¹ From a Colloquium presented by Judge Edwards as the 1989 Justice Lester Roth Lecturer at the University of Southern California Law Center. Judge Edwards graciously granted me permission to publish this excerpt from his remarks. He wishes me to make clear that in context he was reflecting on what I refer to as the double bind problem (see Section II below), and that he supports affirmative action (letter dated March 12, 1990 to the author from Harry T. Edwards, United States Circuit Judge, United States Court of Appeals, District of Columbia Circuit).

² In this essay I am not attempting to start philosophically at square one, but rather am addressing readers who already accept certain basic premises about the nature of our society and its entrenched categories of subordination. At the most general level, in a society that has “noticed” race and sex by taking inferiority and degrading stereotypes for granted, I believe that the only way to make progress is first to “notice” that these stereotypes exist and that they are incorrect and unjust. This cannot be done without “noticing” race and sex in a way that is different and better than the status quo.

³ As Kimberlé Crenshaw points out, to characterize the categories of subordination in this way risks focusing on men of color and white women, to the exclusion of women of color. I am conscious of the problem but do not know an acceptable alternative phraseology. See Crenshaw, Kimberlé, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics,” University of Chicago Legal Forum, vol. 1989, p. 139.Google Scholar

⁴ I affirm that the social order still wrongfully subordinates people of color and women while acknowledging that the government no longer overtly mandates subordination. The social order is broader than die direct mandates of government. Subordination is perpetuated in our categories of discourse and habitual forms of life – in the social construction of reality. We all inherit the categories of discourse and modes of action made possible and necessary by slavery and coverture.

⁵ See Lawrence, Charles R. III, “Segregation ‘Misunderstood’: The Milliken Decision Revisited,” University of San Francisco Law Review, vol. 12 (1977), pp. 37–38Google Scholar (describing the self-perpetuating character of institutions of social subordination). In this paper I certainly do not mean to deny that such remedies are sometimes required, and thus, even if the goal of affirmative action is conceived of as mere nondiscrimination, my view diverges from the prevalent view of the current Court. Supreme Court doctrine now demands that “intent” to discriminate be shown, and that beneficiaries be identifiable victims of past discrimination by the defendant, before states can constitutionally implement affirmative action programs (in the sense of race- or gender-conscious decision-making).

See, e.g., City of Richmond v. Croson, 109 S. Ct. 706 (1989). Although Congress may have somewhat broader power to implement affirmative action (see, e.g., Metro Broadcasting v. Federal Communications Commission, 110 S.Ct 2997 (1990)), this is a very narrow view. It apparently excludes from legal attack (at least by means of affirmative action) large social domains still burdened by oppressive hierarchies based on race and gender. I hold, contrary to current majority legal discourse, that affirmative action can be justified by “aspirations for the future,” even if those aspirations cannot be grounded in specific intentional past acts by a particular actor. See Sullivan, Kathleen M., “Sins of Discrimination: Last Term's Affirmative Action Cases,” Harvard Law Review, vol. 100 (1986), pp. 78, 96.Google Scholar

⁶ In “Reconstructing Sexual Equality,” California Law Review, vol. 75 (1987) p. 1284, Christine A. Littleton proposes a model of “equality as acceptance.” It is an asymmetrical model of equality such that “the difference between human beings, whether perceived or real, and whether biologically or socially based, should not be permitted to make a difference in the lived-out equality of those persons.”

⁷ See Matsuda, Mari J., Comment presented at U.S.C. Symposium on “The Renaissance of Pragmatism in American Legal Thought,” February 23, 1990Google Scholar (forthcoming in Southern California Law Review, 1990). As I understand it, this is the thrust of the emerging Critical Race Theory. See Delgado, Richard, “When is a Story Just a Story: Does Voice Really Matter?”, Virginia Law Review, vol. 76 (1990), p. 95CrossRefGoogle Scholar n.1 (describing Critical Race Theory).

⁸ In this paper, I am largely leaving aside the broad issues of how the second- and third-level questions can be resolved. Most of the time the point I wish to make about the effect of the nonideal rhetoric does not depend upon which ideal position we espouse. Sometimes I shall assume the “mere nondiscrimination” position for the sake of simplicity, since it is the least radical and probably the least controversial. I do not mean to endorse uncritically its categories of neutrality and objectivity.

⁹ In 1982 the math section of the LSAT was removed, apparently identified as non-predictive of law school performance. Various studies have suggested that standardized tests containing math components underpredict women's academic performance. See, e.g., Doolittle, Allen and Cleary, T. Anne, “Gender-Based Differential Item Performance in Mathematics Achievement Items,” Journal of Education Measurement, vol. 24 (1987), p. 157CrossRefGoogle Scholar (identifying gender-based math performance differential on standardized tests); Leann Ganache and Novick, Melvin, “Choice of Variables and Gender Differentiated Prediction within Selected Academic Programs,” Journal of Education Measurement, vol. 22 (1985), p. 53Google Scholar (identifying the tendency of standardized tests such as the SAT and ACT to underpredict women's academic performance).

