10 Justice Stevens was the only Justice to join the judgment of the Court in Croson, 109 S. Ct. at 730 (concurring in part and concurring in the judgment), and the majority opinion in Metro Broadcasting, 110 S. Ct. at 3028 (concurring).  Stevens's votes can be explained as turning on two considerations: (1) because race is so rarely relevant to a legitimate governmental purpose, race-based statutes must be subjected to close scrutiny, Fullilove, 448 U.S. at 537 (Stevens, J., dissenting); and (2) race-based policies may pursue other than remedial grounds, Croson, 109 S. Ct. at 730-31 & n.1; accord Metro Broadcasting, 110 S. Ct. at 3028.

n11 See S. Exec. Rep. 32, 101st Cong., 2d Sess. 23-25 (1990) (statement by nominee Souter that definition of scope of congressional power to adopt race-conscious "remedies" remains to be worked out).

n12 Fiss, Groups and the Equal Protection Clause, 5 Phil. & Pub. Aff. 107, 108 (1976).

n13 163 U.S. 537, 559 (1896) (Harlan, J., dissenting) ("Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.").  For a revisionist reading of Harlan's dissent, see Tribe, In What Vision of the Constitution Must the Law be Color-blind?, 20 J. Marshall L. Rev. 201, 203 (1986) ("color-blind ideal . . . was only shorthand for the concept that the Fourteenth Amendment prevents our law from enshrining and perpetuating white supremacy").

n14 U.S. Dep't of Just., Off. of Legal Pol'y, Rep. to the Att'y Gen., Redefining Discrimination: "Disparate Impact" and the Institutionalization of Affirmative Action 4 (Nov. 4, 1987) [hereinafter DOJ Report]; see also Brest, The Supreme Court 1975 Term -- Foreword: In Defense of the Antidiscrimination Principle, 90 Harv. L. Rev. 1, 6 (1976) ("The antidiscrimination principle disfavors race-dependent decisions and conduct, at least when they selectively disadvantage the members of a minority group"); Strauss, The Myth of Colorblindness, 1986 Sup. Ct. Rev. 99, 116-17 ("[I]t is easy to see why affirmative action is . . . in tension with the prohibition against discrimination: affirmative action relies on racial generalizations, but the point of the prohibition against discrimination is precisely to forbid racial generalizations.").

n15 Gary Peller puts this idea in a broader intellectual and social context:
The meaning of race has been grafted into other central cultural images of progress, so that the transition from . . . race consciousness to race neutrality mirrors movements from myth to enlightenment, from ignorance to knowledge . . . and most importantly, the historical self-understanding of liberal society as representing the movement from status to individual liberty.
Peller, Race Consciousness, 1990 Duke L.J. 758, 774.

n16 There is a surface logic here that falls apart on analysis.  No doubt it does make sense to notice race even in a colorblind world in order to be able to remedy violations of the norm: if a black is denied a job because of her race, the plaintiff must show her race and the race of the person hired to prove the violation; and to remedy the violation requires that relief be directed to her because of her race.  This reasoning cannot, however, explain the remedial programs the Court seems willing to permit because the beneficiaries of such programs are not necessarily the victims of the discrimination.  See Sullivan, Sins of Discrimination: Last Term's Affirmative Action Cases, 100 Harv. L. Rev. 78, 92-94 (1986); Hazard, Permissive Affirmative Action for the Benefit of Blacks, 1987 U. Ill. L. Rev. 379, 381 (1987). Justice White's opinion for the Court in Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 578-82 (1984), created panic in the civil rights community by hinting at the narrower view of justifiable remedial uses of race, but the Court -- at least in Croson -- appears to have rejected that stance.  City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 717-19 (1989) (opinion of O'Connor, J.) (apparently affirming Fullilove).  The Court is not unanimous on this point, however, since Justices Kennedy and Scalia seem open to the claim that race-conscious measures may only be used to provide remedies to specific victims of discrimination.  Id. at 734 (Kennedy, J., concurring in part and concurring in the judgment); id. at 735 (Scalia, J., concurring in the judgment).

n17 See Abram, Affirmative Action: Fair Shakers and Social Engineers, 99 Harv. L. Rev. 1312, 1312-13 (1986).

n18 See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1978) (Blackmun, J., dissenting) ("In order to get beyond racism, we must first take account of race.  There is no other way.").

n19 Stephen Carter adopts the word "racialist" to designate color-conscious decisions (as opposed to "racist," which he uses to refer to virulent forms of race-consciousness).  Carter, When Victims Happen to be Black, 97 Yale L.J. 420, 430 (1988). Paul Brest uses the term "race-dependent decisions" (which may or may not be based on an intent to harm blacks).  Brest, supra note 14, at 6.  "Race-consciousness," to me, goes beyond identifying whether or not race played a noticeable role in reaching a particular decision.  It refers to a precognitive stance, a set of assumptions and mental filters that channel and influence what we label a problem, how we perceive it, and how we gather and analyze data.  My usage is close to Charles Lawrence's "unconscious racism." Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 322-23 (1987). However, I, like Carter, would reserve a more specific meaning for "racism." See Carter, supra, at 433-39.

n20 See Holland v. Illinois, 110 S. Ct. 803, 809 (1990).

n21 See Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3009 (1990).

n22 A State of Michigan official has reported to me that state social service agencies informally pursue such policies.

n23 See Voting Rights Act, 42 U.S.C. ß  1973(b) (1990).

n24 See United States v. Starrett City Assocs., 840 F.2d 1096, 1101 (2d Cir.), cert. denied, 488 US 946 (1988).

n25 City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 731 n.2 (Stevens, J., concurring).

n26 See generally Redefining American Literary History (A.L.B. Ruoff & J. W. Ward eds. 1990).

n27 See Matsuda, Affirmative Action and Legal Knowledge: Planting Seeds in Plowed-Up Ground, 11 Harv. Women's L.J. 1, 4 (1988).

n28 This is hardly a novel suggestion.  See, e.g., Sandalow, Racial Preferences in Higher Education: Political Responsibility and the Judicial Role, 42 U. Chi. L. Rev. 653, 682-89 (1975).

n29 This phrase was sparked by Catharine MacKinnon's claim that "[o]ne of the most deceptive antifeminisms in society, scholarship, politics, and law is the persistent treatment of gender as if it truly is a question of difference, rather than treating the gender difference as a construct of the difference gender makes." C. MacKinnon, Introduction, in Feminism Unmodified 1, 8-9 (1987).  However, while I agree with her assessment of sex discrimination law, I would turn it around for race-discrimination law: one of the most deceptive antiracial equality principles in society, scholarship, politics, and law is the persistent treatment of race as if there is no difference that need be noticed between the races, rather than seeing the difference that race makes.

n30 See A Common Destiny: Blacks & American Society 3-32 (G. Jaynes & R. Williams, Jr. eds. 1989) [hereinafter A Common Destiny].

n31 For data to support the assertions in the preceding two paragraphs, see id. at 122-23, 278, 280-81, 293, 295, 302-03, 399, 416-17, 465, 524, 530.

n32 W. E. B. Du Bois, Dusk of Dawn 139 (1940).

n33 See Freeman, Racism, Rights and the Quest for Equality of Opportunity: A Critical Legal Essay, 23 Harv. C.R.-C.L. L. Rev. 295, 357-58 (1988).

n34 Much as men have a difficult time understanding the routine and ever-present fears that women have for their physical safety.

n35 See Hamilton & Trolier, Stereotypes and Stereotyping: An Overview of the Cognitive Approach, in Prejudice, Discrimination, and Racism 127 (J. Dovidio & S. Gaertner eds. 1986) [hereinafter Prejudice], and studies cited therein.

n36 See, e.g., Bodenhausen & Wyer, Effects of Stereotypes on Decision Making and Information-Processing Strategies, 48 J. Personality & Soc. Psychology 267, 267-82 (1985).

n37 See, e.g., Sagar & Schofield, Racial and Behavioral Cues in Black and White Children's Perceptions of Ambiguously Aggressive Acts, 39 J. Personality & Soc. Psychology 590, 590-98 (1980).

