Affirmative Action after Grutter: Reflections on a Tortured Death, Imagining a Humanity-Affirming Reincarnation

Abstract

This article argues that the standard "diversity" rationale for affirmative action is not a remedial or corrective justice-based rationale. Thus, it fails to address the concerns of traditionally disadvantaged groups. The most compelling justifications for affirmative action, including remedying the effects of segregation, discrimination, and related past and present forms of systemic subordination, have received little judicial support. If employed, these justifications would strengthen the claims to legitimacy of a justice system with a history of supporting racial oppression. The final portion of this article calls upon advocates of reform and Reconstruction to work toward forging a deeper commitment to the remedial goals of affirmative action as a preliminary step toward embracing "humanity consciousness" and articulating reformist policies and programs consistent with this legal philosophy.

Keywords: constitutional law, humanity consciousness, Affirmative action, Grutter, Gratz, diversity, race, reconstruction, post-slavery America