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Vanderbilt Law Review

Article Title

The Rhetoric of Equality

Authors

Neal Devins

First Page

15

Abstract

The affirmative action debate appears intractable. On one side, those employing the "rhetoric of innocence" use contemporaneous findings of actual discrimination as the gauge that defines victim status. This rhetoric proclaims affirmative action plans that define eligibility by group status, rather than by individualized proof of victim status, both harmful to innocent whites and beneficial to undeserving minorities. In sharp contrast, those employing the "rhetoric of guilt"' contend that "unconscious racism' makes it impossible for whites to treat minorities as equals. Under this view, "[b]ecause racial discrimination is part of the cultural structure, each person of color is subject to it, everywhere and at all times." Thus, the "rhetoric of guilt" turns the "rhetoric of innocence" on its head. Whites "generally have benefited from the oppression of people of color,"' whereas minorities are victims of pervasive racism.

Professor Thomas Ross's Innocence and Affirmative Action' is an excellent presentation of what I have labeled the "rhetoric of guilt." Ross argues that the "rhetoric of innocence" serves as a smoke screen to unconscious racism and hence is a "very dangerous idea which simply does not belong in the affirmative action debate." On this level, Ross's argument is sound." Ultimately, however, Ross misses the mark. Although the "rhetoric of innocence" is too constrained, the "rhetoric of guilt" is too expansive. Because unconscious racism cannot be detected solely through evidence of discriminatory intent, disparate impact becomes the talisman of Ross's equality model. But court-imposed disparate impact analysis is a poor substitute for the "rhetoric of innocence."

In order to avoid the pitfalls of these competing rhetorics, a new investigation of the rhetoric of equality is needed. This investigation will implicate two central values of equality, namely, the antidiscrimination principle disfavoring group-conscious decisions and the separation of functions principle that recognizes the breakdown of the democratic process associated with race-conscious decision making." The articulation of a position that emphasizes both values will explain why minorities and nonminorities are deemed similarly situated individuals, not members of groups, and will reveal a viable middle ground between the competing rhetorics of innocence and guilt. This middle ground allows a limited judicial and a broad legislative role to redress the problems of unconscious racism.' After examining the strengths and pitfalls of the competing rhetorics, this Article will advance an argument in support of the middle-ground position.

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