n38 Note that the usual response to another's use of a stereotype is that "not all Xs are Ys." The response does not deny (or correct) the stereotype; by stating an exception to the stereotype, it implicitly affirms it.

n39 793 F.2d 969 (9th Cir. 1984).

n40 Id. at 975-76; see generally S. Gould, The Mismeasure of Man (1981).

n41 Cf. MacKinnon's attack on the use of the term "stereotype" as negating the reality of the oppression of women.  C. MacKinnon, Women, Self-Possession, and Sport, in Feminism Unmodified, supra note 29, at 118-19.

n42 Lawrence, supra note 19, at 339.

n43 Goldberg, MAP Does More Harm Than Good, Res Gestae, Feb. 8, 1989, at 3, col. 1.

n44 Of course, this assumption/construction process is not limited to racial matters.  We all have been the victims of assumptions preceding data.  I recall a weekend morning walking down a law school corridor wearing an army jacket that my father had obtained in Australia during World War II.  A colleague commented, "I bet that's an Israeli army jacket."

n45 For a concise version of the story, see Delgado, Derrick Bell and the Ideology of Racial Reform: Will We Ever Be Saved? (Review Essay), 97 Yale L.J. 923, 928-47 (1988).

n46 As Thomas Pettigrew notes, white ideas about progress are, counter-intuitively, supported by segregation.  Few whites spend much time with blacks, and those blacks who are most visible -- particularly to elite whites -- are successful.  Pettigrew, New Patterns of Racism: The Different Worlds of 1984 and 1964, 37 Rutgers L. Rev. 673, 686 (1985).

n47 The content and meaning of "blackness" has changed over time, but has been deeply derogatory in all historical eras.  See G. Fredrickson, The Black Image in the White Mind xix, 325-32 (1971).

n48 See, e.g., R. Ellison, Invisible Man 4 & passim (1952); Morrison, Unspeakable Things Unspoken: The Afro-American Presence in American Literature, 28 Mich. Q. Rev. 1, 11-12 (1989); Williams, The Obliging Shell: An Informal Essay on Formal Equal Opportunity, 87 Mich. L. Rev. 2128, 2140-43 (1989).

n49 A. Lorde, To the Poet Who Happens to Be Black and the Black Poet Who Happens to Be a Woman, in Our Dead Behind Us 6-7 (1986).

n50 See B. Hook, Ain't I a Woman: Black Women and Feminism 51-86 (1981); Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1358 (1988) ("The most significant aspect of Black oppression seems to be what is believed about Black Americans, not what Black Americans believe.").

n51 Cf. Lears, The Concept of Cultural Hegemony: Problems and Possibilities, 90 Am. Hist. Rev. 569, 577 (1985) ("As Gramsci understood, the hegemonic culture depends not on the brainwashing of the 'masses' but on the tendency of public discourse to make some terms of experience readily available to consciousness while ignoring or suppressing others.").

n52 R. Berkhofer, The White Man's Indian 71 (1978).

n53 F. Fanon, Black Skin, White Masks 109, 113-14 (C. Lammarkmann trans. 1967).

n54 This is not to say that simply putting white and black folks together will end discrimination.  As social science studies have suggested, such contacts may actually increase prejudice unless the contact occurs under particular conditions -- such as when there are superordinate goals or institutional support in the form of superordinate norms and sanctions.  For a review of the "contact" literature, see Amir, The Role of Intergroup Contact in Change of Prejudice and Ethnic Relations, in Towards the Elimination of Racism 245, 245-308 (P. A. Katz ed. 1976).

n55 See School Reading Lists Shun Women and Black Authors, N.Y. Times, June 21, 1989, at B6, col. 1 (reporting study by the Center for Learning and Teaching of Literature, SUNY, Albany).
The recent designation of Martin Luther King, Jr.'s birthday as a national holiday has generated a fair amount of discussion about King and the civil rights movement of the 1960s.  Interestingly, it is the "I have a dream" speech -- with its resonant and reassuring message of colorblindness -- that seems to get the most attention.

n56 See Massey & Denton, Hypersegregation in U.S. Metropolitan Areas: Black and Hispanic Segregation Along Five Dimensions, 26 Demography 373, 388-89 (1989) (degree of black/white segregation worse than previous studies reported).

n57 Crenshaw, supra note 50, at 1380 (footnote omitted).

n58 City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 713 (1989).

n59 Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3002 (1990).

n60 Fullilove v. Klutznick, 448 U.S. 448, 492 (1980).

n61 See Days, Fullilove, 96 Yale L.J. 453, 474-76 (1987); Amicus Brief of the National League of Cities at 1a-50a, Croson, 109 S. Ct. 706 (No. 87-998).

n62 Croson, 109 S. Ct. at 713.

n63 The case was not mooted by the expiration of the program because the plaintiff contractor alleged that it had suffered damages when it was not awarded a contract due to its failure to meet the set-aside requirement.

n64 See generally P. Foner, Organized Labor and the Black Worker 1619-1973, 45-46, 351 (1974) (union apprentice system that excluded blacks from construction in 1870 still did so in 1964); R. Gavins, The Perils and Prospects of Southern Black Leadership, 55-58 (1977) (blacks denied access to unions and apprenticeship programs because of race); Payton, Redressing the Exclusion of and Discrimination Against Black Workers in the Skilled Construction Trades: The Approach of the Washington Lawyers' Committee for Civil Rights Under Law, 27 How. L.J. 1397 (1984) (discrimination against black workers in construction trades due more to outright exclusion by white unions than to subtler forms of racism).

n65 Brown v. Board of Educ., 347 U.S. 483 (1954).

n66 See School Bd. v. State Bd. of Educ., 462 F.2d 1058, 1061 (4th Cir. 1972), aff'd by an equally divided court, 412 U.S. 92 (1973).

n67 Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666 n.3 (1966) (quoting Harman v. Forssenius, 380 U.S. 528, 543 (1965)).

n68 Loving v. Virginia, 388 U.S. 1, 7 (1967). Writing for the majority, Chief Justice Warren held that the statute was "designed to maintain White Supremacy." Id. at 11.

n69 See City of Richmond v. United States, 422 U.S. 358, 372-74 (1975).

n70 Cf. Fullilove v. Klutznick, 448 U.S. 448, 505-06 (1980) (Powell, J., concurring) (quoting congressional reports that concluded that low minority rates of participation in business were a result of past social and economic discrimination).  Justice O'Connor likewise recognizes that "past societal discrimination in education and economic opportunities" is a factor in explaining "extremely low" membership of MBEs in local contractors' associations.  City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 726 (1989).

n71 Statement of Policy on Minority Ownership of Broadcasting Facilities, 68 F.C.C.2d 979, 980-81 (1978) (footnotes omitted) (quoted in Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3004 (1990)).

n72 Steele v. FCC, 770 F.2d 1192, 1199 (D.C. Cir. 1985).

n73 Continuing Appropriations Act for Fiscal Year 1988, Pub. L. No. 100-202, 101 Stat. 1329-31 (1988).

n74 S. Rep. No. 182, 100th Cong., 1st Sess. 76 (1987).

n75 Judiciary and Related Agencies Appropriations Act, Pub. L. No. 100-459, 102 Stat. 2216 (1989); Judiciary and Related Agencies Appropriations Act, Pub. L. No. 101-162, 103 Stat. 1020 (1990).

n76 City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 735 (1989) (Scalia, J., concurring in the judgment); cf. William Van Alstyne's declamation: "[O]ne gets beyond racism by getting beyond it now: by a complete, resolute and credible commitment never to tolerate in one's own life -- or in the life or practices of one's government -- the differential treatment of other human beings by race." Van Alstyne, Rites of Passage: Race, the Supreme Court, and the Constitution, 46 U. Chi. L. Rev. 775, 809 (1979).

n77 Plessy v. Ferguson, 163 U.S. 537, 554-55 (1896) (Harlan, J., dissenting).

