Toward a New Civil Rights Framework

The problem of racial discrimination has reached a point of equipoise. When one examines closely the lived lives of citizens of color across some of the most pertinent evaluative domains, one clearly finds that citizens of color are not enjoying the full benefits of American citizenship. African Americans, Latinos, and Native Americans lag behind Whites and sometimes Asian Americans on almost all relevant socio-economic indicators. What it means to be an American citizen is different for most folks of color than for most Whites. Looking at the gaping racial disparities on most socio-economic indicators, there are clearly two classes of citizens: Whites and coloreds. Very few individuals would dispute the fact that we have a race problem. However, with the elimination of de jure discrimination presaged by constitutional and statutory commitments to formal racial equality, we seem to have exhausted the possibilities of positive law, including constitutional lawmaking, to achieve greater racial equality. Simple legal prescriptions, statutory and constitutional, are most effective in precluding overt intentional racial discrimination and in eliminating de jure discrimination. Law is significantly less effective when put to more offensive use—that is, as a sword of racial equality—as opposed to defensive use—that is, as a shield to defend racial equality measures. It is then no surprise that the civil rights movement is dead and that a racial malaise has set in. We have very little to say about race because we have reached a point of equilibrium that is destined to rigorously enforce formal equality but never reach actual racial parity. Actual parity among the races is elusive because it would demand a commitment by the state to dismantling the structural underpinnings of racial exclusion. This is a commitment that does not currently exist from the positive law framework and is not currently on the public policy agenda. In her most recent piece, The Architecture of Inclusion: Advancing Workplace Equity in Higher Education, Professor Susan Sturm provides much needed guidance toward destabilizing this perverse equilibrium.1 Building upon previous work that identifies the structural pathologies of discrimination,2 Professor Sturm turns her focus to higher education to reveal the micro-structural elements of inclusion. She focuses in particular on gen-