FOREWORD

AGENDA

SATURDAY, NOVEMBER 8, 1997

Introductory Remarks 1:00 p.m. – 2:00 p.m.

Mark Wrighton, Chancellor, Washington University
Jack Knight, Social Thought & Analysis, Washington University
Marc Galanter, Institute for Legal Studies, University of Wisconsin
N.R. Madhava Menon, National Law School of India
Clark D. Cunningham, Washington University School of Law

INDIA
SOUTH AFRICA

Concurrent Sessions on Affirmative Action

Session I 9:30 a.m. - 11:30 a.m.

Group A: Selecting and Defining Groups to Receive Preference

Group B: Program Design: Quotas v. Goals v. Incentives/Subsidies

Group C: Evaluating Effects: Positive and Negative

Session II 1:30 p.m. – 3:30 p.m.

Group A: Higher Education

Group B: Private Sector Employment

Group C: Government: Employment and Governance MONDAY, NOVEMBER 10, 1997

9:00 a.m.

Opening Plenary

Dorsey D. Ellis, Jr., Dean, Washington University School of Law

John Bowen, Social Thought & Analysis, Washington University

Clark D. Cunningham, Washington University School of Law

9:15 a.m.

Session I

Pauline Kim, Washington University School of Law

John J. Donohue III, Stanford Law School

B.P. Jeevan Reddy, Justice, Supreme Court of India (retired)

Sunita Parikh, Department of Political Science, Washington University

Session II

John Bowen, Department of Anthropology, Washington University

Linda Krieger, University of California, Berkeley Law School

Pansy Tlakula, Human Rights Commission, South Africa

Aaron Porter, Department of Sociology, University of Illinois

10:15 a.m.

Session I

Garrett Duncan, Department of Education, Washington University

Gerald Torres, University of Texas Law School

Joshua Aronson, Department of Educational Psychology, University of Texas

Karthy Govender, Law Faculty, University of Natal-Durban, South Africa

Session II

Karen Tokarz, Washington University School of Law

Lani Guinier, University of Pennsylvania Law School

Jack Knight, Department of Political Science, Washington University

David Oppenheimer, Golden Gate Law School

11:15 a.m.

Session I

Karen Porter, Washington University School of Law

Virginia Dominguez, Department of Anthropology, University of Iowa

M.N. Srinivas, National Institute of Advanced Studies, India

1:15 p.m.

Closing Plenary

Marc S. Galanter, University of Wisconsin Law School

N.R. Madhava Menon, National Law School of India

Clark D. Cunningham, Washington University School of Law

BIOGRAPHIES OF CONFERENCE PARTICIPANTS

Joshua Aronson, Assistant Professor of Social and Educational Psychology
University of Texas at Austin
B.A. University of California, Santa Cruz (1986); M.S. Princeton University (1989); Ph.D. Princeton University (1992).

His research focuses on the effects of racial stereotypes on the academic achievement, attitudes and self-esteem of minority students. He has conducted numerous studies examining how awareness of stereotypes interferes with performance on standardized tests, thus offering an alternative account to genetic and cultural accounts for race and gender differences in testing and school performance. His most recent work offers innovative methods of improving the performance of African American college students. His awards for research include a Spencer fellowship and a James S. McDonnell fellowship. His publications include, Stereotype Threat and the Academic Performance of Minorities And Women, in J. Swim and C. Stangor (Eds.), PREJUDICE: THE TARGET'S PERSPECTIVE, Academic Press (with Diane Quinn and Steven Spencer), Stereotype Threat and the Intellectual Test Performance of African-Americans, 69 J. PERSONALITY & SOC. PSYCHOL. 797 (with Claude Steele), and How Stereotypes Influence the Standardized Test Performance of Talented African American Students, in C. Jencks & M. Phillips (Eds.), BLACK-WHITE TEST SCORE DIFFERENCES, Harvard Press (with Claude Steele).

Ian Ayres, William K. Townsend Professor
Yale Law School
B.A. Yale University (1981); J.D. Yale Law School (1986); Ph.D. Massachusetts Institute of Technology (1988).

