The Law of Affirmative Action: Twenty-Five Years of Supreme Court Decisions on Race and Remedies

By Girardeau A. Spann | Go to book overview

1
Affirmative Action

The contemporary debate about race in the United States is perplexing.1 Each side seems genuinely to feel distressed at the demands being made by the other. Racial minorities point to Dred Scott's2 insistence on racial castes, Plessy's3 endorsement of official segregation, and Brown's4 reluctance to remedy unlawful discrimination as evidence that the white majority is inevitably inclined to advance its own interests at minority expense. Minority group members, therefore, tend to argue that the only way to arrest this majoritarian inclination is through the use of race-conscious remedial programs that will ensure an equitable distribution of resources. Most members of the white majority concede past transgressions but warn of the need for fairness in fashioning remedies, asserting that members of the present majority rarely commit acts of overt discrimination, and that members of the present minority are rarely among the actual victims of past discrimination. Members of the white majority, therefore, tend to argue that the only way to end racial discrimination is through a prospective commitment to race neutrality, stressing the irony inherent in using racial classifications to remedy the racial discrimination of the past. Accordingly, the nation's debate about the significance of race, which began with slavery and persisted through the era of official segregation, has now converged on the contentious issue of affirmative action. In the early years, the Supreme Court gave qualified support to the concept of racial affirmative action, but in recent years, a majority of the Court has consistently opposed affirmative action programs.

This book attempts to chronicle the evolution of the Supreme Court's law of affirmative action during the past twenty-five years—the years during which the Court first began to struggle with the affirmative action issue. The Supreme Court's 1974 decision in DeFunis v. Odegaard5 marked the beginning of the modern Court's entanglement with what has now come to be known as racial affirmative action. And the controversy that the Court initially left unresolved in DeFunis has thus far persisted through the

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