Matthew D. Reade, Talking About Affirmative Action
Coleman Hughes, Affirmative Action: Towards a Coherent Debate
Richard H. Sander, Fifteen Questions about Prop. 16 and Prop. 209
Girardeau A. Spann, Good Trouble
Jonathan P. Feingold, “All (Poor) Lives Matter”: How Class-Not-Race Logic Reinscribes Race and Class Privilege
Anthony S. Chen & Lisa M. Stulberg, Before Bakke: The Hidden History of the Diversity Rationale
Amy L. Wax, Pursuing Diversity: From Education to Employment
Richard Thompson Ford, Affirmative-Action Jurisprudence Reflects American Racial Animosity, but Is Also Unhappy in Its Own Special Way
Peter Arcidiacono, Josh Kinsler & Tyler Ransom, Affirmative Action, Transparency, and the SFFA v. Harvard Case
Daniel E. Ho & Alice Xiang, Affirmative Algorithms: The Legal Grounds for Fairness as Awareness
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Talking About Affirmative Action
Introduction by Matthew D. Reade1Executive Online Editor, The University of Chicago Law Review; Pomona College, B.A. 2018; The University of Chicago Law School, J.D. 2021. I’m grateful to the many people who took time to review and critique early drafts of this introduction, including Brian Sanders, Nathan Tschepik, Taiyee Chien, Jessica Lee, and Daniel Simon. Taiyee Chien deserves special thanks for his steadfastness, equanimity, and clarity of purpose as we assembled, advocated, and edited this series. I also thank the participating authors and the Online Editors of The University of Chicago Law Review. In these times, standing for fulsome, open, and honest debate is no small act of courage.
On October 27, 1996, as the cameras rolled, San Francisco Mayor and former California State Assembly Speaker Willie L. Brown, Jr. took the stage in a drab auditorium on the campus of San Francisco State University. Joining him on stage, behind a mustard-colored dais, was California Assemblyman Bernie Richter. The men convened that evening to discuss Proposition 209. That ballot measure—also known as the California Civil Rights Initiative—would abolish racial preferences in California.2Prop. 209 would add the following language to the California Constitution: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Cal. Const., art. I, § 31(a).
Lanky and silver-haired, Richter had campaigned for years to amend California’s constitution to abolish racial discrimination and racial preferences in public employment, public education, and public contracting.3For one early effort, see ACA 47, 1993–94 Assemb., Reg. Sess. (Cal. 1994). Brown, standing six feet away on the cramped stage, had long campaigned to stop him. In a matter of days, Californians would tell the world where they stood, casting their ballots on Proposition 209, the culmination of Richter’s many years battling racial preferences and quotas.
The two men were a study in contrasts. Brown is Black; Richter was White. Brown, who served a record fourteen years as California Assembly Speaker, was a savvy politician and negotiator who always found himself at the head of a legislative majority. Richter, a Democrat-turned-Republican, was a fiercely independent and indefatigable civil-rights activist, a man who relished fighting alone for things that matter. But nowhere was the contrast between these men clearer than on the subject of affirmative action.
Brown described attacks on race-based affirmative action as “racist” attacks on remedies for past discrimination.4Ann Bancroft, Willie Brown Says No Compromise on Affirmative Action, Associated Press (Feb. 14, 1995). In Brown’s view, Whites had long benefited from racial discrimination and thus could not complain about a system that inverted those longstanding preferences to grant racial minorities fair representation in the workforce and in higher education institutions. Affirmative action, he argued, was necessary to counter decades of past discrimination and to effect racial equality. As such, Brown argued, support for Prop. 209 would not “be on the basis of anything except pure, unadulterated exploitation of racism.”5Jeff Jacoby, California’s colorblind proposition, Boston Globe (Aug. 27, 1996).