n78 See, e.g., A. Bickel, The Morality of Consent 133 (1975) ("The lesson of the great decisions of the Supreme Court and the lesson of contemporary history have been the same for at least a generation: discrimination on the basis of race is illegal, immoral, unconstitutional, inherently wrong, and destructive of democratic values.").

n79 Interestingly, the first civil rights law was worded in this way: "[A]ll . . . citizens . . . shall have the same right[s] . . . as . . . white citizens. . . ." Act of Apr. 9, 1866, ch. 31, ß  1, 14 Stat. 27.

n80 Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049, 1054-56, 1067 (1978).
Colorblindness has never meant that race should be or can be totally ignored.  Consistent with the individualist underpinnings of colorblindness, it remains permissible for persons to make personal, intimate choices based on race.  The idea here is not so much that it is a good thing that race influence private choices, but rather that it is a bad thing for the state to seek to control such choices.  While the scope of the unconstrained private choice has shrunk noticeably in the past twenty-five years, it clearly still includes decisions about marriage and association.

n81 W. E. B. Du Bois recognized this problem almost a century ago:
The American Negro has always felt an intense personal interest in discussions as to the origins and destinies of races: primarily because back of most discussions of race with which he is familiar, have lurked certain assumptions as to his natural abilities, as to his political, intellectual and moral status, which he felt were wrong.  He has, consequently, been led to deprecate and minimize race distinctions, to believe intensely that out of one blood God created all nations, and to speak of human brotherhood as though it were the possibility of an already dawning to-morrow.
W. E. B. Du Bois, The Conservation of the Races 5 (1897).  Although he expressly rejected the claim, Du Bois reported that many thought that:
our sole hope of salvation lies in our being able to lose our race identity in the commingled blood of the nation; and that any other course would merely increase the friction of races which we call race prejudice, and against which we have so long and so earnestly fought.
Id. at 10.

n82 Given the fact that Justice White joined Justice O'Connor's Croson opinion, there are apparently five votes for a colorblind approach -- at least as far as nonfederal programs are concerned.  See City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 712 (1989).

n83 Id. at 721. Justices White and Kennedy joined O'Connor with respect to this part of the opinion.  Id. at 712.

n84 Id. at 735 (Scalia, J., concurring) (quoting A. Bickel, supra note 78, at 133).

n85 Id. at 734 (Kennedy, J., concurring).

n86 The linkage between the underlying norm of equal protection and the test the Court uses for vindication of this norm -- strict scrutiny -- has been subject to much scholarly comment and speculation.  See, e.g., J. Ely, Democracy and Distrust 145-70 (1980) (strict scrutiny analysis "flushes out" impermissible purpose).  Although it is not generally recognized, a colorblind approach provides a persuasive account.  By limiting permissible ends to the remedying of past discrimination and requiring a close fit between means and ends, strict scrutiny can assure that race is used only to remedy previous breaches of the colorblind norm.

n87 Croson, 109 S. Ct. at 735 (Scalia, J., concurring).

n88 Id. at 727.

n89 See Lears, supra note 51, at 590; Cf. Lawrence, supra note 19, at 324-25 (discussing use of law to create utopian images that serve to justify status quo).

n90 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 407 (1978) (Blackmun, J., dissenting).

n91 R. Wasserstrom, Philosophy and Social Issues 24 (1980) (footnote omitted).  Wasserstrom is careful to point out that his use of the term "assimilationist" is "stipulative" and is not intended to suggest the incorporation of dominated groups into dominant culture.  Id. at 47 n.25.

n92 See Strauss, supra note 14, at 114.

n93 Schofield, Causes and Consequences of the Colorblind Perspective, in Prejudice, supra note 35, at 231.

n94 For example, a person's desire to reach decisions in a race-neutral manner may lead him or her to believe that race-neutral reasons provided the basis for a decision and to leave undisclosed the actual role that race played in the decision making process.  Id. at 247.

n95 Id. at 249.

n96 See, e.g., Jones, Racism: A Cultural Analysis of the Problem, in Prejudice, supra note 35, at 279-314.

n97 See T. Kochman, Black and White Styles in Conflict 8 (1981).

n98 See S. Heath, Questioning at Home and at School: A Comparative Study, in Doing the Ethnography of Schooling: Educational Anthropology in Action 105, 110 (G. Spindler ed. 1982).

n99 James Baldwin commented on the tone of warm congratulation with which so many [white] liberals address their Negro equals.  It is the Negro, of course, who is presumed to have become equal -- an achievement that not only proves the comforting fact that perseverance has no color but also overwhelmingly corroborates the white man's sense of his own value.
J. Baldwin, The Fire Next Time 127 (1962).

n100 See Lawrence, supra note 19, at 318, for a description of this maladroit white behavior.

n101 C. Geertz, Local Knowledge: Further Essays in Interpretive Anthropology 16 (1983).

n102 Malcom X told white America:
What you don't realize . . . is that black people today don't think it is any victory to live next to you or enter your society.  This is what you have to learn -- that the black man has finally reached the point where he doesn't see what you have to offer.  Today you haven't got anything to offer.  Your own time has run out, your own ship is sinking, the seas are stormy, and now that your boat is rocking and on its way down, you're offering the black man a chance to integrate into your doomed society.  And those Uncle Tom, brain-washed, white-minded Negroes who love you may do it, but the masses of black people want a society of their own in a land of their own.
(quoted in P. Goldman, supra note 2, at 66-67).

n103 S. Carmichael & C. Hamilton, Black Power 54-55 (1967).  Also during this time, some blacks urged increased financial support for, and black control of, black schools rather than busing to achieve racial balance, which would undermine attempts at black community building.  See Congress on Racial Equality, School Segregation: Its True Nature, in Education for Whom?  199, 205 (C. Tesconi & E. Hurwitz eds. 1974) (reprint of CORE's amicus brief filed in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971)).

n104 "Black is beautiful" may sound like a cliche today, but it was a brave and dramatic declaration in the 1960s.  See also P. Goldman, supra note 2, at 398-402 (explaining core of Malcolm X's philosophy as "altering the terms in which [black people] thought and the scale by which they measured themselves"; "his most important legacy was his example, his bearing, his affirmation of blackness").

n105 Similarly, Said can claim in Orientalism that a study of the Occident's views of the East reveals much about the West and very little about the East.  E. Said, Orientalism 6 (1978).

n106 Many will find my argument problematic to the extent that it postulates an "essential" black or white "voice" and thereby suppresses the diversity between and among whites and blacks that we seem to experience daily.  The attack on "essentialism" is shared by both proponents and opponents of the "different voice" claim.  Compare Kennedy, Racial Critiques of Legal Academia, 102 Harv. L. Rev. 1745, 1802-03 (1989) (attacking essentialism by arguing that racial status in itself is inadequate intellectual credential since white scholars can advance "black" arguments and vice-versa) with Harris, Race and Essentialism in Feminist Legal Theory, 42 Stan. L. Rev. 581, 585 (1990) (questioning the unitary concept of "woman" in some feminist scholarship by analyzing the voices of black women).  I will take up this critique below.  See infra notes 152-166 and accompanying text.

n107 J. Baldwin, supra note 99, at 136.

n108 W. E. B. Du Bois, supra note 32, at 172.

n109 Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 Harv. C.R.-C.L. L. Rev. 323, 326 (1987); see also id. at 325 ("The technique of imagining oneself black and poor in some hypothetical [Rawlsian or Ackermanian] world is less effective than studying the actual experience of black poverty and listening to those who have done so.").

n110 C. MacKinnon, Francis Biddle's Sister, in Feminism Unmodified, supra note 29, at 169.

n111 W. E. B. Du Bois, supra note 32, at 172; see also Lawrence, supra note 19, at 317-18 (Lawrence's own experiences with race-based habits of thought); id. at 328-44 (explaining various theories of psychoanalysis and their views of unconscious racism).

