Racial Exhaustion in the New York Times

Ross Douthat's op-ed on race, published in the New York Times, reads like a piece of science fiction. Although Douthat makes well worn arguments about the perils of affirmative action, his ultimate conclusion that class-based measures should replace race in social policy rests on a description of America's near future that is utter fantasy.

Racial Exhaustion
Douthat frames his essay around Justice O'Connor's opinion for the Court in a 2006 case that upheld the use of race-based affirmative action in higher education. Near the end of the opinion, O'Connor expresses a hope that in 25 years, affirmative action would be unnecessary. Douthat agrees with O'Connor's sentiment.

But that decision was not the first time the Supreme Court fantasized about the diminishing need for race-based public policy. The first judicial expression of this mistaken view occurred in an 1883 opinion that invalidated the first federal statute banning racial discrimination in places of public accommodation. In the face of dramatic racial inequality, the Court opined that ongoing measures to address racial inequality were no longer necessary and that these provisions were simply handouts that made blacks the "special favorites of the law."

Similarly, immediately after the Civil War, conservative members of Congress contested policies designed to provide food, shelter, and protection to the former slaves on the grounds that the war and the abolition of slavery had ended the nation's racial issues and that these policies harmed whites and made blacks lazy. Racial exhaustion rhetoric (see my recent law review article on the subject) has existed throughout the history of the United States. It is unclear why Douthat believes his plea for the end of race-based measures sits outside of this long history of racial denial.

Obama's and Sotomayor's America
Douthat notes that some critics have argued that Sonia Sotomayor's treatment by conservatives proves the salience of race in the United States. In response, Douthat asserts that:

[T]he [Republican] senators are yesterday’s men. The America of Jefferson Beauregard Sessions III is swiftly giving way to the America of Sonia Maria Sotomayor and Barack Hussein Obama.

And just where are all of these budding black presidents and wise Latina Supreme Court justices? According to Douthat, they are the inevitable consequence of population increases among persons of color and the likely nonwhite "national majority" by 2042. Numbers alone, however, do not translate into material well being or even political power (just ask South Africans -- or poor Latinos in Texas). And having a black President and a Latina on the Supreme Court does not mean that race has become socially irrelevant. Oprah Winfrey, a black woman, is one of the richest persons in the world. Under Douthat's individualized approach to the question of inequality, women of color should have indisputable economic power. Instead, they are the poorest segment of the United States population.

Furthermore, Sotomayor and Obama both benefited from affirmative action. According to Douthat, however, their great success disproves, rather than proves, the necessity of race-based affirmative action.

Race "or" Class
Douthat makes a valid point regarding the importance of class-based remedies. But the class proponents (Douthat is not the first) never justify their "either/or" formulation. Most sociological data on the subject, however, indicate that race and class both shape the experiences of the nation's poor persons of color. And while they would certainly benefit from economic policies (see William Julius Wilson's "When Work Disappears") the persistence of poverty among persons of color results from more than race or class alone.

The proponents of the class approach also ignore the significant public hostility to anti-poverty policies and the fact that "programs for the poor" often morph into "programs for lazy and undeserving blacks and Latinos" in public discourse. According to very popular political rhetoric, undeserving black and Latino "subprime" mortgage-holders singlehandedly caused the global economic and financial crisis. Also, "welfare" supposedly ruins the economy because it leads black women to have more children than they can afford, mistakenly believing that an extra 100 bucks a month is worth the hassle. Although most women who receive welfare are white, they are largely invisible in conservative discourse.

Even in the area of public education, where class-based policies could have a tremendous impact, the political will for egalitarian measures is not strong enough. For example, despite the inequities that result from using property taxes to fund public schools, most states continue to utilize this approach, which the Supreme Court validated in 1973.

The conditions in public schools also counsel against an approach that attempts to separate race from class. Public schools have become highly "resegregated" in the last decade. Schools that have largely black and Latino student populations are also "poverty schools," while schools with predominately white student populations are likely middle-class and higher-income schools. The race-poverty schools are grossly underfunded, are revolving doors for teachers, and they rank at the bottom in most measures of pupil success (This has nothing to do with the availability of affirmative action -- as conservatives falsely argue). Due to racial residential segregation, poor students of color are more likely than poor whites to attend poverty schools.