He clerked for the Honorable James K. Logan of the Tenth Circuit Court of Appeals, previously taught at Northwestern, Stanford and Virginia law schools, and has been a research fellow of the American Bar Foundation. His scholarship focuses on antitrust, contracts, corporations, civil rights, and the field of law and economics. He has advised the U.S. Department of Justice in the development of affirmative action policies and procedures. His publications include Narrow Tailoring, 43 UCLA L. REV. 1781 (1996), The Q-Word as Red Herring: Why Disparate Impact Liability Does Not Induce Hiring Quotas, 74 TEX. L. REV. 1487 (1996) (with Peter Siegelman), and Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817 (1991).

John Bowen, Professor of Anthropology and Chair, Committee on Social Thought & Analysis
Washington University
B.A. Stanford (1973); Ph.D. University of Chicago (1984).

He is currently working on modern legal changes and religious jurisprudence in Indonesia, and has most recently written on ethnic conflict, Islamic ritual, and comparative methods in the social sciences. His publications include MUSLIMS THROUGH DISCOURSE: RELIGION AND RITUAL IN GAYO SOCIETY (1993), SUMATRAN POLITICS AND POETICS (1991), and RELIGIONS IN PRACTICE (1997).

Clark D. Cunningham, Professor of Law
Washington University
A.B. Dartmouth College (1975); J.D. Wayne State University (1981).

He has been a visiting scholar at the Indian Law Institute, Sichuan University in China, the University of Sydney, and the National Law School of India. He received an Indo-American Fellowship for a comparative study of civil rights litigation in the Supreme Courts of India and the United States, and is currently the director of a U.S.-India Ford Foundation project, Enforcing Human Rights Through Law School Clinics. His publications include Why American Lawyers Should Go to India, 16 LAW & SOC. INQ. (J. OF THE AMERICAN BAR FOUND.) 777 (1991), Plain Meaning and Hard Cases, 103 YALE L.J. 1561 (1994) (with others), and A Linguistic Analysis of the Meanings of "Search" in the Fourth Amendment, 73 IOWA L. REV. 541 (1988), which won the 1988 Scholarly Paper Competition of the Association of American Law Schools.

Virginia R. Dominguez, Co-Director of the International Forum for Studies
Professor of Anthropology
University of Iowa
B.A. Yale University (1973); M.Phil. Yale University (1975); Ph.D. Yale University (1975).

She is immediate past Director of the Center for International and Comparative Studies at the University of Iowa. Nationally she serves on the Board of Directors of the Society for Cultural Anthropology and on the editorial boards of PUBLIC CULTURE, the AMERICAN ETHNOLOGIST, Public Worlds Books (University of Minnesota Press), and Transnational Cultural Studies (University of Illinois Press). She was born in Cuba, but spent much of her early life in and out of the U.S. She has taught at Duke University, the Hebrew University of Jerusalem, the University of California at Santa Cruz, and the University of Iowa. Her work has focused for many years on the historical and cross-cultural analysis of systems of social classification, how they develop, become discursively naturalized and institutionally entrenched. Among her publications are WHITE BY DEFINITION: SOCIAL CLASSIFICATION IN CREOLE LOUISIANA (1986); PEOPLE AS SUBJECT, PEOPLE AS OBJECT: SELFHOOD AND PEOPLEHOOD IN CONTEMPORARY ISRAEL (1989), and 4 (co)edited collections, including QUESTIONING OTHERNESS (1995), (MULTI) CULTURALISMS AND THE BAGGAGE OF "RACE" (1995), and the forthcoming FROM BEIJING TO PORT MORESBY: THE NATIONAL(IST) POLITICS OF CULTURAL POLICIES.

John J. Donohue III, John A. Wilson Distinguished Faculty Scholar
Stanford Law School
B.A. Hamilton College (1974); J.D. Harvard Law School (1977); M.A. Yale University (1982); M. Phil. Yale University (1984); Ph.D. Yale University (1986).