n112 See G. Fredrickson, The Black Image in the White Mind: The Debate on Afro-American Character and Destiny, 1817-1914, at 331-32 (1971) ("consciousness of color is combined, as it is in the United States, with a tradition of slavery and caste so deeply rooted in the white psyche that it often seems impervious to rational argument.").

n113 Cf. C. MacKinnon, Difference and Dominance, in Feminism Unmodified, supra note 29, at 38-39 (arguing that "different" moral reasoning of women suggested by Carol Gilligan may be "what male supremacy has attributed to us for its own use").

n114 A particularly insensitive example was Ronald Reagan's comment in 1989 -- reported the day before the national holiday celebrating Martin Luther King Jr.'s birthday -- that civil rights leaders overstate the existence of racism in order to keep themselves in business.

n115 Minority scholarship has also been harmed by white assumptions that nonmajority scholars are not as capable as whites.

n116 De la Luz Reyes & Halcon, Racism in Academia: The Old Wolf Revisited, 58 Harv. Educ. Rev. 299, 307 (1988); accord Williams, Alchemical Notes: Reconstructing Ideals from Deconstructed Rights, 22 Harv. C.R.-C.L. L. Rev. 401, 413 (1987) ("[W]hite statements of black needs suddenly acquire the sort of stark statistical authority which lawmakers can listen to and politicians hear.  But from blacks, stark statistical statements of need are heard as 'strident,' 'discordant,' and 'unharmonious. . . .'").

n117 See G. Fredrickson, supra note 112, at 320-32; G. Fredrickson, Social Origins of American Racism, in The Arrogance of Race: Historical Perspectives on Slavery, Racism, and Social Inequality 189 (1988).

n118 As Barrington Moore, Jr. has written, "sympathy with the victims of historical processes and skepticism about the victors' claims provide essential safeguards against being taken in by the dominant mythology." Quoted in Woodward, Clio with Soul, 56 J. Am. Hist. 5, 20 (1969).

n119 See, e.g., Peters v. Kiff, 407 U.S. 493, 503-04 (1972) ("[W]e are unwilling to make the assumption that the exclusion of Negroes has relevance only for issues involving race. . . .  [Their] exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.")

n120 White, What Can a Lawyer Learn from Literature?  (Book Review), 102 Harv. L. Rev. 2014, 2023 (1989).

n121 Morrison, supra note 48, at 11.

n122 Id. at 16.

n123 E.g., Willson v. Blackbird Creek Marsh Co., 27 U.S. (2 Pet.) 244 (1829); Brown v. Maryland, 25 U.S. (12 Wheat.) 419 (1827); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824).

n124 For example, E. Barrett, W. Cohen & J. Varat, Constitutional Law (8th ed. 1989); G. Gunther, Constitutional Law: Cases and Materials (11th ed. 1985); and W. Lockhart, Y. Kamisar, J. Choper & S. Shiffrin, Constitutional Law: Cases, Comments and Questions (6th ed. 1986); virtually ignore slavery, except as a backdrop to a discussion of the fourteenth amendment.  This failure to mention slavery seems particularly unreasonable given the high profile afforded the "founding" commerce clause cases.  To see these cases as turning simply on competing models of federalism is to distort their significance in American constitutional history and theory; what was at stake was the survival of a political, economic, and social system.  P. Brest & S. Levinson, Processes of Constitutional Decisionmaking: Cases and Materials (2d ed. 1983) was the early exception here.  See id. at 120-25, 153-81.  G. Stone, L. Seidman, C. Sunstein & M. Tushnet, Constitutional Law (1986), have followed suit, and admirably report in a note to Gibbons v. Ogden that "[c]ontroversies over the scope of the commerce clause, and over the breadth of Congress's powers generally, were inextricable from the issue of slavery in the antebellum period." Id. at 137.

n125 See G. Stone, L. Seidman, C. Sunstein & M. Tushnet, supra note 124, at 137 ("Southerners feared that broad affirmations of congressional power would license Congress to regulate slavery as a form of commerce.").

n126 22 U.S. (9 Wheat.) 1 (1824).

n127 41 U.S. (16 Pet.) 539 (1842).

n128 See Gibbons, 22 U.S. (9 Wheat.) at 209; Prigg, 41 U.S. (16 Pet.) at 622-25.

n129 See generally E. Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, at 102 (1988) ("Blacks brought out of slavery a conception of themselves as a 'Working Class of People' who had been unjustly deprived of the fruits of their labor."); E. Genovese, Roll Jordan, Roll: The World the Slaves Made 658 (1974) ("Accommodation and resistance developed as two forms of a single process by which the slaves accepted what could not be avoided and simultaneously fought individually and as a people for moral as well as physical survival."); H. Gutman, The Black Family in Slavery and Freedom, 1750-1925, at 36 (1976) ("[T]he developing Afro-American culture had at its core common adaptive slave domestic arrangements and kin networks and . . . enlarged slave communities emerged over time out of these adaptive kin arrangements.").

n130 Cf. Gates, Introduction: Writing "Race" and the Difference It Makes, in "Race," Writing, and Difference 1, 13 (H. L. Gates, Jr. ed. 1986) ("The Western critical tradition has a canon, as the Western literary tradition does.  I once thought it our most important gesture to master the canon of criticism, to imitate and apply it, but I now believe that we must turn to the black tradition itself to develop theories of criticism indigenous to our literatures.").

n131 A. Rich, supra note 1, at 300.

n132 See M. King, Jr., Why We Can't Wait 134 (1964); Commencement Address of Pres. Lyndon Johnson at Howard University, June 4, 1965, in 2 Public Papers of the Presidents: Lyndon B. Johnson, 1965, at 635, 636 (1966).

n133 But see, e.g., Abram, supra note 17, at 1314-23.

n134 See, e.g., City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 720-23 (1989); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 277-78, 293-94 (1986). This point is discussed at length infra text at notes 167-239.

n135 See Wygant, 476 U.S. at 314-15 (Stevens, J., dissenting); see also Sullivan, supra note 16, at 96-98 (analysis of Wygant reveals that a forward-looking justification for affirmative action would be more effective than treating it as a remedy for past wrongs).

n136 Wygant, 476 U.S. at 314 (Stevens, J., dissenting).

n137 Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 315-19 (1978).

n138 See supra notes 101-106 and accompanying text.

n139 Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997 (1990).

n140 See Williams, Metro Broadcasting, Inc. v. FCC: Regrouping in Singular Times, 104 Harv. L. Rev. 525, 537 (1990) ("Participation in ownership of . . . broadcast stations or other tools of mass communication . . . is the gateway to our greatest power as Americans. . . .  It provides the opportunity to propagate oneself in the marketplace of cultural images.").

n141 Metro Broadcasting, 110 S. Ct. at 3010-11. This view is consistent with the FCC's reasons for establishing its race-conscious policies.  See supra notes 71-72 and accompanying text.

n142 City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 739 (1989) (Scalia, J., concurring).

n143 See Williams, supra note 140, at 529 ("a real notion of diversity includes a concept of multiculturalism").
Arguably, it would be possible to construct a program dedicated to increasing diversity that does not draw an explicit race line.  The FCC might, for example, review the content of broadcasters' proposed programming.  But such a policy would create difficult evaluation, monitoring, and enforcement problems and, as Justice Brennan notes in Metro Broadcasting, would raise serious first amendment issues as well.  110 S. Ct. at 3019-24, 3019 n.35, 3022 n.42.

n144 Thus, Justice Stevens provides quite a limited justification for race-conscious measures in Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 315 (1986), when he suggests that
a school board may reasonably conclude that an integrated faculty will be able to provide benefits to the student body that could not be provided by an all-white, or nearly all-white, faculty . . . .  It is one thing for a white child to be taught by a white teacher that color, like beauty, is only "skin deep"; it is far more convincing to experience that truth on a day-to-day basis during the routine, ongoing learning process.
This argument is ultimately grounded on the colorblind claim that race is, and should be, irrelevant.