Richter assailed race-based affirmative action as “government-enforced racism,” no different than Whites’ invidious discrimination against Blacks during Jim Crow.6Michelle Locke, Affirmative Action Out at California Universities: Affirmative Action Ousted, Associated Press (Jul. 21, 1995). He frequently cited Justice John Harlan’s immortal dissent in Plessy v. Ferguson, in which case the Supreme Court upheld state laws requiring segregation against constitutional challenge. Alone in dissent, Justice Harlan insisted that the Constitution required equality under the law. “There is no caste here,” he wrote. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.” Affirmative-action advocates, according to Richter, repudiated this bedrock principle of equality in favor of a politics of “hate and racial division.”7Ann Bancroft, Jackson’s “Save the Dream” crusade heads for State Capitol, Associated Press (Oct. 27, 1997) (“Bernie Richter . . . , legislative author of Proposition 209, . . . accused [Jesse] Jackson of preaching ‘hate and racial division.’ ‘America does not need demagogues and professional racists to lead us into the next century,’ Richter said.”). After all, rather than remedying specific instances of past discrimination, affirmative action treats racial groups as monolithically deserving or undeserving of preferential treatment. And “making policy decisions based on a person’s ethnicity—on the way they were born—is wrong.”8Mike Comeaux, Initiative Revives Debate on Affirmative Action, L.A. Daily News (Jan. 30, 1995) (quoting Richter).
Then as now, affirmative action was a lightning rod. Emotions ran high. And, at times, the public debate turned ugly. A cartoonist for the Oakland Tribune depicted Ward Connerly, a Black businessman on the University of California’s Board of Regents who chaired the public campaign for Prop. 209, as the owner of a laundromat serving the Ku Klux Klan.9Ward Connerly, An Ugly Campaign to Preserve Quotas, Wall St. J. (Sept. 25, 1996). A political operative vowed to dig up dirt on the mild-mannered academics who drafted the initiative.10Jacoby, California’s colorblind proposition (cited in note 5). A Los Angeles city councilman described Prop. 209 as warmed-over Mein Kampf, a sentiment state legislators echoed.11Jacoby, California’s colorblind proposition (cited in note 5). A California assemblywoman described a legislative proposal by Richter to honor Justice Harlan’s dissent in Plessy v. Ferguson as a “horrible, fascist resolution.” Associated Press, Insults, Anger over Failed Resolution (May 23, 1996).
Yet the ugliness could not stop a full and frank debate. The American Enterprise Institute’s Dinesh D’Souza, a Prop. 209 backer, debated Jesse Jackson at Stanford’s Memorial Hall, then clashed with Erwin Chemerinsky at the University of Southern California.12Dinesh D’Souza, The battle over the CCRI, American Enterprise Institute (Jan. 1, 1997). Richter traveled up and down the state for debate partners.13See, e.g., Business Wire, Assembly author of anti-affirmative action legislation will debate his proposal at University (Apr. 6, 1995). So did Brown, who sparred with Richter many times.14See, e.g., NBC News, Interview: California Assemblymen Willie Brown and Bernie Richter discuss an amendment that would ban affirmative action programs (Mar. 12, 1995).
