California's Racial History and Constitutional Rationales for Race-Conscious Decision Making in Higher Education

Abstract:     
Richard Delgado and Jean Stefancic examine the history of racial mistreatment of citizens of color in California. Beginning with incidents of racial brutality during the early Spanish colonial period and proceeding into the present, Delgado and Stefancic reveal that California has not been the egalitarian paradise many suppose. The authors write against a background of recent attacks on affirmative action in higher education which raise the prospect that the diversity rationale that universities had relied on to justify race-conscious admissions policies may no longer be constitutional. Recognizing this possibility, the authors offer remediation-making amends for past misbehavior--as an alternative basis for maintaining race-conscious programs in higher education. In particular, the authors argue that historical and recent racial discrimination in states such as California provides sufficient justification for adjusting admissions and hiring practices so that affected minority groups are placed in the status quo ante, that is, the position they would have been in had the discrimination not taken place.

Keywords: racial discrimination, California history, civil rights, equal rights, college admissions, hiring practices, affirmative action, academia

Accepted Paper Series