n145 My judgment here, I must confess, is influenced by my own teaching experiences.  Some of the richest classes I have taught have been those in which students of color have challenged white assumptions and presumptions.  See Aleinikoff, Multicultural and Anti-Racist Teaching in a Law School Class, in Multicultural Teaching in the University (D. Schoem, L. Frankel, X. Zuniga & E. Lewis eds. forthcoming).

n146 See, e.g., Metro Broadcasting, 110 S. Ct. at 3029 (O'Connor, J., dissenting) ("Racial classifications, whether providing benefits to or burdening particular racial or ethnic groups, may stigmatize those groups singled out for different treatment and may create considerable tension with the Nation's widely shared commitment to evaluating individuals upon their individual merit.").

n147 S. Steele, The Content of Our Character 116-17 (1990).

n148 D. Kinder & L. Sanders, Pluralistic Foundations of American Opinion on Race 9 & n.6 (August 1987) (unpublished paper) (on file with Columbia Law Review).

n149 Kennedy, Persuasion and Distrust: A Comment on the Affirmative Action Debate, 99 Harv. L. Rev. 1327, 1331 (1986) (footnotes omitted).

n150 Id.

n151 476 U.S. 267 (1986).

n152 See Harris, supra note 106, at 585.

n153 Kennedy, supra note 106, at 1782.

n154 Id. at 1782-83 (footnotes omitted); see also Carter, The Best Black, & Other Tales, in 1 Reconstruction 6, 7 (1990) (personal illustrations of the "best black" syndrome).

n155 See also Cousins v. City Council, 466 F.2d 830, 852 (7th Cir.) (Stevens, J., dissenting) ("Respect for the citizenry in the black community compels acceptance of the fact that in the long run there is no more certainty that these individuals will vote alike than will individual members of any other ethnic, economic, or social group."), cert. denied, 409 U.S. 893 (1972).

n156 Kennedy, supra note 106, at 1782-87.

n157 See J. Clifford, The Predicament of Culture: Twentieth-Century Ethnography, Literature, and Art 11-17 (1988); A. Ross, No Respect: Intellectuals and Popular Culture 68 (1989).

n158 Cf. Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 Duke L.J. 705, 729 (1990) (emphasis omitted):
[I]t seems likely that an increase in minority scholarship would change the framework of ideological conflict within which issues in the race area but also in other areas are discussed.  I do not mean by this that there is a black (or other minority) ideology.  The point is rather that there are historic, already established debates within the minority intelligentsias that are obviously relevant to law, but that have been largely absent from legal scholarship.

n159 As Duncan Kennedy sensibly argues, "[r]ecognizing culture doesn't annihilate the individual." Id. at 743 (emphasis omitted).  Rather, "culture and ideology provide a vocabulary from which 'individuals' pick and choose to produce themselves, constrained by their situation in time and space but with plenty available, even in the most apparently 'disadvantaged' position, from which to make something that has the stamp of unpredictable humanity." Id. at 745.

n160 Patricia Williams, while recognizing that "the categories of 'white' and 'black' do not begin to capture the richness of ethnic and political diversity," notes: "the simple matter of the color of one's skin so profoundly affects the way one is treated, so radically shapes what one is allowed to think and feel about this society, that the decision to generalize from this division is valid." Williams, supra note 116, at 404 n.4.

n161 Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3046 (1990) (Kennedy, J., dissenting).

n162 Id. at 3036 (O'Connor, J., dissenting).

n163 Id. at 3018.

n164 This is not a claim that the variation within black culture may not be as great as the variation between white and black cultures.

n165 See Sandalow, supra note 28, at 685-89.

n166 Social science investigations have identified a number of significant differences in views and experiences between racial groups that cut across class lines.  See R. Farley & W. Allen, The Color Line and the Quality of Life in America 148-50 (1987) (black/white residential segregation significant at every economic level); A Common Destiny, supra note 30, at 136 (alienation of blacks from white society is not concentrated within any particular segment of black community); D. Kinder & L. Sanders, Divided by Color: Race, American Politics, and the American Ideal (forthcoming from University of Chicago Press).  These findings contradict seat-of-the-pants assumptions that class, not race, is the significant dividing line.  Such studies describe aggregate differences and cannot (and would not) demonstrate that no black and no white share similar views on social and political issues.

n167 See, e.g., Bendick, The Croson Decision Mandates Set-Aside Programs Be Tools of Business Development, 1 George Mason U. Civ. Rts. L.J. 87 (1990); Devins, supra note 6; Fried, supra note 9; Payton, The Meaning and Significance of the Croson Case, 1 George Mason U. Civ. Rts. L.J. 59 (1990); Rosenfeld, Decoding Richmond: Affirmative Action and the Elusive Meaning of Constitutional Equality, 87 Mich. L. Rev. 1729 (1989); Sullivan, City of Richmond v. J. A. Croson Co.: The Backlash Against Affirmative Action, 64 Tul. L. Rev. 1609 (1990); Williams, supra note 140; Note, City of Richmond v. J. A. Croson Co.: A Federal Legislative Answer, 100 Yale L.J. 451 (1990).

n168 For example, what standard will be applied to affirmative action programs for women?  If, following Croson, all lines drawn on the basis of gender will be judged by the same standard, then gender-based affirmative action programs, which have been subjected to mid-level scrutiny, would seemingly be subjected to a lower level of scrutiny than race-based plans.  This conundrum cannot go unaddressed.

n169 See supra note 16 and accompanying text.

n170 City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 750-52 (1989) (Marshall, J., dissenting).

n171 Importantly, Justice O'Connor rejects the argument that the city itself must have discriminated, id. at 717-20; and in recognizing that "[i]n the extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion," id. at 729, Justice O'Connor implicitly accepts that such programs may reward persons who themselves were not victims of past discrimination and may impose costs on white contractors who may not have been past violators.  Since it may be safely assumed that the dissenters in Croson agree with these propositions, they should be understood as reflecting the views of the Court, despite Justice Scalia's nonacquiescence.  See id. at 735-39 (Scalia, J., concurring).

n172 See Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3034 (1990) (O'Connor, J. dissenting) ("In Croson, we held that an interest in remedying societal discrimination cannot be considered compelling.").

n173 See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274 (1986) (plurality opinion) ("This Court never has held that societal discrimination alone is sufficient to justify a racial classification.  Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination.").

n174 For Justice Scalia, it appears to be a matter of definition: "racial discrimination" is violative of the colorblind principle, and is distinct from "social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise." Croson, 109 S. Ct. at 735 (Scalia, J., concurring).  I find the tag "or otherwise" to be laden with unfortunate connotations.

n175 476 U.S. at 276 (emphasis in original).

n176 A small but interesting question is why Powell uses the word "legal" and chooses to italicize it.  What is he suggesting?

n177 In this way, Powell echoes the view he expressed in cases involving discrimination against illegitimate children.  See, e.g., Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164, 175 (1972) (visiting "society's condemnation of irresponsible liaisons" on an infant is "illogical and unjust").

n178 See infra notes 217-223 and accompanying text.

n179 See Carter, supra note 19, at 435-37.

n180 It is possible for the harm occasioned by affirmative action plans to rise to the level of a constitutional injury.  At least two sorts of claims might be made: First, businesses that are severely injured by a set-aside plan (such as those that have grown dependent upon public contracts) or tenured white teachers who are laid-off before untenured black teachers (as in Wygant), may have suffered constitutional injuries to property interests, and therefore may be entitled to compensation of some sort.  It is crucial to see, however, as Laurence Tribe has argued, that this principle is external to antidiscrimination law.  That is, the injured white is not a victim of race discrimination.  See L. Tribe, American Constitutional Law ß  16-22, at 1536-37 (2d ed. 1988) ("Distinguishing between otherwise justified affirmative action plans on the basis of the degree of sacrifice they extract from equally innocent white workers unnecessarily confounds takings and equal-protection analyses and subordinates the achievement of racial justice to whatever pattern of economic distribution our discriminatory past happens to have produced."); see also Fiss, supra note 12, at 159 (arguing for a distinction between unfair treatment and "disadvantaging" treatment in racially conscious conduct).  Second, affirmative action plans might be so arbitrary, either because based on an impermissible purpose, such as a bare desire to injure whites, or because of a miserable fit between means and ends, as to violate the due process clause.
Seeing these claims as arising outside of an equal-protection analysis is important because an injured white person would have to demonstrate the existence of an independently guaranteed constitutional right that is infringed by the program.  Clearly, under existing constitutional doctrine, not every burden visited upon a person by a social program constitutes a constitutional harm.