What separates now from then? At first glance, not much: Racial preferences in public education and employment still divide the American public.15Polling data suggests that the public supports “affirmative action” but recoils at express racial preferences in hiring and admissions. See Frank Newport, The Harvard Affirmative Action Case and Public Opinion, Gallup (Oct. 22, 2018) (showing that a majority of Americans support “affirmative action” but that nearly two-thirds oppose considering race or ethnicity in college admissions); Nikki Graf, Most Americans say colleges should not consider race or ethnicity in admissions, Pew Research Center (Feb. 25, 2019) (reporting that 73 percent of Americans “say colleges and universities should not consider race or ethnicity when making decisions about student admissions”). Even so, recent votes on racial preferences have been extremely close. In November 2019, voters in the State of Washington rejected Initiative 1000, which would have repealed the state’s affirmative-action ban, by a 1-percent margin. The debate over racial preferences remains consequential. Even the tone of the debate has not much changed: As in the mid-1990s, the issue of racial preferences is highly charged16Californians will consider Prop. 16, which would repeal Prop. 209, this November. In their ballot arguments, Prop. 16’s proponents contend that “voting YES on Prop. 16” is an “action to push back against racism and sexism and create a more just and fair state for all.” Opponents say repealing Prop. 209 will authorize “poisonous” racial discrimination and undermine fairness and justice for all. and, at times, vitriolic.17See Catalina Camia, Congressman stands by calling Clarence Thomas an ‘Uncle Tom’, USA Today (Apr. 30, 2014) (“A black congressman is sticking by his comment calling Supreme Court Justice Clarence Thomas an ‘Uncle Tom,’” citing “Thomas’ votes on Supreme Court cases dealing with voter identification laws and affirmative action.”). See also Ibram X. Kendi, There Is No Middle Ground on Reparations, The Atlantic (Jun. 19, 2019) (stating that anyone who does not support “reparations” like affirmative action is “racist” or standing on “racist ground”); Chauncey DeVega, Ibram X. Kendi on “How to Be An Antiracist”: Racism and capitalism “will ultimately die together”, Salon (Oct. 11, 2019) (predicting that an “antiracist” agenda, including affirmative action and other policies of racial preference, would “eliminate[ ] the likelihood that [White people] are going to consume racist ideas and then mass murder people”). But when debate happens, it is productive.18Consider, for example, this respectful dialogue on affirmative action between Adam Mortara, one of the attorneys supporting Asian-American applicants’ suit against Harvard University, and Neal Katyal, who once was Acting Solicitor General under President Barack Obama, at Dartmouth College’s Osher Lifelong Learning Institute in 2019.
What has changed is whether debate happens at all. A censorious minority in higher education, in the workplace, and in elite opinion-making institutions has raised the cost of debate and disagreement far beyond what our republic can bear.19See Conor Friedersdorf, Evidence That Conservative Students Really Do Self-Censor, The Atlantic (Feb. 16, 2020) (“While majorities favor more viewpoint diversity and free-speech norms, an intolerant faction of roughly a quarter of students believe it is okay to silence or suppress some widely held views that they deem wrong. . . . Students across political perspectives engage in classroom self-censorship.”).
At America’s higher education institutions, deplatformings and firings have silenced faculty, students, and invitees across the political spectrum.20See John McWhorter, Academics Are Really, Really Worried About Their Freedom, The Atlantic (Sep. 1, 2020) (observing that “more than half the respondents” of a Heterodox Academy survey “consider expressing views beyond a certain consensus in an academic setting quite dangerous to their career trajectory”); Katherine Mangan, More Than Half of College Students Self-Censor When Race and Other Tough Topics Come Up, Survey Finds, The Chronicle of Higher Ed. (Sep. 29, 2020) (“About 60 percent of students kept an opinion to themselves because they were afraid of how students, a professor, or an administrator would respond.”). See also Erwin Chemerinsky, Hate speech is protected free speech, even on college campuses, Vox (Dec. 26, 2017) (“[I]t’s also become clear to me that current college students are often ambivalent, or even hostile, to the idea of free speech on campus.”); Kenneth Lasson, The Decline of Free Speech on the Postmodern Campus, 37 Quinnipiac L. Rev. 1 (2018) (analyzing the rise of the “heckler’s veto” on campus and examining the implications for First Amendment rights). Examples of firings and deplatformings are numerous. See, e.g., Matthew Ludlam & Matthew Reade, Protesters Shut Down BLM Critic, Threaten Student Journalists, Claremont Independent (Apr. 6, 2017) (recounting a partially successful effort to prevent Heather Mac Donald from speaking at Claremont McKenna