Become a Patreon!
Abstract
Excerpted From: Chris Chambers Goodman and Natalie Antounian, Dismantling the Master's House: Establishing a New Compelling Interest in Remedying Systemic Discrimination, 73 Hastings Law Journal 437 (February, 2022) (215 Footnotes) (Full Document)
I. Preamble
Extensive academic research and data document numerous ways that Black and brown Americans experience life in the United States differently from their white counterparts. Often referred to as systemic/institutional discrimination, it is ingrained in society through the policies and practices of institutions like schools, government agencies, and law enforcement. Research and data show that these disparities exist along nearly every facet of American life, including employment, wealth, education, home ownership, health care, and incarceration.
Many argue that institutional/systemic discrimination is not intentional, and the U.S. Supreme Court has disallowed the use of societal discrimination to justify remedial/race-conscious measures, on the grounds that the “discrimination” does not result from deliberate actions of public officials but rather from choices made by private individuals.
The Court's failure to find general societal discrimination as purposeful has caused it to perceive the issue of resolving our nation's continuing racial issues as something that lies beyond the responsibility and competence of the federal government.
Thus, the historical treatment of racial minorities as inferior has had a pervasive effect on society. Even more, our nation's institutional norms, practices and procedures were created during the days of explicit racial discrimination and are not neutral themselves.
As a result, minority populations continue to be systematically underrepresented in the allocation of employment, education, and political opportunities. In turn, this underrepresentation has caused racial minorities to have lower standards of living, higher vulnerability to crime, poorer health, and shorter life expectancies than members of the white majority.
An affirmative action program is a tool designed to ensure equal opportunity in education. A central premise underlying affirmative action is that, absent discrimination, over time a program's applicant pool generally, will reflect the racial and ethnic profile of the populations from which the program recruits and selects.
Affirmative action programs contain a diagnostic component which includes a number of quantitative analyses designed to evaluate the composition of the student body and compare it to the composition of the relevant applicant populations.
Affirmative action programs also include action-oriented programs. If applicants of color are not being offered admission at a rate to be expected given their availability in the relevant population, the affirmative action program should include specific practical steps designed to address this underutilization.
Effective and narrowly tailored affirmative action programs also include internal auditing and reporting systems as a means of measuring the progress toward achieving the student body that would be expected in the absence of discrimination.
An affirmative action program also ensures equal opportunity by institutionalizing the institution's commitment to equality in every aspect of the educational process. Therefore, as part of its affirmative action program, monitoring and examining educational policies and practices, as well as their impact on under-represented groups, is crucial.
Therefore, after extensive research, Congressional hearings and fact-finding, Congress hereby declares the following:
That there is a strong basis in evidence that systemic racial and ethnic discrimination is real, and that it continues to impact the lives of people of color.
That there is a strong basis in evidence to conclude that institutional structures, both governmental and non-governmental, have in the past perpetuated, and continue to perpetuate, discriminatory outcomes for people of color.
That Congress has a compelling interest in remedying this past and present discrimination authorizing the use of race-conscious measures, including but not limited to affirmative action.
be advised Congress reserves the right to supplement additional support from congressional studies upon conclusion of further hearings and fact-finding efforts.]
This statute is hereby enacted as RISDA: Remedying Institutional and Systemic Discrimination Act
General.
No person in the United States shall, on the ground of race, color, or national origin be excluded from participation in, be denied the benefits of, or be otherwise subjected to institutional or systemic discrimination under any program to which this part applies.
(b) Affirmative Action.
(1) In administering a program regarding which the recipient has previously discriminated against persons on the ground of race, color, or national origin, the recipient must take affirmative action to overcome the effects of prior discrimination.
(2) Even in the absence of prior individual or institutional discrimination, a recipient in administering a program may take affirmative action to overcome the effects of systemic discrimination, and other conditions which resulted in limiting participation by persons of a particular race, color, or national origin.
(3) Institutions that wish to implement affirmative action programs must establish a strong basis in evidence, such as statistical evidence, policy evaluations, social science evidence, documentary evidence or prior findings of discrimination, to justify the remedial policy, OR
(4) May rely upon these Congressional findings of systemic discrimination in education to justify the remedial policy.
Straus Research Professor and Professor of Law, Pepperdine Caruso School of Law; J.D., Stanford Law School; A.B. cum laude, Harvard College.
Attorney, J.D. Pepperdine Caruso School of Law (2021), M.D.R Pepperdine Caruso School of Law Straus Institute for Dispute Resolution (2021), B.A. University of Southern California (2018).Excerpted From: Chris Chambers Goodman and Natalie Antounian, Dismantling the Master's House: Establishing a New Compelling Interest in Remedying Systemic Discrimination, 73 Hastings Law Journal 437 (February, 2022) (215 Footnotes) (Full Document)
Author: Chris Chambers Goodman and Natalie Antounian
Title: Dismantling the Master's House: Establishing a New Compelling Interest in Remedying Systemic Discrimination
Then: Proposition 187 denies services to undocumented immigrants in California. Aspiring gubernatorial candidate Pete Wilson champions Proposition 209, which eliminated affirmative action in California public education, employment, and contracting. Similar initiatives carried over to other states.
