Hastings Constitutional Law Quarterly


This Article describes the law and practice of affirmative action under the United States Supreme Court's new restrictive rules, and presents the details of over one hundred studies demonstrating the prevalence of discrimination against women and minorities in the areas of education, employment, housing, health care, economic growth, wealth and poverty, and in the operation of the criminal justice system. Following a discussion of the law and practice of affirmative action and the psychology of discrimination, this Article presents results of studies demonstrating that public education throughout America is largely segregated, with minority children attending vastly inferior schools. It reports that employment discrimination against women and minorities is endemic, and as a result, even among equally educated full-time employees, white men earn substantially more than women and minority men. In housing, as in education, there exists a high level of racial segregation across America. Separation of white neighborhoods from black neighborhoods transcends class-even affluent blacks live largely among other blacks. On the subject of health care, this Article describes the dramatic disparities between the care afforded whites and minority group members. A recent series of studies establishes that when all other variables are held constant, whites receive significantly more aggressive treatment for disease than do blacks. In the area of economic opportunity, this Article discusses a series of recent studies demonstrating that despite various affirmative action programs, minority group members face substantial discrimination in amassing capital and in winning bids on government jobs. As a result, race affects the opportunity to start one's own business. On the subject of wealth, this Article relies on census data to disclose that poverty is wide-spread among racial minority groups, and that black and Hispanic families are far more likely to be poor and to be stuck in chronic poverty than are white families. Moreover, even among the well-educated middle class, whites are far wealthier than blacks. Finally, in its discussion of the criminal justice system, this Article presents evidence that blacks and Hispanics are more likely to be stopped by the police and arrested, and once arrested are more likely to be prosecuted, convicted, sentenced to prison, and to receive longer sentences than are whites who have committed the same offenses. Minorities are also far more likely to be crime victims than whites, and are less likely to be employed as peace officers. This comprehensive study helps demonstrate that a central tenet of the campaign to end affirmative action-the claim that discrimination against minorities has largely disappeared from American life-is simply not true.