n181 Justice White characterized the affirmative action program in Wygant as calling for dismissal of white teachers "to make room for blacks, none of whom has been shown to be a victim of any racial discrimination." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 295 (1986) (White, J., concurring).  Do we really believe that there is a black person in this society who has not been the victim of any racial discrimination?  The responses of blacks should be sobering.

n182 See Crenshaw, supra note 50, at 1342.
Note also that the affirmative action plan struck down in Croson was substantially less burdensome than the lay-off program discussed in Wygant, because of the low percentage of total contracting dollars affected by the former.  Indeed, Powell suggested as much in Wygant by comparing it to the set-aside program upheld in Fullilove. See Wygant, 476 U.S. at 282; Fullilove, 448 U.S. at 484.

n183 See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. ß ß  2000e-2000e-17 (1988); cf. Wygant, 476 U.S. at 291-94 (O'Connor, J., concurring) (Public employers may make the determination that affirmative action is warranted when, for example, there is "demonstrable evidence of a disparity . . . sufficient to support a prima facie Title VII pattern or practice.").  See generally Note, Finding a "Manifest Imbalance": The Case for a Unified Statistical Test for Voluntary Affirmative Action Under Title VII, 87 Mich. L. Rev. 1986 (1989).

n184 See Note, supra note 167, at 454-55 (comparing number of qualified MBEs to percentage of contracts awarded to minority firms "may preclude the use of race-based remedies" when past discrimination has impeded the establishment of MBEs).

n185 See supra notes 29-57 and accompanying text.

n186 Cf. Metro Broadcasting, Inc. v. FCC, 110 S. Ct., 2997, 3025 (1990) ("greater programming diversity . . . carries its own natural limit, for there will be no need for further minority preferences once sufficient diversity has been achieved").
It would also be reasonable to allow those attacking a plan to show why we should not expect rough proportionality (for example, because of choice).

n187 But see Johnson v. Transportation Agency, 480 U.S. 616, 664-68, 673-75 (1987) (Scalia, J., dissenting).

n188 110 S. Ct. at 3035 (quoting City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 728 (1989) (O'Connor, J., dissenting)).  The same objection has been made in school desegregation cases.  See, e.g., Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 486-89 (1979) (Powell, J., dissenting); id. at 508-13 (Rehnquist, J., dissenting); Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 542-44 (1979) (Rehnquist, J., dissenting).

n189 See N. Glazer, Affirmative Discrimination: Ethnic Inequality and Public Policy 67-68 (1975); T. Sowell, Civil Rights: Rhetoric or Reality?  42-48 (1984); Abram, supra note 17, at 1315-16; Loury, Why Should We Care About Group Inequality?, 5 Soc. Phil. & Pol. 249, 249-50 (1987); DOJ Report, supra note 14, at 5-6.

n190 Sheet Metal Workers v. EEOC, 478 U.S. 421, 494 (1986) (O'Connor, J., concurring in part and dissenting in part) (quoted in United States v. Paradise, 480 U.S. 149, 197 (1987) (O'Connor, J., dissenting)).

n191 See, e.g., Croson, 109 S. Ct. at 726 ("[T]here are numerous explanations for [the] dearth of minority participation [in local contractors' associations], including past societal discrimination in education and economic opportunities as well as both black and white career and entrepreneurial choices."); see also DOJ Report, supra note 14, at 6 (stressing "demographic, cultural, and geographical variables" as nondiscriminatory causes of "statistical imbalance").

n192 See Suggs, Rethinking Minority Business Development Strategies, 25 Harv. C.R.-C.L. L. Rev. 101, 112-13 (1990); Smothers, Affirmative Action Booms in Atlanta, N.Y. Times, Jan. 27, 1989, at 10, col. 4.

n193 See DOJ Report, supra note 14, at 6.

n194 Another aspect of the "capability" concern is that the Court, along with many white Americans, may believe that affirmative action secures benefits for "unqualified" minorities.  But that objection (whatever its merit) does not explain why remedying societal discrimination is not an appropriate goal.

n195 Fullilove v. Klutznick, 448 U.S. 448, 541-48 (1980) (Stevens, J., dissenting).

n196 See infra text accompanying notes 198-204.

n197 See, e.g., Cygnar v. City of Chicago, 865 F.2d 827, 836-40 (7th Cir. 1989) (no record of past discrimination); accord Days, supra note 61, at 479-80.  See generally Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1710-17 (1984) (equal protection clause in accord with general constitutional principle that prohibits the distribution of entitlements solely on the basis of a group's political power).

n198 City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 722 (1989).

n199 See, e.g., Brest, supra note 14, at 16-17 (affirmative action programs not likely to stigmatize whites); Fiss, supra note 12, at 157-64 (equal protection clause should be understood as protecting historically oppressed groups).

n200 Croson, 109 S. Ct. at 721 (emphasis added).

n201 Id.  (emphasis added).

n202 Id. at 730 (emphasis added).

n203 Id. at 735 (Kennedy, J., concurring).

n204 Id. at 737 (Scalia, J., concurring).

n205 An entire article could be written about the Court's curious distinction between congressional and state power to remedy the effects of past discrimination.  To note just a few of my disagreements with the majority in Croson: (1) Prior to the fourteenth amendment nothing prohibited states from taking action to ameliorate the effects of past discrimination; is it sensible to say that the fourteenth amendment prohibited accomplishment of a thirteenth amendment goal?  (2) Except for the peculiar case of immigration regulations, the Court applies the same standards to federal and state regulations in other areas of fourteenth amendment jurisprudence.  Compare, e.g, Mathews v. Lucas, 427 U.S. 495, 505-06 (1976)(federal statute classifying on basis of legitimacy) with Weber v. Aetna Casualty & Sur. Co., 406 U.S. 164, 172-76 (1972) (state statute doing same); and compare Craig v. Boren, 429 U.S. 190, 197 (1976) (applying mid-level scrutiny to state statute discriminating on the basis of gender) with Califano v. Webster, 430 U.S. 313, 316-17 (1977)(same test applied to federal statute).  (3) Federalism values, to which a conservative Court might be expected to be sympathetic, suggest that local governments may be far better positioned to identify past discrimination and craft remedies.  (4) If the concern of the Court was the ability of minorities to dominate local governing units, it overestimated the power of black officials in a white economy and underestimated the power of minority blocs in Congress (Fullilove being a prime example).

n206 See Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir. 1989), for evidence that both blacks and whites can "play the game" in Chicago.

n207 Croson, 109 S. Ct. at 721.

n208 This argument was suggested to me by Lisa Freeman.

n209 For a summary and critique of the earlier historiography, see E. Foner, Reconstruction xix-xx (1988).

n210 See Days, supra note 61, at 480-83.

n211 There is an interesting parallel to Justice Holmes's troubling opinion in Giles v. Harris, 189 U.S. 475, 483-84, 488 (1903) (because State of Alabama had so thoroughly suppressed the opportunity of blacks to vote, Court was powerless to prevent it).

n212 City of Richmond v. J. A. Croson Co., 109 S. Ct. 706, 728 (1989).

n213 Id. at 743-45 (Marshall, J., dissenting).  The majority in Croson accepts both of these goals as legitimate.

n214 Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3010 (1990).

n215 Id. at 3034 (O'Connor, J., dissenting).  Of course, O'Connor's language leaves some room for the future recognition of other goals, and at times she has seemed open to "diversity" -type claims.  See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 284-94 (O'Connor, J., concurring) (apparently accepting Powell's view in Bakke that assuring classroom diversity is a legitimate state interest).  In Croson, she seems to have moved away from Wygant: in justifying her conclusion that affirmative action programs must be subjected to "strict scrutiny," she states that unless classifications based on race "are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility." 109 S. Ct. at 721 (emphasis added).