Nevertheless, in 2007, the Court invalidated policies in two school districts, which sought to remedy the harmful effects of resegregation. The majority held that the school assignment policies, which included an innocuous racial "tie-breaker" -- if a long list of other measures failed -- were too broad. The four most conservative justices argued that states did not even have a "compelling interest" in remedying racial isolation in public schools (despite all of the problems that correlate with it). The problem of racially isolated poverty schools is much more severe in "liberal" states in the Northeast, Midwest and West Coast -- despite those states having large populations of persons of color.

Conclusion
Although Douthat probably formed his views on the subject of race before Obama's election, he seems to read too much into the historical fact of the nation's first black president. He also fails to consider the substantive and political limits of a class-based approach to equality. Douthat also exaggerates the relevance of increasing numbers of persons of color to their overall well being. Accordingly, Douthat's vision of America's near future remains simply that: a vision.

Joe the Firefighter to Testify at Today's Sotomayor Hearings

Senate Republicans have rebuked "empathy" among judges as if they were Southern ministers commanding Satan to flee. Today, however, they will contradict their anti-empathy stance by bringing Frank Ricci to testify against Supreme Court nominee Judge Sonia Sotomayor.

Ricci Litigation
Ricci filed a lawsuit challenging a 2004 decision by the City of New Haven to scrap the results of a test it used to allocate promotions in the fire department. If the city had certified the test results, virtually all of the promotions would have gone to whites. The city decided to discard the test and to develop other promotions criteria. Expert witnesses testified that other methods exist that could identify employees worthy of promotions in a less discriminatory fashion. The city said that it feared litigation under federal law that considers disparate effects relevant to an antidiscrimination claim and that it wanted to diversify the pool of employees receiving promotions.

The District Court ruled against Ricci in 2006, and a 3-judge panel of the Second Circuit Court of Appeals ruled against him in 2008. Sotomayor was a judge on the panel. The full Second Circuit subsequently voted to deny reargument in the case. The Supreme Court recently reversed the lower court rulings.

Although the issues in this case are important, the opinions do not dramatically alter the legal terrain. Nevertheless, the case and its lead plaintiff -- Ricci -- gained notoriety after President Obama nominated Sotomayor to replace the retiring Justice David Souter. Despite the fact that many judges -- including four justices on the Supreme Court -- have disagreed with Ricci, conservatives who oppose Sotomayor have used this case in an effort to define her as a racial extremist. Today, they will continue advancing this inaccurate script by bringing Ricci to testify.

Ricci's Testimony Is a Colossal Waste of Time
Ricci's testimony will not add anything to the public's knowledge of Sotomayor's qualifications as a judge. Sotomayor has served as a judge for nearly 20 years, and she has decided numerous cases. Only an examination of her complete record as a judge -- rather than one case scrutinized in isolation -- can allow for a balanced and honest assessment of her qualifications.

Although conservatives are attempting to use Ricci (the case and the man) in order to portray Sotomayor as a white-hating race radical, the SCOTUS blog's review of all of the race cases she has decided shows that this label is absolutely false. Sotomayor has rarely dissented in race discrimination cases, and in the bulk of those cases, she has voted against the plaintiffs (constrained, no doubt, by "bad" cases and conservative precedent). In one of her few dissents, however, she actually voted for a white racist employee who was fired from the New York Police Department after he distributed racist literature. Sotomayor, disagreeing with the other two judges, argued that the dismissal violated the employee's First Amendment rights. For obvious reasons, conservatives have treated this case as if it did not exist.

Ricci's testimony will not provide any useful information for many other reasons. First, as a non-lawyer, his competence to evaluate Sotomayor as a jurist is dubious. Second, because Ricci is a disgruntled litigant, many reasonable people will dismiss his analysis as biased. Finally, Ricci only represents one piece of the puzzle. The City of New Haven, the fire department, the workers of color, and potentially the other judges involved in these decisions could all help shape public perception of the case. But (thankfully) these individuals are not testifying. One side of a story is not the story.

Ricci and Empathy
Because Ricci's testimony will not contribute to the public's understanding of Sotomayor's fitness to serve on the Supreme Court, Republicans are undoubtedly using him for political purposes. Republicans are exploiting Ricci to turn Sotomayor's hearings into a mini-referendum on affirmative action and race. Ricci, like Joe the Plumber, represents the "beleaguered white male," held down by evil liberal policies. Republicans hope that Ricci will create "empathy" for conservative opposition to affirmative action and embolden its political base (which increasingly consists only of Frank Riccis). Apparently, Ricci, like Joe the Plumber, savors 5-minutes of political fame. Where exactly is that plumber dude today?