College); Editorial Board, College’s decision to disinvite Leonard Leo feeds intolerance of different ideas, Bangor Daily News (Jul. 27, 2020) (criticizing the College of the Atlantic’s decision to disinvite Leonard Leo, a prominent figure in the Federalist Society, from a July 29 virtual event). See also FIRE, Disinvitation Database (last visited Oct. 8, 2020) (for an extensive list of campus disinvitations, both successful and attempted). The range of acceptable opinion has narrowed to a sliver at renowned publications like The New York Times.21See also Letter from Bari Weiss, Opinion Columnist, N.Y. Times, to A.G. Sulzberger, Publisher, N.Y. Times (Jul. 14, 2020) (“[A] new consensus has emerged in the press, but perhaps especially at this paper: that truth isn’t a process of collective discovery, but an orthodoxy already known to an enlightened few whose job is to inform everyone else.”). Even workplaces are in tumult: Firings and resignations—all for expressing, at one time or another, something with which someone disagrees—are now commonplace.22For just a handful of recent examples, see Rishika Dugyala, NYT opinion editor resigns after outrage over Tom Cotton op-ed, Politico (Jun. 7, 2020); Meera Jagannathan, A Taco Bell employee says he was fired for supporting Black Lives Matter, MarketWatch (Jun. 21, 2020); Mark Fischer, NBA announcer Grant Napear fired over ‘All Lives Matter’ comment, N.Y. Post (Jun. 2, 2020). See also Alina Tugend, Speaking Freely About Politics Can Cost You Your Job, N.Y. Times (Feb. 20, 2015) (pointing out that employers typically “ha[ve] great latitude to control your political actions,” given that more than eight in ten workers do not enjoy First Amendment protection against termination for political speech). These incidents are now so frequent that they no longer surprise. They provoke as much interest today as rush-hour traffic.
Some argue that these incidents are not representative. They are. But whether they are is beside the point. A free society cannot survive if its members do not speak freely because they believe they cannot.23This basic insight motivates the Supreme Court’s scrutiny of “chilling effects” of government regulation of speech. See, e.g., Lamont v. Postmaster General, 381 U.S. 301 (1965) (finding unconstitutional a law requiring the Postmaster General to seize communist political propaganda, because that “requirement is almost certain to have a deterrent effect” on speech, producing “some inhibition” among those who wish to consume communist materials, and “is at war with the ‘uninhibited, robust, and wide-open’ debate and discussion that are contemplated by the First Amendment”). And what Americans believe is sobering: More than three in five self-censor. A third fear losing career opportunities or their jobs because of their political views. That fear transcends party affiliation, race, gender, income, and education level. And as fear has risen, so has intolerance. Half of “strong liberals” and more than a third of “strong conservatives” support firing an executive from her job for the sin of donating her own money to the presidential candidate they oppose.
Intolerance of dissent does not make for a healthy republic. A free nation cannot coexist with epistemic arrogance. As F.A. Hayek once observed, “[t]hose who plead for liberty differ from the rest in that they include among the ignorant themselves as well as the wisest.”24F.A. Hayek, The Constitution of Liberty 82 (Ronald Hamowy, ed., Routledge 2020) (1960). See also id. (tracing this observation to the “classical argument for tolerance formulated by John Milton and John Locke and restated by John Stuart Mill and Walter Bagehot”). Freedom of speech, like “all institutions of freedom,” is an “adaptation[ ] to this fundamental fact of ignorance.”25Hayek, The Constitution of Liberty 82. It answers the inescapable uncertainty of human affairs by placing faith not in the shallow certitudes of a chosen few but in the deep reservoir of knowledge, experience, and creativity of society at large. Unfettered debate, in other words, protects social progress by denying anyone the power to inhibit the search for truth. It promotes a market, rather than a monopoly, of ideas.
Open, honest, and vigorous debate is especially important for a topic like this one. Racial preferences are sharply contested and provoke strong reactions on all sides. At the debate’s center are conflicting conceptions of equality, each of which is compelling and contestable in its own way.26See Coleman Hughes, Affirmative Action: Towards a Coherent Debate, U. Chi. L. Rev. Online (Oct. 30, 2020). And this debate will not vanish any time soon: On November 3, Californians will vote on whether to repeal the ban on racial preferences Richter advocated. In October, the U.S. Department of Justice sued Yale University for discriminating based on race and national origin in undergraduate admissions. A private suit against Harvard University by a coalition of Asian-American students appears bound for the Supreme Court. And a national conversation about racial justice has forced these and other difficult questions to the fore.
