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Published online by Cambridge University Press: 09 June 2015
The city…lists a host of nonracial factors which would seem to face a member of any racial group attempting to establish a new business enterprise, such as deficiencies in working capital, inability to meet bonding requirements, unfamiliarity with bidding procedures, and disability caused by an inadequate track record.
To accept Richmond’s claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for “remedial relief” for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs… We think such a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.
The minority ownership policies…are aimed directly at the barriers that minorities face in entering the broadcasting industry. The Commission’s task force identified as key factors hampering the growth of minority ownership a lack of adequate financing, paucity of information regarding license availability, and broadcast inexperience.
We hold that benign race-conscious measures mandated by Congress—even if those measures are not “remedial” in the sense of being designed to compensate victims of past governmental or societal discrimination—are constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives.
The excerpts introducing this article are drawn from two recent decisions of the Supreme Court of the United States on equality rights. Illustrating the directional changes in the nature of equality rights, they vary from antagonism to ambivalence towards remedial relief for disadvantaged groups. In particular, they illustrate the current debate between traditional individual rights and a new communitarian conception of equality rights.
This article was written in 1993 while the author was Visiting Professor of Law at the University of Wisconsin Law School. The author thanks Renn Holness and Allison Outhit for their valuable research assistance.
1. City of Richmond v. J. A. Croson Co., 488 US 469 (1989) at 498–99, per O’Connor, J.
2. Ibid. at 505–06.
3. Metro Broadcasting Corp. v. FCC, 110 S. Ct. 2997 (1990) at 3024, per Brennan, J.
4. Ibid. at 3008–09.
5. Supra note 3.
6. See, Mr.Justice, McIntyre’s comments on equal treatment of unequals in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 182–83.Google Scholar Comment of Dickson, C.J. in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 347;Google Scholar Rosenfeld, M. “Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal” 74 Cal. L. Rev. 1687.Google Scholar
7. The author purposefully avoids the denotation of “race” and the use of “race” language. Using “race” language, however benignly lends credence to the concept that “race” is a credible and absolute genetic classification, and that it is therefore possible to make generalizations, both biological and behavioral, about one “race” or the next. From there, the author feels, it is only a short leap to drawing the kind of “inferences” which, in reality, are the unfounded stereotypes that form the basis of “racism” itself. This position is most cogently stated by Professor Turpel:
“The terms “race” and “racial differences” are too readily equated with “colour” or visible biological differences among peoples; whereas cultural differences should be understood more as manifestations of differing human (collective) imaginations, of different ways of knowing. The expression “cultural difference” conjures up more than difference of appearance (colour). It allows us to consider profound differences in understandings of social and political life.” (from “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” in Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991) at 503.Google Scholar
Additionally, using “culture” as a signifier also lends itself more to appreciating the position of self–identifying and/or mixed culture groups, who, under the rigid colour–identification scheme of “race”, would tend to be excluded from discourse. “Culture” also can encompass difference within larger non–mainstream groups themselves, such as different First Nations bands, or African or Caribbean immigrants.
8. See, Izzo, A.A. “The Jurisprudence of Affirmative Action: Equality in Abstraction and Application” (1992) 4 St. Thomas L. Rev. 161;Google Scholar Marshall, B. “A Comment on the Nondiscrimination Principle in a ‘Nation of Minorities’” (1984) 93 Yale L.J. 983 at 1006.CrossRefGoogle Scholar
9. As stated by Blackmun, J. in Regents of the Univ. of Cal. v. Bakke, 438 U.S. at 407,Google Scholar
In order to get beyond racism, we must first take account of race… [And] in order to treat some persons equally, we must treat them differently.
See also, Andrews v. L.S.B.C., supra note 6.
10. See Shelagh, Day (commenting on the inclusion in Canadian human rights legislation of protected affirmative action programs), Affirmative Action: The Distribution of Weil-Being (Ottawa: National Association of Women and the Law, 1983).Google Scholar
11. This privileged status is the result of past discrimination which has been the basis upon which American Courts have traditionally justified affirmative action programmes. See, Richmond v. J A. Croson Co., 488 U.S.