He became a member of the Stanford faculty in 1995 after nine years at the Northwestern University School of Law. He specializes in law and economics, and has written in the areas of employment discrimination, criminal justice policy, corporate law, and the empirical evaluation of public policy measures. His publications include FOUNDATIONS OF EMPLOYMENT DISCRIMINATION LAW (1997), Employment Discrimination Law in Perspective: Three Concepts of Equality, 92 MICH. L. REV. 2583 (1994), and Diverting the Coasean River: Incentive Schemes to Reduce Unemployment Spells, 99 YALE L.J. 549 (1989), which won the 1989 Scholarly Paper Competition of the Association of American Law Schools.

Garrett Albert Duncan, Assistant Professor of Education and African and Afro-American Studies
Washington University
B.S. California State Polytechnic University (1984); Ph.D. Claremont Graduate School (1994).

He is a former middle and senior high school science teacher. In his research and writing, he seeks to clarify the construction and experience of adolescents of color in the United States, Black youth in particular, and to design and implement anti-racist pedagogy and systemic interventions. His current research focuses on adolescent language and literacy as these practices inform the moral and political lives of Black youths. His publications include The Play of Voices: Black Adolescent Literacy as Mediated Action (forthcoming), Educating Adolescent Black Males: From Self-Esteem to Human Dignity, in L. Davis (Ed.), AFRICAN AMERICAN MALES: A PRACTICE GUIDE (1997), and Space, Place, and the Problematic of Race: Black Adolescent Discourse as Mediated Action, J. NEGRO EDUC., 65(2), 133-150.

Richard G. Fox, Professor of Anthropology
Washington University
B.A. Columbia University (1960); M.A. University of Michigan (1961); Ph.D. University of Michigan (1965).

He is editor of Current Anthropology and was a member of the Institute for Advanced Study in 1971 and a Guggenheim Fellow in 1987. His publications include LIONS OF THE PUNJAB (1985), GANDHIAN UTOPIA (1989) and, as editor, BETWEEN RESISTANCE AND REVOLUTION: CULTURAL POLITICS AND SOCIAL PROTEST (1997).

Marc Galanter, John & Bylla Bossnard Professor of Law and Director of the Institute of Legal Studies
University of Wisconsin-Madison
B.A. University of Chicago (1950); M.A. University of Chicago (1954); J.D. University of Chicago (1956).

He is past president of the Law and Society Association, a former editor of LAW & SOCIETY REVIEW, and past chair of the Association of American Law Schools= Section on Law and Social Science. His publications include COMPETING EQUALITIES (1984), an extensive, empirically-based study of India=s affirmative action programs for untouchables and other backward classes, as well as LAW AND SOCIETY IN MODERN INDIA (1989) and TOURNAMENT OF LAWYERS (1991) (with Thomas M. Palay).

Karthigasen Govender, Professor and Acting Head
Department of Public Law, University of Natal-Durban
LL.B London (1981); LL.B. University of Natal (1986); LL.M. University of Michigan (1988).

He is a member of the South African Human Rights Commission and has participated in a number of cases before the Constitutional Court of South Africa as a practicing attorney. In 1995-96 he was Technical Advisor to the KwaZulu-Natal Provincial Legislature=s Constitutional Drafting Committee, and he has been a Mediator for the Independent Mediation Service of South Africa since 1991. He has been a Fulbright Scholar at the University of Michigan Law School. His publications include An Analysis of the Federal Features of the Interim Constitution, 3 REVIEW OF CONSTITUTIONAL STUDIES (UNIVERSITY OF ALBERTA) 76 (1996) and Administrative Law and Democracy in South Africa, OBITER (1993); he is Editor of THE HUMAN RIGHTS AND CONSTITUTIONAL LAW JOURNAL OF SOUTHERN AFRICA (Issue Three 1996).

Lani Guinier, Professor of Law
University of Pennsylvania
B.A. Radcliffe College (1971); J.D. Yale Law School (1974).

