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84 Cal L. Rev. 953 (1996)
The Future of Affirmative Action: Reclaiming the Innovative Deal

handle is hein.journals/calr84 and id is 967 raw text is: The Future Of Affirmative Action: Reclaiming The Innovative Ideal Susan Sturmt Lani Guiniert We are witnessing a broad-based assault on affirmative action-in the courts,' the legislatures,2 and the media.' Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity.' Opponents successfully depict racial preferences as Copyright 0 1996 Susan Sturm and Lani Guinier. t Professor of Law, University of Pennsylvania. t Professor of Law, University of Pennsylvania. We deeply appreciate the helpful comments and suggestions of many colleagues on earlier drafts of this article, including Mary Frances Berry, James Crouse, Dayna Cunningham, Harlon Dalton, George Madaus, Paul Minorini, Martha Minow, William Eric Perkins, Michael Selmi, and participants in the Diversity of Language Seminar at the University of Pennsylvania and the New Paradigms Symposium, supported by the Ford Foundation and the Annenberg Public Policy Center. We are also grateful for the research assistance of Marc Kesselman and Monifa Williams. 1. See City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion); Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (holding that a law school may not use diversity as a basis for taking race into account in law school admissions), cert. denied, 116 S. Ct. 2582 (1996); Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1994) (striking down the use of race-based scholarships), cert. denie4 115 S. Ct. 2001 (1995). 2. See Steven A. Holmes, As Affirmative Action Ebbs, A Sense of Uncertainty Rises, N.Y. TimEs, July 6, 1995, at Al (discussing former Senate majority leader and presidential candidate Bob Dole's drafting of legislation intended to end special considerations of race in Federal programs); Donna St. George, For White Men, Anger Taking Political Shape, PHLMA. INQUIRER, Nov. 12, 1995, at Al (describing efforts in the Illinois, Georgia, and Pennsylvania state legislatures to end race and gender preferences). In the words of Constance Homer, a member of the U.S. Civil Rights Commission, It's the end of an era. What tells us that this is the end of an era is that all branches of government-the courts, the Congress, the White House, even the state legislatures-are actively engaged in the same process, and that's a rare event in American politics. Id. 3. See Janine Jackson, White Man's Burden: How the Press Frames Affirmative Action, EXTRA!, Sept.-Oct. 1995, at 7 (describing press tendency to define affirmative action using the hot- button term quota, to ignore realities of continuing discrimination against women and people of color, and to portray questions of discrimination as most importantly the concern of white men); Robert M. Entman, Accentuating the Negative: Media Coverage of Affirmative Action (Nov. 15, 1995) (unpublished manuscript, on file with authors). 4. See, e.g., HERMIfAN BELZ, EQUALrrY TRANSFORMED: A QUARTER-CENTURY OF AFFIRMATIVE ACTION 17-18 (1991) (arguing that racial preferences distort the color-blind ideal originally contemplated by the sponsors of the Civil Rights Act of 1964); Morris B. Abram, Affirmative Action: Fair Shakers and Social Engineers, 99 HARv. L Rv. 1312 (1986) (arguing that color- conscious remedies exacerbate racial tensions and contravene the original goal of the civil rights

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