12. Colleen, Shephard “Equality, Ideology and Oppression: Women and the Canadian Charter of Rights and Freedoms” in Boyle, et al., eds, Charterwatch: Reflections on Equality (Toronto: Carswell, 1986) at 199.Google Scholar
13. Peter, Westen “The Concept of Equal Opportunity” (1985) 95 Ethics 837.Google Scholar
14. See, for example, two leading Canadian cases that address corrective or rectificatory measures in the workplace: Action Travail des Femmes v. Canadian National Railway, [1987] 1 S.C.R. 1114 (employer, in order to redress systemic bias against women seeking blue-collar-type jobs, is ordered to affirmatively hire women until 13% of its workforce in those areas is comprised of women); Blainey v. Ontario Hockey Association (1987), 9 C.H.R.R. D/4549 (Ont. Board of Inquiry) (all-boys’ hockey association ordered to allow participation by girls; in contrast, all girls’ association held to be valid programme encouraging participation by women, traditionally underrepresented in the sport.)
15. See, Rosenfeld, M. “Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal” 74 Cal.L. Rev. 1687 at 1708;Google Scholar Goldman, A. Justice and Reverse Discrimination 175–76 (1979);Google Scholar See also, Rosenfeld, M. “Affirmative Action, Justice, and Equalities: A Philosophical and Constitutional Appraisal” (1985) 46 Ohio St. L.J. 845 at 860;Google Scholar Cf. Rawls, J. A Theory of Justice (Cambridge: Harvard Univ. Press, 1971) at 65–75.Google Scholar
16. See The Constitutional Accord, on aboriginal self-government (Charlottetown, 1992).
17. See Turpel, Mary Ellen “Aboriginal Peoples and the Canadian Charter: Interpretive Monopolies, Cultural Differences” in Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications Ltd., 1991) at 503.Google Scholar
18. Ibid, at 515.
19. Day, Kate Nace “The Moral Confusion of Affirmative Action Jurisprudence” (1992) 16 Vermont L. Rev. 777.Google Scholar
20. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 287–305. Justice Powell stated that racial classification in affirmative action programs should come under strict judicial scrutiny and must be the least restrictive ends to a “compelling state interest”.
In Canada, see Apsit v. Manitoba (Human Rights Commission), [1988] 1 W.W.R. 629 (Man. Q.B.) (programme granting licenses to grow wild rice to First Nations growers held to be invalid, as it was not an ameliorative remedy directed at a specific cause of disadvantage).
21. Much of the debate regarding the “fair” treatment of minority students began after the landmark decision Brown v. Board of Education, 347 U.S. 483 (1954). In that case the court ordered an end to state–mandated racial segregation of public schools. See, Jr.Bell, Derrick A. “Serving Two Masters: Integration Ideals and Client Interests in School Desegregation Litigation” (1976) 85 Yale L.J. 470;CrossRefGoogle Scholar Jr.Bell, Derrick A. “ Brown v. Board of Education and the Interest-Convergence Dilemma” (1980) 93 Harv. L. Rev. 518.Google Scholar
22. (1993) Wise. L. Rev. 105 at 136. See also, Crenshaw, Kimberlé W. “Race, Reform and Retrenchment: Transformation and Legitimation In Antidiscrimination Law” (1988) 101 Harv. L. Rev. 1331.Google Scholar
23. This is demonstrated in the United States Supreme Court decision, Green v. County School Board, 391 US 430 (1968). The school board had been ordered to desegregate, and thereafter devised a community-approved programme to allow African-American and white students to move by choice to other schools. The court held that this “choice” was unconstitutional. For commentary, see Gewirtz, Paul “Choice in the Transition: School Desegregation and the Corrective Ideal” (1986) 86 Colum. L. Rev. 729.Google Scholar
24. See, for example, Baxter, Felix “The Affirmative Duty to Desegregate Institutions of Higher Education—Defining the Role of the Traditionally Black College” (1982) 11 J. of L. and Educ. 1;Google Scholar Freilich, Robert M. & Gumm, Richard W. “Separate But Unequaled: The Need for Interdistrict Relief Based on State Law” (1992) 24 Urban Lawyer 637.Google Scholar