She was a civil rights lawyer for more than ten years with the NAACP Legal Defense and Educational Fund, Inc. and the U.S. Department of Justice. She has received the 1995 Margaret Brent Women Lawyers of Achievement Award from the ABA Commission on Women in the Profession, the 1995 Champion of Democracy Award from the National Women's Political Caucus, and the 1994 Rosa Parks Award from the American Association of Affirmative Action. Her publications include The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CAL. L. REV. 953 (1996) (with Susan Sturm), THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY (1994), and BECOMING GENTLEMEN: WOMEN, LAW SCHOOLS AND INSTITUTIONAL CHANGE (1997) (with others).

Cheryl I. Harris, Associate Professor of Law
Chicago-Kent College of Law
B.A. Wellesley College (1973); J.D. Northwestern University (1978).

During the 1995-96 and 1996-97 academic years, she was a Visiting Professor at UCLA School of Law teaching courses in Constitutional Law, Civil Rights, and other courses relating to race and the law. She played an important role in establishing the dialogue between U.S. law professors and lawyers and the ANC's Department of Legal and Constitutional Affairs and other crucial actors on South Africa's new Constitution. She was part of a 1991 Conference at the University of the Western Cape on Constitution Making and also assisted in organizing and participated in subsequent conferences and fora on these issues. She has lectured at a number of leading institutions and has participated in numerous conferences and workshops on contemporary issues and developments particularly relating to race. Her publications include Finding Sojourner's Truth: Race, Gender and the Institution of Slavery, 18 CARDOZO L.J. 1901 (1996), Whiteness as Property, 106 HARV. L. REV. 1707 (1993) (reprinted in CRITICAL RACE THEORY; KEY WRITINGS THAT FORMED A MOVEMENT ed. K. Crenshaw et al.) (1996), and Law Professors of Color and the Academy: Of Poets and Kings, 68 CHICAGO-KENT L. REV. 331 (1992) (reprinted in CRITICAL RACE FEMINISM, A. Wing ed.) (1997).

Pauline Kim, Associate Professor of Law
Washington University
B.A. Harvard University (1984); J.D. Harvard Law School (1988).

She was formerly a staff attorney at the Legal Aid Society of San Francisco where she litigated employment discrimination cases. Her research concentrates on the legal regulation of the workplace, and includes empirical study of the influence of legal rules in the employment context. Her publications include Bargaining with Imperfect Information: A Study of Worker Perceptions of Legal Protections in an At-Will World, forthcoming in CORNELL L. REV., Volume 83, Issue 1 (1997), and Privacy Rights, Public Policy and the Employment Relationship, 57 OHIO ST. L.J. 671 (1996).

Jack Knight, Associate Professor of Political Science
Washington University
B.A. University of North Carolina at Chapel Hill (1974); J.D. University of North Carolina at Chapel Hill (1977); M.A. University of Chicago (1980); Ph.D. University of Chicago (1984).

He is a political and social theorist who is currently working on projects related to (1) the role of social norms in culturally-diverse societies, (2) the pragmatic bases of democratic legitimacy and (3) the institutionalization of the rule of law. His publications include INSTITUTIONS AND SOCIAL CONFLICT (1992), EXPLAINING SOCIAL INSTITUTIONS (1995) and THE CHOICES JUSTICES MAKE (1997).

Linda Hamilton Krieger, Acting Professor of Law
University of California School of Law (Boalt Hall)
B.A. Stanford University (1975); J.D. New York University (1978).

She taught previously at Stanford Law School and was a research fellow at the Stanford Center on Conflict and Negotiation. She served as a trial attorney for the US Equal Employment Opportunity Commission and was a staff attorney at the Employment Law Center of the San Francisco Legal Aid Society. Her publications include The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161 (1995), Symposium on the Twenty-First Century Lawyer: On Teaching Professional Judgment, 69 WASH. L. REV. 527 (1994) (with Paul Brest), and The Miller-Wohl Controversy: Equal Treatment, Positive Action, and the Meaning of Women=s Equality, in FEMINIST LEGAL THEORY: FOUNDATIONS (ed. D. Kelly Weisberg) (1993).

Timothy J. Lensmire, Associate Professor of Education
Washington University
B.S. University of Wisconsin at Stevens Point (1983); Ph.D. Michigan State University (1991).

