Affirmative Action and Ethnic Niches: A Legal Afterword
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Description
This volume paints a valuable empirical portrait of affirmative action that is revealing on a number of levels—how it emerged (chapter 1), how it is viewed and practiced in private-sector employment (chapter 4) and higher education (chapter 5), what we as a nation believe about it (chapters 8 and 9), and how it is practiced elsewhere in the world (chapters 10-12). Most important from an American legal standpoint are the insights the volume offers on how the environment in which American antidiscrimination law operates has become increasingly complex due to interethnic conflict and immigration (chapters 2, 3, 6, and 7). We lawyers and legal academics tend to view the world through the lens of litigation. Because not every social practice that can be challenged is challenged, however, litigation is hardly a reliable perspective. Just as there was a long hiatus in social science research on affirmative action there was a long period without strong legal—or, for that matter, political—challenges to affirmative action as practiced. Similarly, ethnic niches in employment have long been a standard feature of American life, but only recently have they begun to attract legal attention. Some of the social practices described in this volume may seem reasonable to Americans, but are patently illegal under current law. Some are of questionable legality. Some are plainly legal now, but may not be for long. My aim here is to describe the legal framework that would presently be brought to bear in judging them, and in so doing to reveal the gap that exists between the law and America's ethno-racial reality. In describing this gap, I do not mean to suggest that the right answer is for legal actors to change the law to accommodate newly pervasive social practices. I am, however, suggesting that actors within the legal system must learn to see the new realities of interethnic conflict and competition, and must develop a coherent response to them.
Source Publication
Color Lines: Affirmative Action, Immigration, and Civil Rights Options for America
Source Editors/Authors
John David Skrentny
Publication Date
2001
Recommended Citation
Malamud, Deborah C., "Affirmative Action and Ethnic Niches: A Legal Afterword" (2001). Faculty Chapters. 1301.
https://gretchen.law.nyu.edu/fac-chapt/1301