25. See, Dove, D.E. “The Emergence of Black Supplementary Schools: Resistance to Racism in the United Kingdom” (1993) 27 Urban Ed. 430 at 431.Google Scholar
26. See Steskal, Christopher “Creating Space for Racial Difference: The Case for African-American Schools (1992) 27 Harvard C.R-C.L.L.R. 187 Google Scholar (inter alia, discusses Garret v. The Board of Education, 775 F. Supp. 1004, in which the court stated that the black male crisis is an important objective recognized by the Equal Protection Clause, but the exclusion of girls does not further the achievement of this objective.) Mireya, Navarro “Segregation or a solution? Students ponder a school plan”, New York Times, Jan. 18, 1991 at Bl.Google Scholar
27. On cultural oppression in the classroom, see Goode, Victor “Cultural Racism in Public Education: A Legal Tactic for Black Texans” (1990) 33 Howard L.J. 321.Google Scholar In this article, Goode describes the struggle to rid Texan schools of symbols and practices glorifying the “Rebel”, slave-owning days: flying the Confederate flag, marching to “Dixie” and so on. He argues that these practices constitute discrimination under articles 13 and 14 of the Constitution.
28. Crenshaw, Kimberlé W. “Race, Reform and Retrenchment: Transformation and Legitimation In Antidiscrimination Law” (1988) 101 Harv. L. Rev. 1331 at 1372.Google Scholar
29. This “elitism” is particularly salient in policies that allow “special consideration” and admission to overwhelmingly white and affluent children of alumni. See Leslie, Connie et al., “A Rich Legacy of Preference” (June 24, 1991) Newsweek 59 (quoting a Department of Education Report).Google Scholar
30. Bakan, Joel “Constitutional Interpretation and Social Change: You Can’t Always Get What You Want (Nor What You Need)” in Devlin, Richard ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991) at pp. 452–453.Google Scholar
31. See Powell’s, Justice comments regarding race-conscious policies, Regents of the Univ. of California v. Bakke, 438 U.S. 265 (1978):Google Scholar
“The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded equal protection, then it is not equal.” (at 289–90)
32. See Marshall, Burke “A Comment on the Nondiscrimination Principle in a ‘Nation of Minorities’” (1984) 93 Yale L.J. 1006.Google Scholar
33. Jones, James “The Affirmative Action/Quota Issue: Back to the Future in the Year 2000?” (1993) 15 U. Arkansas L. Rev. L.J. 361 at 380,Google Scholar (commenting on Wygant v. Jackson Board of Education, 476 US 267, 280–282 (1986)).
34. In refusing to identify the distinctness of African Americans:
…each individual comes to court robbed of the special attributes of group membership.... Deprived of a group identity by a legal system that addresses only violations of individual rights, the minority can raise no claim as a result of the injustices heaped on his ancestors and, through them, on him. ( Horwitz, “The Jurisprudence of Brown and the Dilemmas of Liberalism” (1979) 14 Harv. C.R.-C.L.L.R. 599 at 610).Google Scholar
35. See, for example, Quandt, Tarel “Learning Exclusion: A Feminist Critique of the Law School Experience” (1993) 4 Educ. and L.J. 279.Google Scholar
36. See Monture, A. Patricia “Reflecting on Flint Woman” in Devlin, ed., Canadian Perspectives on Legal Theory (Toronto: Emond Montgomery Publications, 1991) at 351.Google Scholar
37. A dilemma precisely identified and illuminated by Vickers, Jill McCalla in “Memoirs of an Ontological Exile” in Miles, Angela R. & Finn, Geraldine eds, Feminism in Canada (Montreal: Black Rose Books, 1982).Google Scholar
38. Foster, S. “Difference and Equality: A Critical Assessment of the Concept of ‘Diversity’” (1993) Wise. L. Rev. 105 at 155,Google Scholar citing Young, Iris M. “Justice and the Politics of Difference” 41 (1990) at 197.Google Scholar