¹⁰ By ideal justice I mean the just world of ideal theory, and by nonideal justice I mean the best alternative now available to us in a nonideal (not perfectly just) world. For discussion of the ideal and nonideal senses of justice, see Margaret Radin, Jane, “Justice and the Market Domain,” in Markets and Justice (Nomos XXXI), eds. J., Pennock & J., Chapman (New York: New York University Press, 1989).Google Scholar See also Radin, Margaret Jane, “Reconsidering the Rule of Law,” Boston University Law Review, vol. 69 (1989), p. 816.Google Scholar

¹¹ For more discussion of the problem of the double bind that arises in trying to effect political transition from die nonideal world to one that instantiates our ideals of justice, see Radin, , “Market-Inalienability,” Harvard Law Review, vol. 100 (1987), pp. 1915–17CrossRefGoogle Scholar; see also Radin, Margaret Jane, “The Pragmatist and the Feminist” (forthcoming in Southern California Law Review, 1990).Google Scholar

¹² See Lawrence, Charles R. III, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism,” Stanford Law Review, vol. 39 (1987), p. 317.Google Scholar

¹³ This story is related in Kennedy, Randall, “Racial Critiques of Legal Academia,” Harvard Law Review, vol. 102 (1989), pp. 1745CrossRefGoogle Scholar, 1798 n. 240.

¹⁴ Charles R. Lawrence III, ‘Derrick Bell Superstar (And He Looked Good Doing It Too)’ quoted in Lawrence, “The Word and the River: Pedagogy as Scholarship as Struggle” (forthcoming, Stanford Law Review). Even superstars are not home free: “No white scholar of comparable stature would have faced the demeaning treatment that Derrick Bell received at Stanford Law School in 1986 when white students and professors, dissatisfied with his performance as a teacher, surreptitiously created a remedial series of lectures to supplement his course on constitutional law.” Randall Kennedy, “Racial Critiques of Legal Academia,” p. 1767.

¹⁵ Indeed, the confusion in one's own self-conception is a deep manifestation of the double bind. See Margaret Jane Radin, “The Pragmatist and the Feminist,” (we struggle to make our perspective coherent in order to make it – ourselves – real).

¹⁶ See Paludi, Michele A. and Strayer, Lisa A., “What's in an Author's Name: Different Evaluation of Performance as a Function of Author's Name,” Sex Roles, vol. 12 (1985), p. 353CrossRefGoogle Scholar; Position Paper, Women and Tenure: Opportunity of a Century, American Association of University Women (1989).

¹⁷ The dominant academic genre is impersonal and “objective.” But to those not in the dominant group, “objectivity” merely expresses the values of those in power. Scholars who are women or people of color sometimes find that they must seek other genres – fiction, personal narrative, dialogue, poetry – in order to express their message. See, e.g., Delgado, Richard, Storytelling for Oppositionists and Others: A Plea for Narrative, Michigan Law Review, vol. 87 (1989), p. 2439.CrossRefGoogle Scholar For examples of writers who deliberately depart from the traditional model of legal scholarship because they believe that the model would suppress their different voices, see, e.g., West, Robin, “The Difference in Women's Hedonic Lives,” Wisconsin Women's Law Journal, vol. 3 (1987), p. 81Google Scholar; Williams, Patricia, “On Being the Object of Property,” Signs, vol. 14 (1988), p. 5CrossRefGoogle Scholar; Bell, Derrick, “Foreword: The Civil Rights Chronicles,” vol. 99 (1985), p. 4Google Scholar; Charles R. Lawrence III, “The Word and the River.”

¹⁸ Kennedy, “Racial Critiques of Legal Academia,” pp. 1818–19 n. 308. The phrase “similar work by whites” may be read to harbor an assumption that whites understand “the” standard of merit and merely misunderstand whether people of color have conformed to it. Many would argue, however, that standards of merit are essentially contested and there is no reason to suppose that there is only one standard, nor indeed, if there is, that whites have privileged knowledge of it. See note 17 above.

¹⁹ See text accompanying note 11 above.

²⁰ Minow, Martha, “Foreword: Justice Engendered,” Harvard Law Review, vol. 101 (1987), p. 47.Google Scholar

²¹ Ibid.

²² [Affirmative action] has enabled blacks to attain occupational and educational advancement in numbers and at a pace that would otherwise have been impossible. These breakthroughs engender self-perpetuating benefits: the accumulation of valuable experience, the expansion of a professional class able to pass its material advantages and elevated aspirations to subsequent generations, the eradication of debilitating stereotypes, and the inclusion of black participants in die making of consequential decisions affecting black interests.

Kennedy, Randall, “Persuasion and Distrust: A Comment on the Affirmative Action Debate,” Harvard Law Review, vol. 99 (1986), p. 1329.CrossRefGoogle Scholar

²³ Current Supreme Court doctrine puts many voluntary and state-mandated affirmative action programs at risk. See note 5 above.