PS: Democrats are trotting out a lawyer who litigated a case before Sotomayor. The lawyer represented the prevailing party. Although a lawyer could potentially bring more to the confirmation hearings than a firefighter, this testimony will probably add very little if anything to the discussion of Sotomayor's record.

For links to all of the Sotomayor articles on Dissenting Justice, see: Sonia Sotomayor on Dissenting Justice

Media Matters: NYT, Fox and MSNBC Delete Sotomayor Comment Regarding Her "Socio-Economically Poor Background"

Recently, the New York Times produced video footage of a panel discussion during which Supreme Court nominee Sonia Sotomayor stated that her standardized test scores (not grades) were below the average of persons at Princeton and Yale Law School. Although she ultimately graduated from the top of her class at Princeton and performed excellently at Yale Law School (which does not "rank" students), conservatives who oppose affirmative action have used these comments in order to depict Sotomayor as an undeserving beneficiary of race-based admissions policies.

There is one glaring problem with their analysis, however: The edited video footage deletes Sotomayor's statement that she "is from what is traditionally described as a socio-economically poor background," which leaves the impression that Princeton and Yale only considered "race" as an affirmative action category. Media Matters uncovered the misleading reports (on Fox, MSNBC and in the NYT).

Many studies show that academic performance in college and graduate or professional school correlates more strongly with prior GPA than with standardized tests. Furthermore, it is well known that expensive test preparation courses, which benefit the wealthy, can add significantly to a test-taker's performance. It is unclear whether Sotomayor enrolled in professional test preparation courses, but it is unlikely that she did.

Also, Sotomayor's gender probably played a tremendous factor in her admission to college and law school, but most conservatives have reserved their anger for race-based affirmative action. Undoubtedly, graduating summa cum laude from Princeton, one of the highest ranked universities in the world, strongly influenced the Yale Law School admissions committee (as it should have). This remarkable achievement, however, receives little attention from individuals who seek to blame affirmative action for their own irrational refusal to appreciate her intellectual power (and the achievements of other persons of color).

Although conservatives argue that affirmative action "stigmatizes" persons of color as inferior, this racial stereotype predated affirmative action by centuries, and it clearly remains a part of American culture. This stereotype operates so powerfully among those who accept it, that even the top graduate from one of the world's top colleges and law schools cannot escape it. Blaming affirmative action for this patent bigotry is an act of cowardice.

Ironically, conservatives have chosen to deemphasize Sotomayor's poverty even though they often advocate affirmative action on the basis of "class," rather than race. I have always doubted the sincerity of the class-based "alternative" (often, affirmative action is based on race and class), given conservative opposition to antipoverty programs -- which often portrays beneficiaries as lazy persons of color. Nevertheless, if the class argument comes from an honest place, then conservatives should point to Sotomayor's academic and professional success as vindicating -- rather than delegitimizing -- societal efforts to extend opportunities to poor and disadvantaged individuals. Instead, they have chosen to downplay or question her obvious success and to vilify an individual who succeeded despite her severe disadvantages. This approach is politically suicidal -- not to mention deceitful and hypocritical.

WWKD: Ricci v. DeStefano Will Likely Turn on Justice Kennedy

Although the term "judicial moderate" suggests a judge who lacks a political agenda, moderates possess a tremendous amount of power when the Supreme Court contains equal numbers of liberals and conservatives. After the departure of Justice O'Connor, Kennedy now wields power as the Court's moderate. Kennedy's vote in Ricci v. DeStefano will probably dictate the outcome of that case.

In Ricci, a group of white firefighters challenged a decision by New Haven, Connecticut, to scrap a departmental test used to allocate promotions. If the city had maintained the test, only one nonwhite individual would have qualified for a promotion. The disparity was smaller in prior years. A 3-judge panel of the Second Circuit Court of Appeals sided with New Haven. The full Second Circuit voted 7-6 to deny a rehearing in the case. The Ricci decision has generated more than the usual controversy that accompanies race cases because Supreme Court nominee Sonia Sotomayor sat on the 3-judge panel that approved the city's decision to discard the test.