His research and writing focuses on the development of student voice through writing, and teaching in a pluralistic world. His publications include WHEN CHILDREN WRITE: CRITICAL RE-VISIONS OF THE WRITING WORKSHOP (1994), Writing Workshop as Carnival: Reflections on an Alternative Learning Environment, 64 HARV. EDUC. REV. 371 (1994), and Appropriating Others= Words, 23 LANGUAGE IN SOC. 411 (1994) (with D. Beals).

Glenn C. Loury, University Professor
Professor of Economics and Director of the Institute on Race and Social Division
Boston University
B.A. Northwestern University (1972); Ph.D. Massachusetts Institute of Technology (1976).

He is an economic theorist, with publications in the fields of game theory, industrial economics, natural resources and economics of income inequality. He has been a scholar in residence at Oxford University, Tel Aviv University, the University of Stockholm, the Delhi School of Economics, and the Institute for Advanced Study at Princeton. He is a Fellow of the Econometric Society, and was elected Vice President of the American Economics Associations for 1997. His publications include Will Affirmative Action Policies Eliminate Negative Stereotypes?, 83 AMERICAN ECON. REV. 1220 (1993) (with Stephen Coate), The Incentive Effects of Affirmative Action, 523 ANNALS OF THE AMERICAN ASS'N OF POL. & SOC. SCI. 19 (September 1992), and ONE BY ONE, FROM THE INSIDE OUT: ESSAYS AND REVIEWS ON RACE AND RESPONSIBILITY IN AMERICA, which won the 1996 American Book Award and the 1996 Christianity Today Book Award.

N.R. Madhava Menon, Professor
National Law School of India University
BSc. Kerala University (1953); B.L. Kerala University (1955); M.A. Punjab University (1960); LL.M. Aligarh Muslim University (1962); Ph.D. Aligarh Muslim University (1968).

He is the former dean of the National Law School and the immediate past-President of the Commonwealth Legal Education Association. He has previously been Head of the Department of Law, Delhi University; Principal of the Government Law College, Pondicherry (India); a Fellow of the American Council of Learned Societies; Editor of the INDIAN BAR REVIEW; and Secretary of the Bar Council of India Trust. In 1994 the International Bar Association conferred on him its Living Legend of Law Award. His publications include SOCIAL JUSTICE AND LEGAL PROCESS (1985), THE LEGAL PROFESSION IN INDIA (1983), and LEGAL EDUCATION IN INDIA (1982).

David B. Oppenheimer, Associate Professor of Law
Golden Gate University
B.A. University Without Walls, Berkeley (1972); J.D. Harvard Law School (1978).

He clerked for Chief Justice Rose Bird of the California Supreme Court, practiced employment discrimination law for ten years, first as a government prosecutor, then as a law school clinic director at the University of California (Boalt Hall) and the University of San Francisco, before joining the faculty at Golden Gate University in 1991. He was a principal spokesperson for the Campaign to Defeat Proposition 209, and is a project leader in the Society of American Law Teachers' Activist Campaign in support of affirmative action. His publications include Understanding Affirmative Action, 23 HASTINGS CONST. L.Q. 926 (1996), Negligent Discrimination, 141 U. PA. L. REV. 899 (1993), and Distinguishing Five Models of Affirmative Action, 4 BERKELEY WOMEN'S L.J. 42 (1989).

Sunita Parikh, Assistant Professor
Washington University Department of Political Science
B.A. University of Chicago (1982); M.A. University of Chicago (1982); Ph.D. University of Chicago (1990).

She previously taught at Columbia University. She has been a Spencer Fellow of the National Academy of Education and a Peace Fellow of the Hoover Institution, Stanford University. Her publications include THE POLITICS OF PREFERENCE: DEMOCRATIC INSTITUTIONS AND AFFIRMATIVE ACTION IN THE UNITED STATES AND INDIA (1997), A Comparative Theory of Federalism: India (forthcoming, UNIV. VA. L. REV.) (with Barry Weingast), and The Supreme Court, Civil Rights, and Preference Policies, 92 TEACHERS COLLEGE REC. 192 (1990).

