Still Separate, Still Unequal

The Harvard Journal of Racial and Ethnic Justice (JREJ) recently published its first online volume. It consists of material first presented at JREJ’s Spring 2014 Symposium: “40 Years After Milliken: Remedying Racial Disparities in a ‘Post-Racial Society.’”  The 1974 Supreme Court case Milliken v. Bradley held that courts were not permitted to address public school segregation by incorporating into integration plans school districts that were not found to have engaged in “de jure” discrimination—even if such an inter-district remedy was the only way reverse the harm.  During the Milliken Symposium—and in longer pieces published in the online volume—scholars explored Milliken’s present-day relevance and discussed the difficulties of receiving redress for racial inequality in an era where discriminatory intent is nearly impossible to prove.

Associate Professor at Georgia State University College of Law Tanya Washington tracks the origins of the Supreme Court’s affirmative action jurisprudence in “Jurisprudential Ties that Blind: the Means to End Affirmative Action.” Washington interrogates the Court’s limited conception of racial discrimination—particularly its de jure-de facto distinction—and how this approach has sowed the seeds for our current moment, and a future in which all race-conscious affirmative action programs could be found constitutionally impermissible. Given this, she questions the capacity of color-blind affirmative action to ensure educational equity and racial diversity.

Professor at the University of Louisville Brandeis School of Law Cedric Merlin Powell lays out a wide-ranging critique of Milliken in his article, Milliken, ‘Neutral Principles,’ and Post-Racial Determinism.” Powell explains how the Supreme Court’s reinterpretation of Brown’s mandate and its adherence to a false neutrality in Milliken not only preserved status quo segregation, but ensured that courts would remain powerless in addressing it. The author also uses Justice Thurgood Marshall’s dissent in that case as providing the proper framework for deciding school desegregation cases.

Dr. Laura McNeal, Associate Professor of Law at the University of Louisville Brandeis School of Law, argues in “The Milliken Effect: Moral Exclusion Under the Guise of Equity,” that Milliken ushered in the demise of desegregation by engaging in “moral exclusion,” a “psychosocial orientation toward certain individuals or groups for whom justice principles or considerations of fairness and allocation of resources are not applicable.” Dr. McNeal posits that post-Milliken era cases have perpetuated educational inequality by upholding structural barriers to educational equity and deliberately ignoring contextual realities of race and poverty.  The author argues that ultimately, we must acknowledge the significance of race in education in order to counteract moral exclusion.

In “Implicit Injustice: Using Social Science to Combat Racism in the United States,” Equal Justice Society Co-Founder and President Eva Paterson and Berkeley Law Student Luke Edwards detail blacks’ historical and present-day battles for equality, within and outside of the law.  They explore unconscious bias in a host of contexts—most notably the criminal justice system—and how the use of social and mind sciences can help to counteract these problems to achieve equality in a “post-racial” America.

Addressing Implicit Bias Employment Discrimination: Is Litigation Enough?” focuses on the impact implicit bias has on racial discrimination, particularly in the context of employment. Labor and Employment Attorney Sabreena El-Amin tracks the history of employment discrimination in the United States and explores the costs and benefits of using litigation as a means for addressing the issue. The author argues that litigation should not be relied upon as the exclusive means for grappling with implicit bias in employment, offering instead a model that envisions non-profit organizations working together with private businesses seeking diverse talent.

Check back with the Harvard Journal on Racial and Ethnic Justice at hjrej.org for more information on how to order an electronic or print issue of our online volume.