Legal Education and the Ecology of Cultural Justice: How Affirmative Action can Become Race-Neutral by 2028

Abstract

In this Article, I offer a provocative perspective on the future of affirmative action in higher education. I take issue with both sides in the current debate. End or defend? Neither side is facing reality.

So how do I propose to satisfy both legal demands under the U.S. Constitution while responding honestly to rampant, systemic racism in this country? I argue that affirmative action has lost its way and must return to its true meaning and purpose; indeed, affirmative action is the only hope we have of returning to a path that is both acceptable by law and supportable by a vast majority of Americans. The way back is the way forward: allow every applicant who otherwise would not be admitted by the numbers to apply for special consideration in the admissions process based on a proven commitment to complete a clinical curriculum in law and integration studies. By extending the opportunity of exceptional educational training to every applicant ready and willing to advance progressive public policy negotiation and broad-based, community problem solving, affirmative action returns to its original purpose of healing America of racist wounds.

In Part II of this Article, I describe the impact of Brown v. Board of Education on my own search for emergence as an American. This is my post-Brown narrative: I am racialized. I am Chicano. I was born the same year that Brown ended legal segregation. I was raised trying to survive drugs, gangs, and gunfire in a tough Los Angeles ghetto. I had no hope that my story would be any different from millions of other impoverished children of immigrants. But my life story changed dramatically and gained American texture through higher education at Yale University, legal training at the University of California, Berkeley, and a career as a law professor - all thanks to affirmative action.

In Part III, I examine the U.S. Supreme Court's rulings in Grutter and Parents Involved. Finally, in Part IV, I pose the question: What, then, will become of America's post-Brown narrative? I tie the two recent U.S. Supreme Court rulings and my life story to my clinical development of an alternative construction of affirmative action. I argue that cultural diversity must be understood as too limited a goal.

Rather than develop my arguments in the abstract for moving beyond substance-driven goals to process-driven affirmative action, I report below on a clinical law school case study on the ecology of cultural justice. This example, which examines the connection between K-12 education and the juvenile justice system, illuminates stages and principles of integrationist studies and practice that inform and guide the ecology of cultural justice.

Students of all ages, especially children, deserve the best education we can give toward improving race relations in America. Are we proceeding with all deliberate speed?

Keywords: Cultural justice, affirmative action, Brown v. Board of Education, Grutter v. Bollinger, Parents Involved in Community Schools v. Seattle School District No. 1, law school admissions, racial discrimination, diversity, integrative bargaining, clinical legal education, juvenile corrections