For Whom Does the Affirmative Action Bell Toll? The Legal Deconstruction of Racial Classifications in Post-Civil Rights America.

The public and constitutional debate over affirmative action has focused on the justice of the policy, obscuring an equally central debate over which groups are to be included. The American historical context of racial injustice has led courts, scholars, and citizens alike to entrench a restrictive black-and-white categorization of race that has incorporated the other "official minorities" partially and incoherently. The rise of mixed-race identity and multiculturalism discourse have at once strengthened the foundations of the racial justice policy agenda and exposed the contradictions of this very policy agenda. This paper analyzes the "who" question of affirmative action (that is, how do universities and governments go about deciding who the recipients of affirmative action will be?) and how one strand of "colorblind" entrepreneurs is beginning to contradictions in who is and isn't counted as affirmative action beneficiaries. The paper updates the existing research on affirmative action's racial classifications by examining the Supreme Court's 2003 Grutter v. Bollinger and Gratz v. Bollinger decisions on affirmative action at the University of Michigan along with the Court's 2007 Parents v. Seattle decision on voluntary school integration policies. I argue that the increased attention to the "who" question exposes affirmative action's legal vulnerabilities. The "social construction of race" analysis has the potential to wound affirmative action policy from not only those who want to bolster affirmative action and school integration policies but also from those who want to dismantle them. Supporters of affirmative action are partly responsible for this vulnerability. The taken-for-granted, quiet method by which affirmative action beneficiaries were casually expanded via bureaucratic channels leaves gaping contradictions waiting to be exploited by critics of affirmative action. On the other hand, pro-affirmative action legal entrepreneurs have insulated affirmative action well from its predicted demise thus far by rooting the policy in the diversity rationale. The constitutional status of affirmative action and school integration policies may be at a crossroads. The diversity rationale has thus far insulated affirmative action from its predicted demise before the Supreme Court. The Court's continuing scrutiny of affirmative action policy methods has paradoxically bred new strains of affirmative action that appear to be resistant to judicial attack. Whether the same is the case for school integration policy remains to be seen. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]