Civil rights Perestroika: Intergroup relations after affirmative action

bt this Article, Professor Krieger examines the implications of social cognition and social identify theory for the debate over affirmative action. In Part I, she explores the extent to which insights from those fields support the claim that affirmative action preferences exacerbate intergroup tensions and perpetuate certain subtle forms of intergroup bias. Finding qualified support for that view in both theoretical models and empirical evidence, Part I concludes that at least certain preferential forms of affirmative action may injure intergroup relations in a variety of troubling ways, Extending the analysis in Part II, Professor Krieger inquires whether, absent preferential forms of affirmative action, remaining legal and policy tools I-till suffice to control discrimination and prevent the further segregation of American society. Part II concludes that these remaining tools, which include a colorblindness model of nondiscrimination, reliance on an objective concept of merit, and the use of individual disparate treatment adjudication as a primary law enforcement tool, are unequal to the task. The misplaced confidence in these tools often found among affirmative action opponents derives, Krieger suggests, from a misunderstanding of the nature and sources of intergroup bias, from a failure to recognize its subtlety and tendency to persist over time, and from over-reliance on limited adjudicatory and regulatory approaches to address what is fundamentally a complex cultural problem. Accordingly, Professor Krieger argues that we are not yet ready to abandon preferential forms of affirmative action for the simple reason that we have nothing adequate with which to replace them. Unless more inclusive jurisprudential models of intergroup bias and new approaches to reducing such bias are developed, the problems of discrimination and inequality of opportunity can be expected to worsen in a post-affirmative action environment. In her Conclusion, Krieger articulates a set of first principles and constructs ct general conceptual foundation for the future development of such a broadened view.