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On October 27, 1996, as the cameras rolled, San Francisco Mayor and former California State Assembly Speaker Willie L. Brown, Jr. took the stage in a drab auditorium on the campus of San Francisco State University.

This November, the citizens of California will vote on a proposition to remove the following words from their state constitution: “The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”

The extraordinary protests and marches that swept the United States during the late spring, in the wake of the death of George Floyd, centered on calls for racial justice, but specific proposals to define and achieve racial justice were scarce.

The widespread, controversial protests against racial injustice that began in the spring of 2020 offer hope that U.S. culture may be evolving to a more sophisticated conception of racial equality.

In An Intersectional Critique of Tiers of Scrutiny, Professors Devon Carbado and Kimberlé Crenshaw infuse affirmative action with an overdue dose of intersectionality theory. Their intervention exposes equality law as an unmarked intersectional project that “privileges the intersectional identities of white antidiscrimination claimants.”

At the same time that a national racial reckoning has galvanized students to press higher education institutions (HEIs) to face up to their legacies of racism and commit to antiracism, courts are considering arguments for prohibiting consideration of race in admissions decisions.

For all of the legal and political contention surrounding affirmative action, one facet of the discussion is characterized by a curious, if implicit, consensus that spans all manner of ideological and partisan divisions.

A core ideal of Anglo-American law is that legal wrongs should be remedied by restoring the injured victim to the “rightful position.”

What’s still interesting is that the affirmative-action wars reflect larger issues, such as the betrayed promise of the civil-rights legislation and the Fourteenth Amendment guarantee of equal protection as well as the dishonesty, denial, and dysfunction surrounding questions of racial justice more generally.