To confront those questions, we have assembled a panel that aims to fully and fairly represent the affirmative-action debate. Some of our panelists are strong advocates of affirmative action; others decry racial preferences. Our panel features not only lawyers and legal scholars but also empirical experts and cultural critics. And our participants hail from many different backgrounds, institutions, and intellectual traditions. This series embodies the University of Chicago’s “commitment to a completely free and open discussion of ideas.”
Opening the series, Coleman Hughes frames the affirmative-action debate as a contest between three positions. The “pro-equality” position opposes affirmative action because it discriminates against individuals on the basis of their race. The “pro-equity” position accepts discrimination against individuals to correct racially unequal results at the group level. The “middle-ground” position attempts to split the difference between equality and equity. Each view has its own problems and attractions. The pro-equality view “gels effortlessly” with the colorblind principle of the civil-rights movement but “must accept any level of group-level disparity, no matter how starkly unequal.” In contrast, the pro-equity view can offer an immediate solution to group-level disparities. But it is applied selectively and must embrace the view that racial discrimination against individuals is merely “contingently evil—contingent, that is, on whether such discrimination is increasing equity or reducing it.” The middle position offers something for both sides. Yet it “dodges the most important question: What is ‘racism’?”
Next, Professor Richard H. Sander asks and answers Fifteen Questions about Prop. 16 and Prop. 209. Sander explains California’s antidiscrimination provisions and discusses their effects on the enrollment, graduation rates, and applications of minority students in the University of California system. From the data, Sander concludes that “legalizing discrimination to create racially proportional university admissions . . . papers over the real problems” causing racial inequality and, in fact, “hurts the people it is intended to help.” While agreeing with Hughes that the distinction between the pro-equity and pro-equality positions “is often lost . . . in affirmative-action debates,” Sander thinks that the trade-off is less stark than Hughes suggests. California’s experience with Prop. 209, Sander writes, “leave[s] no doubt that race-neutral admissions were a win-win for both equality and equity.”
In Good Trouble, Professor Girardeau A. Spann hopes that ongoing “protests against racial injustice” across the United States reflect an emerging social consensus around the “pro-equity” conception of affirmative action. That consensus, Spann contends, may prompt the Supreme Court, a body “ultimately dependent on popular support,” to embrace the view that the Constitution requires affirmative action and other efforts to “eradicat[e] racially disparate impact.” Throughout Good Trouble, Spann powerfully argues for the pro-equity conception of affirmative action. Opposition to affirmative action, he writes, “smothers racial equality beneath a tacit baseline assumption that the current allocation of resources is itself fair and equitable—despite the long history of overt, implicit, and structural racism on which it rests.” Battling that “ongoing discrimination” is what affirmative action does.
Of course, hardship and discrimination can arise from characteristics beyond race, too. Brown and Richter, for example, often clashed over whether affirmative action should proceed along racial or socioeconomic lines. But why not both? That is Professor Jonathan Feingold’s view. Feingold criticizes the Supreme Court’s “preference” for “class-not-race” affirmative action as “intersectional blindness”—a failure, in other words, to recognize that hardship may attach simultaneously to many different facets of a person’s identity. Intersectional blindness, Feingold argues, has allowed powerful institutions—in particular, elite universities—to claim the mantle of “racial equality” even as they implement admissions policies that in fact “reproduce race and class privilege” and stall progress toward class-and-race equity.
While Professor Spann hopes for change from a Court galvanized by popular groundswell, Professor Susan P. Sturm is less optimistic. Defending affirmative action “continues to be important and necessary.” But affirmative action is contested and incremental, “compensat[ing] for,” but not eliminating, the “limitations and structural biases built into” the education system. To address those stubborn problems, Sturm argues, higher education institutions must think beyond the admissions process, and invest in transforming institutions and “cultivating potential and mobility” long before underprivileged students ever apply to college. Institutional transformation along these lines has yielded astounding gains where it has been tried. Broadening those efforts would bring those benefits to underrepresented minorities and low-income students everywhere and refocus higher education institutions on serving everyone in their communities, rather than just a privileged few.
