Gerald Torres

Grutter v. Bollinger/Gratz v. Bollinger: View from a Limestone Ledge

June 22, 2003 was a typically sultry summer day in Austin. The kids were swimming; white clouds with no promise of rain moved slowly across the sky. The sky itself was that bleached-out blue that it gets as summer starts to envelop the hill country and life seems to slow down to match the climate. I was sitting with one colleague watching our kids swim, and we were visiting with a former colleague who was in town connecting with old friends and shepherding his children around to see their friends. We were discussing the cases still pending before the Supreme Court and especially the Michigan cases. We had all listened to the oral arguments and had participated in the drafting of amicus briefs for this organization or that one. We each had our view about how the Court would decide

Neoliberalism and affirmative action

This essay surveys the origins and development of race-conscious affirmative action in the United States. It tracks opposition to affirmative action and the ascendancy of neoliberal ideology in American law and policy. All important legal and policy changes concerning affirmative action have their roots in conflict over the meaning of constitutional equality. It is not surprising, therefore, that the neoliberal account of racial equality would be fought on those grounds as well. The curious aspect of this conflict is its oddly dehistoricized texture. Although the state is deeply implicated in the racial inequality we still observe today, the state is largely prohibited from taking that role into account in fashioning remedies if it departs from a stance of racial objectivity. Neoliberalism has succeeded because its proponents have been able to fix the current deeply racialized and deeply unequal reality as the neutral baseline. Action by the state to move from this baseline thus requires a robust justification that does not, itself, seem racially based.