“Where do we come from? What are we? Where are we going?” This is the title of artist Paul Gauguin’s final painting, done in 1897.
As a former student of art history turned lawyer, the title of this piece has been circling in my head recently. These questions are particularly important for attorneys, since we are in many ways champions of and complicit in a legal system built on white supremacy. Do we, as legal advocates, acknowledge the white supremacist framework that undergirds the system we work within? (Where do we come from).
Are we perpetuators of racism by turning a blind eye to the complex color dynamics implicit in the system? (What are we).
Should we, as persons in positions of power within an elite class that creates, interprets, and uses laws to one party’s advantage over another, consider a new path forward that makes the implicit bias in the law explicit? Moreover, should we take steps—even small steps—to dismantle and rebuild our problematic system that, in the criminal sphere, imprisons too many persons of color and, in the civil sphere, imposes harsh monetary punishments that result in insurmountable debt and impaired credit for too many non-White families? (Where are we going).
In a New York Times Magazine article about the Black Lives Matter (BLM) movement published in late June of this year, Nikole Hannah-Jones remarked that the most tragic outcome of this moment, in which the BLM movement is gaining greater speed, would be to “be too timid.” In light of Gauguin’s prophetic questions and Hannah-Jones’ pressing challenge, an answer and a response for California voters is to vote, in November 2020, to permit affirmative action in our state. If we vote to allow affirmative action in colleges, universities, and certain government positions in California, we will be reversing a prohibition that has been in place for almost two and a half decades.
Reversing this prohibition on the holistic consideration of an individual—including—their race matters because whether it’s a spot in one of California’s prestigious universities or a position in local government, these positions are ones of opportunity. These opportunities, in turn, help persons to gain wealth and/or power in our society. The current system refuses to acknowledge in our admissions processes that a Black American may have gone to a poorly funded public high school with few honors or advanced placement classes or been unable to afford SAT test prep, or that a Black American later in life may have been unable to work for free for a governor’s campaign to gain legislative experience. By applying the same “race-neutral,” “meritocracy” metrics to all, Black Americans will be much less likely to be able to enter these rarefied spaces. In other words, we must change who has access to wealth and power in order to change where we are going.
As a lawyer, I think it is helpful to trace the profession’s thinking about race—the precedent, if you will—before delving into the kind of bold action that is now required of us, and which Californians have the opportunity later this year to actualize.
To begin, the civil rights era of the 1950s and 1960s culminated with the passage of laws such as the Fair Housing Act of 1968, prohibiting legal discrimination. But these laws were not retroactive. Rather, as Hannah-Jones noted, the laws were entirely prospective; there was no acknowledgment of the historical context of Black Americans within American society nor a serious contemplation of remedies for the actual past harm they had suffered for generations.
Following the civil rights movement, Critical Race Theory (CRT) emerged in the legal sphere. Critical Race Theory encouraged law students and lawyers to consider race and the political nature of the law. This moment was short-lived, though, and by the 1980s and 1990s there was a retrenchment in the law caused in part by the addition of numerous right-wing judges to the judiciary. As the legal scholar Kimberlé Williams Crenshaw describes in Unmasking Colorblindness in the Law: Lessons from the Formation of Critical Race Theory, however, right-wing judges were not the only reason for the shift away from CRT in the law. Instead, race was whitewashed out of the law due to a scholarly, multi-disciplinary belief in “objectivity” and “science” that permeated academic thinking and to which the law was not immune. This belief— and faith, moreover—in neutral “truths” took particularly deep root in the law, Williams Crenshaw argues, since the legal field had long thought of itself as apolitical.
Consequently, as Dwanna L. Robertson argues in her article “Invisibility in the Color-blind Era: Examining Legitimized Racism against Indigenous Peoples,” a distaste for purported subjectivity combined with the confidence of having “ended” racism by making explicit discrimination illegal resulted in the U.S. legal profession, and society at large, embracing the concept of color-blindness. As Robertson writes, when racism was made illegal, White Americans had a naive belief that racism no longer impacted social mobility. But this failure to acknowledge race simply justified persistent racial inequality as the outcome of nonracial dynamics. Further, colorblind racism made it more challenging to dismantle this system of White privilege. As Robertson writes in her article, quoting another legal scholar Eduardo Bonilla-Silva, colorblind racism is “void of direct racial terminology.” Until recently, we—as members of the legal profession and as members of society more broadly—have still largely been in this silent colorblind moment, which has prevented the profession from truly grappling with the systemic racism that permeates the law. (How many times have we heard politicians in the last decades say “I don’t care if he’s White, Black, or purple”?).
Now, in 2020, protestors’ demands that we “say their names”—referring to the names of recent Black Americans who have been murdered by police or White self-claimed “vigilantes”—is particularly powerful. Until recently, the colorblind era had forbidden mainstream society from talking about race as a relevant factor in conversations about society’s inequities.