Sturm also notes that the Supreme Court, beginning in the 1970s, has repeatedly cited diversity as a compelling rationale for race-based affirmative action. Traditionally, scholars have traced the diversity rationale to university elites, to the rise of identity liberalism (as distinct from the colorblind principle of the early civil-rights era), or to the Court itself. Professors Anthony S. Chen and Lisa M. Stulberg question that scholarly consensus. They argue that the diversity rationale originated not in the late 1960s or 1970s, but in the early 1960s with the civil-rights movement and Americans’ increasing openness to “religious, ethnic, and racial difference.” That reading of the historical record reveals that the diversity justification for affirmative action in higher education is better understood as an expression, not a repudiation, of classical liberalism. Indeed, the diversity rationale had taken root at selective universities long before it received the Court’s endorsement in Regents of the University of California v. Bakke and even before Congress enacted the Civil Rights Act of 1964. According to Chen and Stulberg, this record suggests that universities genuinely “embraced the educational value of diversity,” rather than simply repurposing diversity rhetoric to effect “a legally and constitutionally dubious program of ‘racial preferences’” they had long desired.
Professor Amy L. Wax argues that the diversity rationale for race-based affirmative action drastically departs from its traditional justification as a remedy for past discrimination. “A core ideal of Anglo-American law,” she writes, “is that legal wrongs should be remedied by restoring the injured victim to . . . the position . . . the victim would have occupied had the legal injury never been inflicted.” And by citing diversity to justify racial preferences, the Supreme Court has strayed far from that core principle of remediation and, in so doing, has laid the foundation for “affirmative action forever.” Wax thinks that is a mistake. If diversity remains the rationale, the Court should at least demand specific evidence that “a more varied demographic profile advances pedagogical effectiveness” before a university may deploy racial preferences. After all, Wax writes, preferences for one racial group necessarily entail penalties for others. But whatever the merits of granting universities “blanket permission to advance diversity,” Wax argues that the Court has not and should not extend that permission to the workplace. The workplace “is fundamentally different from education”; it aims at profit, not pedagogy. And in the employment sphere, Wax states, the costs of racial preferences are clearer, while their benefits are “speculative and unproven.” Thus, Wax contends, courts should burden firms “that adopt race-conscious methods to show that their hiring practices actually advance their core mission and legitimate business purposes. Other rationales should not suffice.”
Professor Richard Thompson Ford criticizes the diversity rationale from a different direction. The “[e]mbrace of ‘diversity’ has kept affirmative action alive,” he concedes, but at the cost of “turning issues of justice into questions of technocratic personnel management.” Unlike Professor Wax, Professor Ford rejects the notion that affirmative action generates material social or individual harms. For starters, any “individual injury” that affirmative action might inflict “is offset by the social benefit of correcting for and reversing generations of racial injustice.” Plus, grades and standardized test scores, though “useful as a means of making broad distinctions between applicants,” are imperfect measures of merit and lack predictive value when performance gaps are small, as they are at most elite institutions. For these reasons, among others, Professor Ford doubts that renewed efforts to eliminate affirmative action will succeed, even if they win Pyrrhic victories in court. Without affirmative action, universities “will reduce their reliance on scalable indicia of merit generally,” accelerating the remediation of the racially disparate impacts those indicia produce.
In Affirmative Action, Transparency, and the SFFA v. Harvard Case, Professors Peter S. Arcidiacono, Josh Kinsler, and Tyler Ransom analyze a rich trove of admissions data revealed at trial in an ongoing suit against Harvard University. There, the plaintiffs have alleged that Harvard discriminates against Asian-American applicants on the basis of their race. The data shows strong preferences for underrepresented minorities, particularly Black and Hispanic applicants. But it also reveals a playing field tilted sharply in favor of Whites, athletes, and legacy applicants, at the expense of “significantly stronger” Asian-American applicants. Pointing out that data is crucial to drawing informed conclusions about affirmative action’s effects, the authors admonish universities to level with students about how racial preferences affect them—both at the admissions stage and beyond.
