Volume 106 of the Boston University Law Review includes the article "Who Owns Civil Rights History?" by Robert S. Chang (UC Irvine School of Law) and H. Tim Lovelace, Jr. (Duke Law School). The abstract:
In this Article, Professors Chang and Lovelace argue that affirmative action litigation is not simply about college admissions but about putting America’s racial history—and future—on trial. They highlight the critical role that the Supreme Court plays in constructing our nation’s collective memory in which it operates, functionally, as a court of history. At stake is historical memory, which is used to produce the instant outcome but which then contains and constrains future possibilities. The litigation results in an “opinion of the Court” written by the victors. The word “opinion” belies the power that the victors have in
narrating the official history, which becomes authoritative in our precedent- based system. As a result, racial justice is being written out of the official civil rights history narrated in the “opinion of the Court."In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court’s opinion does not use the word “affirmative action,” which allows Chief Justice Roberts to ignore how affirmative action was a critical part of the civil rights movement. This erasure allows him to characterize the civil rights movement and Brown v. Board of Education as if they were only ever animated by fealty to colorblindness. Part of constructing this revisionist civil rights history includes a repudiation of Korematsu v. United States. The Court, in essence, retroactively applies strict scrutiny to arrive at the conclusion that
Korematsu had been wrongly decided at the very moment that it applies strict scrutiny to Harvard’s and the University of North Carolina’s admissions policies to wipe out what it perceives to be the stain of race-conscious affirmative action. It asserts that this is precisely what Brown called for and requires. This parallelism in the application of strict scrutiny to the very disparate circumstances of Japanese American incarceration during World War II and affirmative action in selective college admissions becomes a central feature in the new challenges to race-conscious affirmative action at our nation’s military academies. This Article explores the invocation of Korematsu and Brown by litigants and the Court. It offers a corrective history of affirmative action to counter the Court’s erasure of that history.
The article is followed by a response by Ariela Gross (UCLA Law), titled "Erasing, Remembering Colorblindness." The response "expand[s] on" the article's "observations regarding the constitutional memory-work of SFFA, placing Chief Justice Roberts’ story in the broader context of the conservative movement’s memory of Brown and a colorblind Constitution." It "conclude[s] with a few thoughts regarding the alternative civil rights history Chang and Lovelace sketch that places affirmative action at its center."
-- Karen Tani