39. Supra note 16.
40. See Greene, Linda S. “Tokens, Role Models and Pedagogical Politics: Lamentations of an African American Female Law Professor” (1991) 6 Berkeley Women’s L.J. 81.Google Scholar
41. Monture, Patricia A. supra note 36 at 355.Google Scholar
42. See Garet, Ronald R. “Dancing to Music: An Interpretation of Mutuality” 1991/92 80 Kent. L.J. 893.Google Scholar
43. Infra note 50 at 212.
44. “Separate but equal” refers to the “Plessy doctrine” of racial segregation, stemming from the 1896 Supreme Court decision upholding racial segregation laws in the landmark case Plessy v. Ferguson. The “Plessy doctrine” prevailed in relation to segregated education until it was finally overturned in 1954 by Brown v. Board of Education 347 U.S. 483 (1954). See generally, Lofgren, The Plessy Case (New York: Oxford University Press, 1987).Google Scholar
45. The author is sensitive to arguments favouring separate ethnocentric schooling. However, the author also proposes that the integration of culturally disadvantaged groups into society-at-large is inevitable. In particular, the process of recognising and appreciating diversity cannot stop at the level of education. Some theorists who favour ethnocentric schooling propose that “[t]he African-American Immersion School is designed to supplement, not supplant, desegregation efforts”. ( Steele, R. “All Things Not Being Equal: The Case for Race Separate Schools” 43 Case West. L. Rev. 589 at 591).Google Scholar They also insist that ethnocentric schools are the only way to combat “ghetto schooling” that result from de facto segregation. The author recognises the potential of ethnocentric schools. However, the same factors that transformed the facially neutral “separate but equal” education system into an instrument of oppression for African–Americans, remain rampant and, without support from mainstream society, may defeat the laudable goals of ethnocentric schooling. These factors include: underfunding, lack of interest by mainstream–dominated regulatory and funding bodies, ostracizing by other schools, lack of recognition by higher education facilities, etc.
For discussion on ethnocentric schools, see Steele, above, and Siegel, , “Race, Education and the Equal Protection Clause in the 1990’s: The Meaning of Brown v. Board of Education Re-examined In Light of Milwaukee’s Schools of African-American Immersion” (1991) 74 Marquette L. Rev. 501.Google Scholar
46. Patterson, L. “Individual Rights and Group Wrongs: An Alternative Approach to Affirmative Action” (1986) 56 Miss. L.J. 781 at 783.Google Scholar
Interestingly, those who seek rectificatory justice through affirmative action are sometimes criticized for promoting “reverse discrimination”: See Duncan, “The Future of Affirmative Action: A Jurisprudential/ Legal Critique” (1982) 17 Harv. C.R.-C.L.L.R. 503, 524.Google Scholar
47. Nah (Dorothy) E. Dove, commenting on the legacy left from a history of African oppression, states:
As the European-Centered, White supremacist aspects of this global conquest evolved, the racialized power relations that ensued were consolidated. Thus social institutions were adapted to accommodate White empowerment—regardless of class or sex—above all others.
Supra note 25 at 434.