Ricci, however, is far more complicated than its critics acknowledge. And while Justice Kennedy's vote will likely determine the ultimate outcome of the case, Kennedy's prior stances in race cases could lead him to vote for or against the City of New Haven. Contrary to the politicized discourse surrounding Ricci, the law in this area (and many others) is broad enough to support more than one "correct" conclusion.

Title VII and Disparate Impact

The plaintiffs contend that New Haven violated Title VII (a federal employment discrimination statute) when it scrapped the test results. Title VII bans discrimination by certain employers (including states and municipalities) on the basis of race, sex, religion, and national origin. Congress passed the statute as part of the Civil Rights Act of 1964. Title VII prohibits employment practices that discriminate by purpose or effect.

If the employer uses explicit race-based policies, the case is easy. The more contested area of law, however, involves "neutral" policies that disparately affect members of a particular group. These neutral policies could include aptitude tests or physical endurance requirements for certain jobs. Title VII provides that if a plaintiff can prove that a neutral policy discriminates against a particular class, then the defendant must show that the job requirement serves a "valid" employment goal. Even if the job requirement serves a valid employment goal, the plaintiff can still argue that this goal is attainable with less discriminatory measures or that the employment goal is pretext for discrimination.

Disparate Impact and Ricci
The City of New Haven does not deny that its decision to discard the test was a "race conscious" measure. The city, however, argues that it invalidated the test in order to avoid liability under the impact standard utilized in Title VII cases. An expert witness testified that other tests could have identified qualified individuals with less discriminatory results. The trial judge credited this testimony.

Second Circuit precedent supports the rejection of the plaintiffs' claim. Specifically, in Hayden v. County of Nassau, the Second Circuit held that the defendant's decision to pick from among 25 different tests the test that had the smallest disparate impact on black workers did not violate the statutory or constitutional rights of white and Latino plaintiffs. As the court explained, employers do not violate Title VII when they use policies that seek to avoid the very patterns that courts have deemed illegal under the statute.

Beginning in the 1960s, opponents of Title VII argued that it would cause employers to use quotas. When Congress amended the law in the 1990s to reinstate the impact test (which the Supreme Court had eviscerated) critics described the proposed law as a "quota bill," and President Bush vetoed an initial version of the law (which looks remarkably similar to the enacted version). Now, however, some conservatives have argued that the City of New Haven had no legitimate interest in avoiding liability under Title VII. If the law is indeed a quota statute, then the city presumably has a good argument on the liability issue.

Kennedy, Race and Affirmative Action
The plaintiffs also argue that the City of New Haven violated the Equal Protection Clause of the Fourteenth Amendment. Hayden rejected an Equal Protection claim; accordingly, the Second Circuit ruling seems sound as compared to law within the circuit.

Justice Kennedy has largely opposed the use of race for social policy. Nevertheless, Kennedy has argued that defendants do not violate the constitution by embracing "neutral" policies even if they are "conscious" of race when they do so. In other words, if a governmental defendant wants to minimize the anticipated racial impact of a particular policy, it could, cognizant of this goal, design new policies that seek to lessen the racial effects of its neutral policies. The fact that the defendant considered race, however, would not render the policy decision unconstitutional. This logic separated Kennedy from the conservatives in Parents Involved v. Seattle School District No. 1.

In Parents Involved, a closely divided (5-4) Court invalidated policies used by Seattle, Washington and Jefferson County, Kentucky designed to preserve racial balance in public schools. The 4 conservatives argued that maintaining racial balance was not a "compelling" interest. Kennedy strongly disagreed and wrote a separate opinion to state his objection. Kennedy, however, agreed with the conservatives and argued that the schools' policies where not "narrowly tailored" because race was an explicit part of the diversity plans. Kennedy preferred a "race conscious," but "race neutral" approach. He argued that the school districts could redesign zones and build new schools with racial diversity in mind:

These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. . . .Executive and legislative branches . . . should be permitted to employ them with candor and with confidence that a constitutional violation does not occur whenever a decision maker considers the impact a given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly.

The analysis for Kennedy will center on whether the decision to discard the test after the results were publicized amounts to "a crude system of individual racial classifications" or whether it simply represents a race conscious but permissible effort to minimize the impact of laws on particular racial groups. Although it is hard to predict how Kennedy will vote, I believe that he will vote to reverse the ruling. Whenever race looks overt, rather than covert, Kennedy gets queasy - even if the two types of racial decision making are not materially distinct.