n216 Justice Souter's testimony before the Senate Judiciary Committee was unclear on this point.  He appears willing to approve the Court's holding in Metro Broadcasting, but, as the Senate Report notes, he mischaracterizes it as follows:
Judge SOUTER. . . .  The proposition which Metro stands for is that the congressional power to engage in . . . limited remedial action, which does indeed take some account of race, is to be judged under the middle-tier standard of scrutiny. . . .
Therefore Metro is one step in what I assume will be a long line of cases that is going to result in the definition of the scope of congressional power over . . . remedial legislation with race conscious references.
S. Exec. Rep. 101-32, 101st Cong., 2d Sess. 23 (1990) (citation omitted).  The Court in Metro Broadcasting, however, expressly denied that the FCC's policies were justified as "remedies for victims of . . . discrimination." 110 S. Ct. at 3010.

n217 See supra text accompanying notes 19-28.

n218 I try to use this term carefully.  By "racism" I mean a belief system (or ideology) of one group that asserts the inferiority of another group based on that group's race.  I distinguish it from "racial discrimination," by which I mean conduct that adversely affects a person or group based on race.

n219 See supra text accompanying notes 92-100.

n220 Social science evidence supports the claim that altering expected social roles can have an effect on attitudes.  See, e.g., Eagly & Steffen, Gender Stereotypes Stem from the Distribution of Men and Women into Social Roles, 46 J. Personality & Soc. Psychology 735, 752 (1984).

n221 Cf. Kennedy, supra note 158, at 745 (difficulty in discerning the true "individuality" of others due to constraints of personal perceptions).

n222 See, e.g., A. Meier & E. Rudwick, Black History and the Historical Profession, 1915-1980, at 175-237 (1986); B. Quarles, Black Mosaic: Essays in Afro-American History and Historiography 80-213 (1988).

n223 See I. Young, Justice and the Politics of Difference 194 (1990).

n224 See Days, supra note 61, at 471-77.
Of course, the numerous state and local set aside programs fashioned after the congressional program upheld in Fullilove are now vulnerable because of the Court's decision in Croson. For an attempt at damage control, see Constitutional Scholars' Statement on Affirmative Action After City of Richmond v. J.A. Croson Co., 98 Yale L.J. 1711 (1989).

n225 Exec. Order No. 11,246 (1965), 3 C.F.R. 339 (1964-1965), reprinted in 42 U.S.C. ß  2000e app. at 28-31 (1990); accord 41 C.F.R. part 60-30 (obligation to remedy underutilization of protected groups).

n226 See Contractors Ass'n v. Secretary of Labor, 442 F.2d 159, 177 (3d Cir.), cert. denied, 404 U.S. 854 (1971) (Executive Order within implied authority of President to reduce costs by ensuring that largest possible pool of qualified workers available to undertake work on government contracts).

n227 See, e.g., N. Glazer, supra note 189, at 51-57; T. Sowell, supra note 189, at 48-60.

n228 See, e.g., Contractors Ass'n, 442 F.2d at 176-77 (upholding Plan enacted pursuant to Exec. Order No. 11,246).

n229 Metro Broadcasting, Inc. v. FCC, 110 S. Ct. 2997, 3010 (1990).

n230 See City of Mobile v. Bolden, 446 U.S. 55, 60-61 (1980).

n231 42 U.S.C. ß  1973(b) (1988) (emphasis supplied).

n232 See, e.g., S. Rep. No. 417, 97th Cong., 2d Sess. 96 (1982) (statement of Sen. Hatch).

n233 Id. at 193-94 (statement of Sen. Dole).

n234 Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, ß  3, 96 Stat. 131, 134 (1982) (codified as amended at 42 U.S.C. ß  1973(b)).

n235 See, e.g., United States v. Dallas County Comm'n, 850 F.2d 1433, 1440-41 (11th Cir. 1988). This result appears to have been anticipated by the drafters (if one reads between the lines): "The court should exercise its traditional equitable powers to fashion the relief so that it completely remedies the prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and to elect candidates of their choice." S. Rep., supra note 232, at 31.

n236 S. Rep., supra note 232, at 30 (emphasis added).

n237 See Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Legislation, 24 Harv. C.R.-C.L. L. Rev. 173, 213-14 (1989).

n238 See, e.g., United States v. Marengo County Comm'n, 731 F.2d 1546, 1556-63 (11th Cir.), cert. denied, 469 U.S. 976 (1984). The Court has not expressly passed on the constitutional issue.  However, in its only major decision on section two, the Court gave no hint that it thought the section raised a serious constitutional question.  See Thornburg v. Gingles, 478 U.S. 30 (1986).

n239 S. Rep., supra note 232, at 94 (emphasis in original).

n240 See Tribe, supra note 13, at 204-06.

n241 347 U.S. 483 (1954).

n242 See Brest, supra note 14, at 9; Tribe, supra note 13, at 204-05; see also Black, The Lawfulness of the Segregation Decisions, 69 Yale L.J. 421, 430 n.25 (1960).

n243 To its advocates, colorblindness remains an instrumental strategy for achieving racial justice.  I do not mean to imply that supporters of colorblindness have no regard for the real-world consequences of their theoretical positions.

n244 On the Northern history of racism and oppression, which rarely makes it into the American history textbooks, see L. Litwack, North of Slavery: The Negro in the Free States, 1790-1860 (1961).

n245 Act of Apr. 9, 1866, ch. 31, ß  1, 14 Stat. 27.

n246 See Schnapper, Affirmative Action and the Legislative History of the Fourteenth Amendment, 71 Va. L. Rev. 753, 754 (1985).

n247 See supra notes 76-89 and accompanying text.  Other consequences of colorblindness may make it attractive to whites, such as its failure to demand significant change in the allocation of resources and opportunities away from whites.  I do not credit this argument in the discussion that follows.

n248 See, e.g., B. Fields, Ideology and Race in American History, in Region and Reconstruction 143, 164-68 (1982); P. Foner, supra note 64, at xxiii n.8 (collecting sources).

n249 See R. Farley & W. Allen, supra note 166, at 313.

n250 A Common Destiny, supra note 30, at 7.

n251 Id. at 4.

n252 See, e.g., City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 735-39 (1989) (Scalia, J., concurring); Abram, supra note 17, at 1312.  Of course, this is a contested claim.  See, e.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 402-08 (Blackmun, J., concurring in the judgment in part and dissenting in part) (in order to get past racism, society must be race-conscious now).
Supporters of colorblindness also assert that color-consciousness produces bad results (such as a lowering of standards, a divisive racial spoils system, and imposition of stigma on beneficiaries of affirmative action).

n253 See, e.g., A. Bickel, supra note 78, at 133; DOJ Report, supra note 14, at 4-5.

n254 Dimond, The Anti-Caste Principle -- Toward A Constitutional Standard for Review of Race Cases, 30 Wayne L. Rev. 1 (1983).

n255 Fiss, supra note 12, at 157, 160.

n256 L. Tribe, supra note 180, ß  16-21, at 1515.

n257 The Court's interpretation of Title VII in Griggs v. Duke Power Co., 401 U.S. 424 (1971), provides an example.  There, the Court invalidated a testing requirement for employment that had a disproportionate impact on minority applicants because the test had not been shown to be sufficiently job-related.  Id. at 432. Griggs clearly goes beyond the colorblind/antidiscrimination model because it rejects the claim that discriminatory intent is necessary to make out a violation of Title VII and strikes down an employment prerequisite that did not include an explicit racial classification.  The Court seriously narrowed Griggs in Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115, 2121 (1989), but it did not overturn the effects test.  Title VII also allows private affirmative action plans, see Johnson v. Transportation Agency, 480 U.S. 616, 637-40 (1987); United Steelworkers v. Weber, 443 U.S. 193, 200-08 (1979), but it is not clear that Johnson will survive the departures of Justices Powell and Brennan.
Other federal antidiscrimination statutes and regulations permit the invalidation of policies causing disproportionate impact in the absence of proof of discriminatory intent.  See, e.g., Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 147-48 (3d Cir. 1977), cert. denied, 435 U.S. 908 (1978); Fair Housing Act (Title VIII of the Civil Rights Act of 1968), 42 U.S.C. ß ß  3601-3631 (1988); 42 U.S.C. ß ß  2000d-d-7 (1988) (regulations implementing the Civil Rights Act's disproportionate impact policies).