48. Jones, supra note 33.
49. Ibid. at 379.
50. Christopher Steskal’s concept of “Cultural victimization” explains a similar phenomenon whereby “…individuals universalize their own group perspective and silence the group perspective of others.” See Steskal, C. “Creating Space for Racial Difference: The Case for African American Schools” (1992) 27 Harv. C.R-C.L.L.R. 187 at 213.Google Scholar
51. Supra note 50 at 213.
52. See Harris, Angela P. “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stan. L. Rev. 581.CrossRefGoogle Scholar Harris argues that a person’s “difference” or stereotyped difference becomes part of how s/he self–identifies, and how s/he is identified by society. See also Matsuda, “Voices of America: Accent, Antidiscrimination Law, and a Jurisprudence for the Last Reconstruction” (1991) 100 Yale L.J. 1329;Google Scholar Greene, supra note 40.
53. See, for example, Jr.Higginbotham, A. Leon “An Open Letter to Justice Clarence Thomas from a Federal Judicial Colleague” (1991/92) 140 U. Perm. L. Rev. 1005 (commenting on Clarence Thomas’s poor record of civil rights adjudication).Google Scholar
54. Kaller, Evelyn “Multiculturalism, Minorities and Motherhood: A Social Scientific Critique of S. 27” in Canadian Human Rights Foundation, ed., Multiculturalism and the Charter (Toronto: Carswell, 1987) at 124.Google Scholar
55. Menchu, I, Rigoberta Menchu: An Indian Woman in Guatemala (London: Verso, 1984). Menchu won the Nobel Prize for Peace in 1991.Google Scholar
56. Boles, J. ed., Masters and Slaves in the House of the Lord: Race and Religion in the American South, 1740–1870 (Lexington, Ky.: University Press of Kentucky, 1988).Google Scholar
57. Spruill, Julia Cherry Women’s Life and Work in the Southern Colonies (New York: W.W. Norton, 1972).Google Scholar
58. See Williams, Patricia “The Obliging Shell: An Informal Essay on Formal Equal Opportunity” (1989) 87 Mich. L. Rev. 2128.Google Scholar
59. See Greene, Linda S. “Multiculturalism as Metaphor” (1992) 41 DePaul L. Rev. 1173.Google Scholar
60. See Corcoran, Mary et al., “Myth and Reality: The Causes and Persistence of Poverty” (1985) 4 J. of Pol’y Analysis & Mgmt 516.Google Scholar
61. Pocahontas was the daughter of Chief Powhatan. In 1612, after having befriended the first colonists at Jamestown in Virginia, she was abducted from her band, converted, baptized, christened Rebecca and married off to a widower “for the good and honour of the Plantation” and in spite of her “rude manners and accursed generation”. Thereafter, she was trundled off to England to meet the Queen, and was later used to influence the local Native communities to surrender more and more land. Prior to her death, she expressed a desire to return to her father’s band, but this was denied and she wound up in the cemetery at Jamestown. (Julia Cherry Spruill, supra note 57).
62. See Giffin, John H. Black Like Me (New York: Signet, 1960).Google Scholar
63. Patricia A. Monture describes the importance of recognizing (but not co-opting) the pain suffered by culturally marginalized peoples: see “Ka-nin-geh-heh-gah-e-sa-nonh-yah-gah” (1986–88) 2 Can. J. Women & the Law 159.
64. See Our Land, Our Government, Our Heritage, Our Future (Ottawa: Assembly of First Nations, 1990). See also legal text, Charlottetown Accord (Summerstown, Ont.:Queen’s Printer, 1992).
65. See Rhode, D.L. “Perspectives on Group Representation” (1992) 80 Kent. L.J. 887;Google Scholar Garet, Ronald R. “Dancing to Music: An Interpretation of Mutuality” (1992) 80 Kent. L.J. 893;Google Scholar Patterson, Lindsey “Individual Rights and Group Wrongs: An Alternative Approach to Affirmative Action” (1986) 56 Miss. L.J. 781 at 783;Google Scholar See also Steskal, Christopher “Creating Space for Racial Difference: The Case for African American Schools” (1992) 27 Harv. C.R-C.L.L.R. 187;Google Scholar Rosenfeld, Michel “Substantive Equality and Equal Opportunity: A Jurisprudential Appraisal” 74 Cal. L. Rev. 1687 at 1708.Google Scholar