Conservative Judicial Empathy? You Betcha!

Obama's statement that he would like a Supreme Court justice who is both intelligent and who shows "empathy" has created quite a swirl of activity. If I were president, I am fairly certain I would not have used the word "empathy" to describe a trait of potential nominees because it is both amorphous and subject to great political distortion and abuse. Nevertheless, for reasons that will soon become apparent, much of the conservative melodrama over the term demonstrates a tremendous measure of ignorance regarding the details of Supreme Court rulings or simple hypocrisy.

Conservative Judicial Empathy
Obama has elaborated the idea of empathy, stating that he believes a Supreme Court justice should understand "how our laws affect the daily realities of people's lives" and should identify "with people's hopes and struggles."

Using Obama's own words, I have compiled a listing of examples where Justices Scalia and Kennedy have expressed empathy in their judicial opinions. If conservatives believe that empathy is a bankrupt concept, then they should reject its use by rightwing and right-leaning justices.

Justice Scalia
In Johnson v. Transportation Agency of Santa Clara County, the Supreme Court rejected the claim of Paul Johnson, a white male employee who alleged that his employer unlawfully promoted a woman over him by taking sex into account pursuant to an affirmative action plan. Scalia's vigorous dissent argues that advocates of race and gender equality are politically powerful and that the Court's ruling would encourage employers to hire "unqualified" women and persons of color in order to avoid costly litigation.

Exhibiting a great deal of empathy, Scalia concludes that poor white males are the true victims of discrimination and in need of judicial protection:

[T]he only losers in the process are the Johnsons of the country, for whom [the antidiscrimination statute] has been not merely repealed but actually inverted. The irony is that these individuals -- predominantly unknown, unaffluent, unorganized -- suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.

Scalia satisfies Obama's empathy standard because he uses Johnson's experience to discuss "how our laws affect the daily realities of people's lives" and to "identify with people's hopes and struggles."

In United States v. Virginia, the Supreme Court invalidated the Virginia Military Institute's policy of excluding women. Scalia's lone dissent expresses empathy with citizens of the state and with male students:

Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half.

Scalia portrays VMI as the victim of modern social movements that seek to dismantle traditional notions of gender. For example, he quotes at length from a book entitled "The Code of a Gentleman" that VMI required all first-year cadets to possess. The book lists traditional concepts of manhood, which Scalia believes, regrettably, that the Court's ruling will destroy:

A gentleman . . . [d]oes not speak more than casually about his girl friend. Does not go to a lady's house if he is affected by alcohol. . . Does not hail a lady from a club window. . . [N]ever discusses the merits or demerits of a lady. . . Does not slap strangers on the back nor so much as lay a finger on a lady. . . .

I do not know whether the men of VMI lived by this code . . . But it is powerfully impressive that a public institution of higher education still in existence sought to have them do so. I do not think any of us, women included, will be better off for its destruction.

If Obama's search for empathetic justices appalls conservatives, then Scalia's emotional discussion of male valor should anger them as well.

Justice Kennedy
Justice Kennedy is a right-leaning moderate. In 2007 he authored the Court's ruling in Gonzales v. Carhart which upheld the federal prohibition of "partial-birth abortion." A particular passage of Kennedy's ruling empathizes with women whom Kennedy believes would later regret having the procedure:

Respect for human life finds an ultimate expression in the bond of love the mother has for her child. . . .Whether to have an abortion requires a difficult and painful moral decision. . . .While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . .Severe depression and loss of esteem can follow. . . .

It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know: that she allowed a doctor to pierce the skull and vacuum the fast-developing brain of her unborn child, a child assuming the human form.

As a male, Kennedy cannot draw upon any personal experience as a person who has terminated a pregnancy. Accordingly, he can only empathize with women's feelings as stated in Court submissions, although he concedes the absence of "reliable data" on this issue. Based on his empathy and concern for this particular class of women, notwithstanding the lack of clear evidence, Kennedy argues that Congress can ban the procedure for all women -- even though the Court had invalidated a similar state law in 2000.