Concluding the series, Professor Daniel E. Ho and Ms. Alice Xiang of the Partnership on AI examine whether and how universities might harness machine learning to effect affirmative action. A key pitfall of “algorithmic affirmative action” is that algorithms necessarily quantify race, which violates the Supreme Court’s clear bar on quantified or points-based racial preferences. But that barrier, the authors explain, is not insurmountable: The Supreme Court has affirmed race-based set-asides in the public-contracting context, when they are justified as remedies for past discrimination. The contractor cases indicate that affirmative-action algorithms could quantify race so long as they do so to remedy their user’s past discrimination against the groups the algorithms prefer.
After an hour and twenty minutes, Mayor Willie Brown and Assemblyman Bernie Richter finished their debate. The men shook hands and smiled. Richter clapped Brown’s shoulder. The men stepped off the stage and, after chatting for a moment more, went their separate ways. A week later, on November 5, 1996, California voters sided with Assemblyman Richter and enacted Prop. 209, adding to the state constitution the following antidiscrimination provision: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
Brown and Richter disagreed strenuously. Each regarded the other’s position as incompatible with our nation’s core ideals. “How do you square [racial preferences] with all that we are and all that we hope to be?” Richter asked rhetorically during the October 27 debate. “Those of us who advance Prop. 209, we stand in the shoes of Jefferson, and Lincoln, and King.” Against this, Brown argued that Prop. 209, by preserving race-based entitlements for Whites, would return the United States to the “system as we knew it before Brown v. Board of Education.” Racial preferences for underrepresented minorities, Brown said, would protect people like his son from the effects of past discrimination. Again invoking first principles, Richter responded memorably: “Mr. Brown’s son needs a racial preference like we all need a hole in the head,” he thundered, pointing out that Brown’s son came from an “affluent” and “educated” family. “To give [Mayor Brown’s son] a preference at the expense of some poor Asian or some poor White,” Richter continued, “is an outrage. It is an attack on everything we believe in. It’s going against all that this country stands for.”
Yet despite their differences, Richter and Brown always were cordial colleagues and friends. Brown even backed Richter as his successor to the speakership of an evenly divided Assembly, whipping votes for him in the Democratic caucus in early 1995.27See James Richardson, Willie Brown: A Biography 379 (1996) (link). After Richter’s bid for the speakership failed, Brown, showing characteristic political finesse, managed to buy himself another five months as Assembly Speaker. For the full account of these events, see id. at 379–81. Though that bid failed, it reflects the abiding respect the men had for one another—a respect their colleagues shared. After Richter died suddenly of a heart attack in October 1999, the Assembly, though by then dominated by Richter’s political opponents, honored Richter with a legislative proclamation recognizing his “commitment to his values, his state, and his country.” Richter, the proclamation read, “was a maverick and independent thinker” who “fought tirelessly for what he believed, regardless of any criticism he might engender along the way.”283 Office of the Chief Clerk, Journal of the Assembly: Legislature of the State of California 1999–2000 Regular Session 4623 (link). Mayor Brown, of course, had offered his condolences long before. After Richter died, he was one of the first to call.
Richter and Brown are proof that kindness and collegiality can coexist with the strongest conviction. This series shows that is still true today. Though we may divide on the issues, we remain committed to the pluralism and respectful dialogue that makes freedom possible. Of our panelists’ courage and grace, I’m sure my grandfather, Bernie Richter, would be proud.
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Matthew D. Reade is the Executive Online Editor of The University of Chicago Law Review and a J.D. Candidate in the University of Chicago Law School Class of 2021. He received his B.A. from Pomona College in 2018. Taiyee Chien deserves special thanks for his steadfastness, equanimity, and clarity of purpose as they assembled, advocated, and edited this series.
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Featured photo: The Van Wickle Gates on the campus of Brown University. Credit to Farragutful (Wikimedia Commons).