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14 Harv. C.R.-C.L. L. Rev. 133 (1979)
Beyond Bakke: The Constitution and Redressing the Social History of Racism

handle is hein.journals/hcrcl14 and id is 141 raw text is: BEYOND BAKKE: THE CONSTITUTION AND REDRESSING THE SOCIAL HISTORY OF RACISM Robert Allen Sedler* The crucial constitutional issue today in the area of racial equality is the extent to which governmental entities1 are required or permitted to take action to redress the present consequences of the social history of racism in this nation.2 Full redress for this history of racism would require equalization of the societal position of blacks as a group3 with that of whites as a group. It would mean ending white supremacy in all of its manifestations and, in the words of Justice Marshall, achieving genuine equality4 between blacks and whites in American society. The effort to achieve genuine racial equality must reconcile blacks' and whites' conflicting perceptions of the relationship between * Professor of Law, Wayne State University. B.A. 1956, J.D. 1959, University of Pittsburgh. The author would like to thank Bruce Baltar for his work gathering the statistical data for the first section of this Article. Governmental entities refers to agencies of federal, state, and local govern- ments and to the courts. 2 See pp. 136-39 infra. 3 Although this Article focuses on blacks, the social history of racism has also had an adverse impact on other racial-ethnic groups, such as Hispanics and Native Americans, who, like blacks, have been subject to discrimination and victimization because the dominant majority has perceived them as nonwhite. See, e.g., Keyes v. School Dist. No. 1, 413 U.S. 189, 197-98 (1973) (educational opportunities of Hispanics). For constitutional purposes, the legislature should be able to conclude that the needs and values of governmental actions designed to provide equality for blacks are applicable to these groups as well. See Regents of the Univ. of Cal. v. Bakke, 98 S. Ct. 2733, 2784 n.35 (1978) (Brennan, White, Marshall & Blackmun, JJ.). It should be noted that Justice Powell's discussion in Bakke of the difficulty in determining which groups should receive preference, id. at 2751-53 (Powell, J.), was in the context of holding that the use of race-conscious criteria favoring minorities was subject to strict scrutiny; Justice Powell did not indicate that the legislature was precluded from assimilating other nonwhite groups to blacks for purposes involving the use of race-conscious criteria. More detailed discussion of the use of racial criteria to favor other racial-ethnic groups, however, is beyond the scope of this Article. 4 98 S. Ct. at 2804 (Marshall, J.).