Affirmative action is, in a way, directly opposite to the concept of colorblindness: it requires direct consideration of race. Affirmative action is also a remedy that looks backwards, attempting to compensate for the way in which society has long been rigged in favor of White Americans. Thus, affirmative action creates change in a way that prospective anti-discrimination laws cannot.
Williams Crenshaw, in Unmasking Colorblindness, describes “the pool problem” in an anecdote about Harvard Law School in the 1980s. She details how Harvard administrators resisted widening their pool of applicants for law professor positions in 1982, despite Black law students’ pleas for a single professor of color on-staff, citing that they only chose the “highest caliber” to teach at their preeminent law school and that group did not include many Black law professors. As she notes, however, “it was entirely unsurprising that candidates of color would not readily emerge from a pool they had largely been prohibited from entering,” while “[the administrators’] commitment to integrating the faculty was realized by remaining ever vigilant to see what unlikely candidates might crawl out of the pool rather than rethinking the fundamental question of how the pool was populated in the first place.”
In other words, it is not enough to merely look at the present status of Black Americans in our society and strive to include them—the rare few who are able to emerge from the pool—in some of the preeminent spaces that Whites have long occupied. White Americans need to own up to federal policies like the New Deal in the 1930s that did not just not support Black Americans, but actively disadvantaged them. The New Deal policies created what was essentially an era of White affirmative action, with federally supported redlining separating out Black communities into areas where banks would not give out homeowner loans, while giving inordinate preference and reduced rates to first-time White homeowners. Thus, for those who feel uncomfortable with giving “preference” to Black Americans based on the color of their skin, it is worth recalling federal policies like the New Deal and acknowledging that, as Hannah-Jones points out in her New York Times article, “White Americans [have had a] centuries-long economic head start.”
The case law relating to affirmative action in the past has also never acknowledged how the status quo selection paradigm’s purportedly meritocratic baselines actually reinforce racialized power structures. They also fail to recognize that a worthwhile goal of affirmative action is to overcome those functionally exclusionary practices. In Regents of University of California v. Bakke, the U.S. Supreme Court focused its holding on prohibiting a quota with regards to admitting persons of color into a graduate school program. In Grutter v. Bollinger and Fisher v. University of Texas at Austin, the Court distinguished the admissions programs from the admissions program in Bakke and deemed them acceptable because they considered race without a quota. But in all three cases, the Court focused on diversity’s benefit to the educational learning environment as a whole. What these cases did not focus on is the need to help Black Americans catch up to White Americans. Rather, the Court was primarily concerned with how majority White Americans would benefit from having a more diverse student body.
In 1996, Proposition 209 was put on California’s November ballot. The proposition recommended that California amend its state constitution to prohibit state governmental institutions from considering race, sex, or ethnicity in public employment, public contracts, or public education. Although affirmative action advocates and traditional civil rights and feminist organizations opposed it, Proposition 209 was voted into law with 55 percent of the vote. However, in a 2015 study at University of California, Riverside, researchers found that “the UC system has never recovered the same level of diversity that it had before the loss of affirmative action nearly 20 years ago—a level that at the time was widely considered to be inadequate to meet the needs of the state and its young people.” (In other words, affirmative action in the United States was often wrongly conceived of by those in power as a way to add “colorful” bursts of diversity to a still-majority White group without upsetting the long in place power structures of White hegemony. But even so, the lack of any affirmative action is still far more detrimental in that it reduces even more the possible reconfiguring of those in power.) Proposition 16, on the November 2020 ballot, is California’s opportunity then to redeem itself: Proposition 16 will repeal the provisions enacted by Proposition 209.
The language surrounding the goals of affirmative action is shifting, though, from the historic rhetoric about diversity and towards language that acknowledges the racial inequities that underpin society’s institutions. Current UC President Janet Napolitano stated last month, for instance, that “Proposition 209 has forced California public institutions to try to address racial inequality without factoring in race.” President Napolitano’s comment, to wit, articulates the point that as a society we cannot overcome racism without addressing it head-on.
In short, then, for all the foregoing reasons, now is the time to reconsider California’s ban on affirmative action. This is not the time to be timid, and if the BLM protests are any indication, non-Black Americans are finally ready to invite Black Americans into their exclusive spaces—not because diversity is trendy, but because reparations are long overdue for Black Americans.
Zoe Brown is a staff attorney and clinical supervisor with the East Bay Community Law Center’s Housing Practice. She received her J.D. from the University of Oregon School of Law in 2011.
Recommended Citation: Zoe Brown, Affirmative Action in California as a Type of Long-Overdue Reparations for Black Americans, Calif. L. Rev. Online (Aug. 2020), http://www.californialawreview.org/affirmative-action-in-california/.