Now: Black Lives Matter. DACA continues. Qualified immunity for misuses of deadly force is up for review. In higher education, the use of affirmative action has been repeatedly upheld, but the Supreme Court is considering whether to grant a hearing in the latest case involving Harvard College. In California, Proposition 16, which would have overturned Proposition 209, was voted down on the November 2020 ballot, thus continuing the state's prohibition on considering race, ethnicity, color, national origin, or gender in public contracting, employment, and education. Polls show that a majority of the public support affirmative action generally, but oppose the specific use of race and ethnicity in making hiring and admissions decisions. Thus, voter initiatives are not the best way to try to entrench and preserve affirmative action in higher education.
Recent litigation brought cause for concern, but Harvard successfully defended the anti-affirmative action lawsuit at the trial and appellate stages. The University of North Carolina (UNC) had its trial in November 2020, where the Court found that the University did not discriminate against white and Asian American applicants in admission. Thus, litigation has been successful, to a point, in preserving affirmative action. But the composition of the current U.S. Supreme Court suggests that the majority will be receptive to plaintiffs challenging affirmative action programs. Support of the diversity and inclusion rationales may be waning, and the 2028 “sunset” clause language in Justice O'Connor's Grutter opinion provides a strong justification for the Court to reconsider diversity as a compelling government interest in higher education before the end of this decade. Equity abhors a vacuum, and so this Article promotes a return to remedial justifications for affirmative action programs and policies.
Since Wygant v. Jackson Board of Education and City of Richmond v. J.A. Croson Co., the U.S. Supreme Court has held that remedying “societal discrimination” is not a compelling interest to justify race-conscious programs, but remedying present discrimination is. This Article posits that “institutional discrimination” is past discrimination multiplied and perpetuated. It will analyze how dismantling institutional discrimination meets the compelling government interest in remedying past discrimination. Just as separate was inherently unequal, restricting government actors from taking race-conscious steps to reduce and eventually eliminate institutional discrimination means inequities will remain.
When segregation is de facto, which means that it is not based on laws but rather based on individual choices, the current Supreme Court doctrine holds that it violates the Constitution to take racially explicit steps to reverse it. Because the Court majorities have viewed racial discrimination as occurring when a racist individual externalizes, or intentionally acts upon, feelings of bias and prejudice, it is also fair to say that racial discrimination occurs when institutional processes function to unfairly disadvantage a racial group. Thus, de facto discrimination should be remediable; it should be considered a compelling interest sufficient to justify a race-conscious remedy under the strict scrutiny test. In the education context, for instance, it illustrates the unfair and discriminatory treatment many minority students experience under a school district's “race-neutral policies.”
Part I of this Article begins with an overview of the strict scrutiny standard, providing background on what are and are not compelling government interests, and what meets the narrowly tailored element. After exploring the Court's dismantling of the societal discrimination justification for affirmative action programs, Part II makes the case that remedying institutional discrimination is equivalent to remedying past and present discrimination and therefore should be a compelling government interest. The artificial distinction between de jure and de facto discrimination ignores the law's complicity in constructing institutional and systemic discrimination. As Adarand deconstructed the distinction between invidious and benign preferences, years of social science research and data have shown that the present effects of past discrimination have maintained racial disparities along nearly every facet of American life, including employment, wealth, education, home ownership, health care, and incarceration. Part II also explains how a different and more inclusive outcome regarding the Court's interpretation of de facto segregation would be an appropriate change to reduce the impact of current systemic discrimination in our nation's public education system.
Part III analyzes the evidence showing how existing affirmative action policies help combat the effects of institutional discrimination through the lens of the current litigation at the University of North Carolina, the recent Harvard trial, and the outcomes at the University of California schools (the “UCs”) after the elimination of affirmative action in 1996, which undermined that system's ability to realize the compelling government interest in obtaining the educational benefits that flow from diversity. The potential sunset of the diversity justification in higher education means that other strategies need to be developed now to fill the void that could occur before 2028. Part IV concludes the Article with a brief discussion of why U.S. Supreme Court litigation is not likely to preserve affirmative action, and suggests that a better route is in drafting model legislation, building off the requirements in Title VI, to mandate affirmative action in public education as a remedy for institutional and systemic discrimination.
[. . .]
In conclusion, this Article demonstrates that systemic/institutional racism is past and present discrimination compounded and multiplied. Therefore, remedying institutional discrimination should be considered a compelling government interest to justify race-conscious remedies, and the fake dichotomy of de jure and de facto segregation and discrimination should be dismantled.
The current U.S. Supreme Court is not likely to consider this claim and thus congressional legislation is the preferred approach. Admittedly, it is a tough sell in the House and Senate, and there are about nine months left to try before the midterm elections. Some may suggest using an Executive Order, but the “policy whiplash” that results from a change in administrations would put a substantial burden on colleges and universities, not to mention students and applicants, especially given the greater financial and other strains due to the COVID-19 crisis.
Given the narrow majorities in Congress, and the fact that not all Democratic congresspersons are supportive of race-based affirmative action, a compromise proposal that combines class and race-based affirmative action might be necessary to obtain support from a majority of the House and Senate. Let us begin. Now is the time to start the negotiations, while the sun remains high in the sky, before sunset arrives.
Straus Research Professor and Professor of Law, Pepperdine Caruso School of Law; J.D., Stanford Law School; A.B. cum laude, Harvard College.
Attorney, J.D. Pepperdine Caruso School of Law (2021), M.D.R Pepperdine Caruso School of Law Straus Institute for Dispute Resolution (2021), B.A. University of Southern California (2018).
Become a Patreon!