n258 For an excellent discussion contrasting the traditional conception, i.e., that discrimination is a product of prejudice, with institutional and other conceptions of discrimination, see J. Feagin & C. Feagin, Discrimination American Style: Institutional Racism and Sexism (2d ed. 1986).

n259 To the extent that a "racial justice" approach condemns racism, it may be difficult to square with the original intent of the thirteenth amendment.  But even the current Court has allowed a broader, more up-to-date reading of this amendment.  See Patterson v. McLean Credit Union, 109 S. Ct. 2363, 2377-79 (1989).

n260 Cf. Torres, Local Knowledge, Local Color: Critical Legal Studies and the Law of Race Relations, 25 San Diego L. Rev. 1043, 1064 (1988) (noting that "choice of terms used to characterize the legal struggle against racism reveals particular conceptions of law and social relations").

n261 Justice Scalia implicitly adopts this distinction in Croson:
The benign purpose of compensating for social disadvantages, whether they have been acquired by reason of prior discrimination or otherwise, can no more be pursued by the illegitimate means of racial discrimination than can other assertedly benign purposes we have repeatedly rejected.
City of Richmond v. J.A. Croson Co., 109 S. Ct. 706, 735 (1989).

n262 This would mean a dramatic shift in law school studies.  The focus would be on historical and social science materials demonstrating the difference that race makes, rather than on discussions of the appropriate level of scrutiny by which the judiciary ought to judge governmental programs that draw racial lines.

n263 Cf. West, Progressive and Conservative Constitutionalism, 88 Mich. L. Rev. 641, 717-18 (1989) (noting "pervasiveness of the perceived equation of public morality with constitutionalism," and suggesting "recharacteriz[ing] our progressive understanding of the constitutional guarantees of liberty and equality as political ideals to guide legislation, rather than as restraints on legislation").

n264 See, e.g., Justice White's penultimate paragraph in Washington v. Davis, 426 U.S. 229, 252 (1976), and Justice Powell's majority opinion in McCleskey v. Kemp, 481 U.S. 279, 314-19 (1987), both suggesting that "impact tests" would have drastic societal consequences.

n265 See West, supra note 263, at 717-21.

n266 392 U.S. 409 (1968).

n267 42 U.S.C. ß  1982.

n268 392 U.S. at 442-43.

n269 In language more rhetorical than analytical, the Court declared:
At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live.  If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise that the Nation cannot keep.
Id. at 443.
When the Court recently re-examined the applicability of the 1866 statute to private discrimination, it held that "whether . . . [our decision] is right or wrong as an original matter, it is certain that it is not inconsistent with the prevailing sense of justice in this country." Patterson v. McLean Credit Union, 109 S. Ct. 2363, 2371 (1989).

n270 See H. Hyman & W. Wiecek, Equal Justice Under Law: Constitutional Development 1835-1875, at 397 (1982); J. ten Broek, The Antislavery Origins of the Fourteenth Amendment 141-43 (1951).

n271 See H. Hyman & W. Wiecek, supra note 270, at 391-403; J. ten Broek, supra note 270, at 140-80; Kaczorowski, Reconstructing Reconstruction: The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary, 98 Yale L.J. 565, 569-73 (1989).

n272 109 U.S. 3 (1883).

n273 Id. at 24; see also City of Memphis v. Greene, 451 U.S. 100, 128 (1981) (street closing that separated white and black communities did not violate thirteenth amendment: "to regard [disparate impact of city's action] as a form of stigma so severe as to violate the Thirteenth Amendment would trivialize the great purpose of that charter of freedom.").

n274 See Williams v. City of New Orleans, 729 F.2d 1554, 1577 (5th Cir. 1984) (Wisdom, J., concurring in part and dissenting in part) (affirmative action program in police department justified by thirteenth amendment since "present discriminatory effect upon blacks as a class can be linked with a discriminatory practice against blacks as a race under the slavery system"); Loury, supra note 189, at 253-59 (concept of inherited disabilities).

n275 See Vaughan, The Origins Debate: Slavery and Racism in Seventeenth-Century Virginia, 97 Va. Mag. Hist. & Biography 311, 311 & nn.1-2 (1989).

n276 G. Fredrickson, supra note 112, at 189.

n277 Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 592 (1975).

n278 Cf. Binder, Negating Slavery, in Recognizing Freedom: Slavery and Emancipation After Hegel (G. Binder, J. Bush & K. Thomas eds., forthcoming 1992) (suggesting interpretation of the thirteenth amendment based on the conception of freedom held by African-American beneficiaries of the amendment).

n279 See J. Kluegel & E. Smith, Whites' Beliefs about Black Opportunity, 47 Am. Soc. Rev. 518, 523 (1982).

n280 This proposal has received support from some African-American scholars.  See, e.g., S. Steele, supra note 147, at 19-20; W. Wilson, The Truly Disadvantaged: The Inner City, the Underclass, and Public Policy 109-24 (1987).

n281 For theoretical possibilities, see Baker, Outcome Equality or Equality of Respect: The Substantive Content of Equal Protection, 131 U. Pa. L. Rev. 933 (1983); Michelman, The Supreme Court, 1968 Term -- Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7 (1969).

n282 See Maher v. Roe, 432 U.S. 464, 480 (1977); San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 36 (1973).

n283 A fundamental rights strategy has other potential strengths.  It provides opportunities for coalition building across race lines, and may well bring back to the civil rights movement those who supported earlier political action but lost faith during the fight over affirmative action.

n284 Indeed, one of the ironies of affirmative action is that it allows whites to be exposed to successful blacks, and, given the nonintersecting worlds of whites and blacks, thereby leads whites to overestimate the opportunities available to blacks.  See Kluegel & Smith, supra note 279, at 519.

n285 The famous phrase of Malcolm X.  E.g., Speech of Dec. 20, 1964 at the Audubon Ballroom, reprinted in Malcolm X Speaks 116 (G. Breitman ed. 1965) ("Our objective is complete freedom, complete justice, complete equality, by any means necessary.").

n286 The most infamous rendering of this view is Chief Justice Taney's opinion in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). Taney is properly castigated for his historical, legal, and logical errors, but he may have been closer to the mark with his claim that many white Americans did not consider blacks to be full members of the new nation.

n287 Du Bois, supra note 32, at 135.

n288 Jean-Paul Sartre, Anti-Semite & Jew 83 (G. Becker trans. 1948).

n289 F. Fanon, supra note 53, at 115-16.

n290 Kenneth Karst's book, Belonging to America, can be read in this fashion.  K. Karst, Belonging to America: Equal Citizenship and the Constitution (1989).  But I think the task is far more difficult than Karst allows.

n291 It will require that Langston Hughes's celebrated poem be a statement of fact, rather than a dream:
I, Too
I, too, sing America
     I am the darker brother
They send me to eat in the kitchen
     When company comes,
     But I laugh,
     And eat well,
     And grow strong.
Tomorrow,
     I'll be the table
     When company comes.
     Nobody'll dare
     Say to me,
     "Eat in the kitchen,"
     Then.
Besides,
     They'll see how beautiful I am
     And be ashamed --
I, too, am America.
L. Hughes, Selected Poems 275 (1959).

n292 It might be objected that this narrative is also inadequate to the extent that it is based on a set of values (that "building" and "accumulating" are the appropriate measures of worth) not shared by all Americans.