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Boston University Law Review


Significant research in social science describes racial inequality as grounded in notions of group identity and group conflict. Sociologists and social psychologists who study discrimination and prejudice have moved away from theories that explain prejudice solely as a problem of individual perception, and toward theories that view individual cognitive processes as related to group membership. While present social science yields no consensus view, there is a striking emphasis in the current literature on group identity theories as "powerful determinants of behavior." These theories, which stress the importance of prejudice as a group-based phenomenon and focus on "social-structural theories of group competition," are particularly resonant for our discussion of affirmative action and competitive process distortion. Thus, social science scholarship has recognized that discriminatory behaviors are not just the result of personal, individual cognitive-process distortions, but are a problem of collective action.

This article explores this notion of collective action by analyzing the process by which blacks and whites compete for resources and benefits and highlights three areas in which this anti-competitive conduct can be seen: employment, housing and education. Through strict scrutiny analysis, recent jurisprudence takes an unduly limited approach to interpreting the demands of equal protection. In these three disparate areas, lower federal courts have engaged in a similar strict scrutiny analysis in reviewing affirmative action programs. In each area, the respective court failed to engage in a meaningful compelling governmental interest analysis, allowing it to ignore the competitive dynamics underlying each case. These courts then jumped to a truncated narrow tailoring inquiry, which allowed them to strike down the affirmative action plans presented. This approach short-circuits meaningful judicial review of the affirmative action plans crafted by governmental actors. As a result, the courts leave intact structures that benefit whites at the expense of blacks. By viewing cases in these areas through the lens of competition, we see that different outcomes are both possible and advisable.

The Tenth Circuit's most recent decision in the long-running Adarand litigation highlights the approach this article advocates because the court began to shift toward viewing discrimination as a form of anti-competitive conduct. This approach allowed the court to engage in a meaningful compelling governmental interest inquiry and allowed it to see the ways in which discrimination locked-in benefits for one group over time. In beginning to use the language of competition, the court was on the right track toward a fuller and richer conception of inter-group conflict and anti-competitive conduct. By following Adarand's lead and analyzing affirmative action disputes through the lens of competition, courts and policy-makers will develop a more complete understanding of the dynamics of discrimination and will develop more thorough tools with which to evaluate cases and create affirmative action policy.



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Boston University School of Law


affirmative action, discrimination, constitutional law, racism, racial discrimination, strict scrutiny



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