Finally, in Parents Involved in Community Schools v. Seattle School District No. 1, the Court invalidated policies designed to maintain racial integration public schools. Although Kennedy joined the four conservatives to create a majority ruling invalidating the policies, he wrote separately to disagree with the conservatives' assertion that states did not have a "compelling interest" in preventing racial segregation in schools. Kennedy, however, prefers more subtle policies to achieve this goal. Kennedy explains that explicit, rather than covert, race policies harm individual "dignity":

To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. And it is a label that an individual is powerless to change. Governmental classifications that command people to march in different directions based on racial typologies can cause a new divisiveness. The practice can lead to corrosive discourse, where race serves not as an element of our diverse heritage but instead as a bargaining chip in the political process. On the other hand race-conscious measures that do not rely on differential treatment based on individual classifications present these problems to a lesser degree.

Like Scalia, Kennedy fulfills Obama's "empathy" test because he expresses his own understanding of how race-based legislation "affects the daily realities of people's lives." If conservatives believe that Obama's empathy standard is illegitimate, then they should condemn Kennedy for modeling it in his opinions.

Conclusion
The preceding analysis discusses just a few of the many instances of conservative judicial empathy. Conservatives judges have "empathized" with white male discrimination plaintiffs whom they view as victims of feminism and civil rights. They have empathized with hypothetical women whom they feel are so distraught over their choice to have partial-birth abortions that their anxiety justifies a complete ban of the procedure. They have also empathized with whites subject to diversity and integration policies in the educational setting on the grounds that the conscious use of race offends their dignity. If conservatives truly believe that empathy has no role in judging, then they should reject displays of empathy among conservative justices. Do not hold your breath.

Update: More on Conservative "Empathy"
Talking Points Memo via Media Matters has a great report on President Bush and empathy. Apparently, when he introduced nominee Clarence Thomas, he marketed him as a "man of great empathy."

Voters Ban Same-Sex Marriage, Affirmative Action, and Gay Adoption, Reject Abortion Ban

Florida voters amended the state constitution to define marriage in heterosexual terms. So have California and Arizona voters (see here and here). Arkansas has voted to ban adoption and fostering by unmarried individuals, a law that targeted gays and lesbians. Nebraska voters have made affirmative action based on race, ethnicity, sex or national origin illegal in the state. A similar Colorado provision remains too close to call. In a bright spot for liberal issues, South Dakotans have rejected a blatantly unconstitutional abortion restriction.

FORTHCOMING ARTICLE: "RACIAL EXHAUSTION"

Abstract

Racial Exhaustion

Professor Darren Lenard Hutchson

Washington University Law Review (vol. 86, 2008)

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme Court have all taken a skeptical stance towards claims of racial injustice by persons of color and have resisted demands for tougher civil rights laws and race-based remedies. They have viewed these policies as: (1) unnecessary, given the eradication of racism and the prior implementation of formal equality measures; (2) excessive in terms of substance or duration; (3) futile because the law cannot alter racial inequality; (4) misguided because nonracial factors explain racial disparities; and (5) unfair to whites and a special benefit for persons of color. Adhering to these beliefs, a majority of the public has reached a point of racial exhaustion.

This Article argues that the public's racial exhaustion did not recently emerge, and it is a product of a hard-fought and successful battle against racial subjugation. Instead, throughout history, opponents of racial justice measures have invoked this discourse to contest equality measures and to portray the United States as a post-racist society, even when efforts to combat racial hierarchy were in an embryonic state and persons of color lived in extremely vulnerable political, social and economic conditions. To elaborate this claim, this Article examines political resistance to civil rights legislation and remedies immediately following the Civil War and during Reconstruction, after World War II and through the Cold War era, and in contemporary political and legal discourse in order to demonstrate the persistence of racial exhaustion rhetoric. This Article then considers how social movement actors, civil rights lawyers and theorists, and scholars interested in the interaction of law and rhetoric could respond to the persistent portrayal of racial egalitarianism as redundant and unfair by dissecting the premise of these claims, placing them in an historical context, and, if necessary, by strategically modifying their arguments to focus on class and other structural barriers that correlate or intersect with racial inequality. Despite the presumptive constitutionality of class-based remedies, political opposition to social welfare policies and the depiction of these programs as handouts to undeserving individuals - including persons of color - might limit the efficacy of economic approaches to racial inequality. Moreover, the intersection of race and poverty suggests that class-based remedies alone might not adequately address racially identifiable material inequity.

DOWNLOAD HERE: http://ssrn.com/abstract=1113563