Aaron Porter, Assistant Professor, Sociology Department and Afro-American Studies
University of Illinois, Urbana/Champaign
B.A. Bloomsburg University (1985); M.A. University of Pennsylvania (1987); Ph.D. University of Pennsylvania (1993).

He has also taught at the University of Florida, Indiana University, and University of Pennsylvania. Much of his research has focused on racial relations and the American legal process and has been supported by the Ford Foundation, the American Bar Foundation, and the John D. and Catherine T. MacArthur Foundation. In 1989 he received a commendation from Pennsylvania Governor Robert Casey for development of a state-wide youth development model and for his community leadership in Philadelphia=s war on drugs. His publications include Opening Doors: The Influence of Philadelphia=s Stellar Law Firm (forthcoming), Bibliographic Essay: White Racism, CHOICE (Feb. 1996) (with J. Feagin), and Affirmative Action and African Americans: Practice and Rhetoric, 21 HUMBOLDT J. OF SOC. RELATIONS No. 2 (1995) (with J. Feagin).

Karen Andrea Porter, Associate Professor of Law
Washington University
B.A. Yale University (1986); J.D. Yale Law School (1990).

From 1989-93 she was a senior policy analyst and staff counsel to the National Commission on AIDS. Prior to joining Washington University she was an assistant professor at the Albert Einstein College of Medicine, Yeshiva University, specializing in bioethics. Her publications include HIV/AIDS in African American Communities, in P.T. Cohen, et al. eds., THE AIDS KNOWLEDGE BASE (1994), THE CHALLENGE OF HIV/AIDS IN COMMUNITIES OF COLOR, National Commission on AIDS (1992), and HIV IN CORRECTIONAL FACILITIES, National Commission on Aids (1990).

B.P. Jeevan Reddy, Justice Indian Supreme Court (Retired)

The Honorable Jeevan Reddy served as Justice of the Indian Supreme Court from 1990-1997, during which time he authored numerous leading decisions, including the majority opinion of the Court in Indra Sawhney v. Union of India (The Mandal Commission Case) (1992) authoritatively interpreting Article 16 of the Indian Constitution which authorizes the reservation of public employment posts for members of backward classes. He previously served as Chief Justice of the Uttar Pradesh High Court and as a Judge of the Andhra Pradesh High Court.

Michael Selmi, Associate Professor of Law
George Washington University
A.B. Stanford University (1983); J.D. Harvard Law School (1987).

Prior to entering teaching, he clerked for Chief Judge James Browning of the 9th Circuit Court of Appeals and was an attorney in the Civil Rights Division at the United States Justice Department and with the Lawyers' Committee for Civil Rights Under Law. He teaches Civil Rights Legislation, Constitutional Law and Employment Law. His publications include Testing For Equality: Merit, Efficiency & the Affirmative Action Debate, 42 UCLA L. REV. 1251 (1995), The Value of the EEOC, 57 OHIO ST. L.J. 1 (1996), and Proving Intentional Discrimination: the Reality of Supreme Court Rhetoric, forthcoming in GEO. L.J.

M.N. Srinivas, J.R.D. Tata Professor
National Institute of Advanced Studies, India.
M.A. University of Bombay; LL.B. University of Bombay; D. Phil. University of Oxford.

He has served as Chairman of the Institute for Social and Economic Change in India and as Chair of the Department of Sociology, Delhi University. He has been a visiting professor at Oxford University, Cornell University, the University of California, Stanford University, the University of Singapore, the Australian National University, and Cambridge University. His publications include CASTE: ITS 20TH CENTURY AVATAR (1996), VILLAGE, CASTE, GENDER AND METHOD (1996), and INDIAN SOCIAL STRUCTURE (1980).

Faith Pansy Tlakula, Commissioner
South African Human Rights Commission.
B. Proc. University of the North; LL.B. University of the Witwatersrand; LL.M. Harvard University.

She is the Former Executive Director, Black Lawyers Association--Legal Education Centre and was a Senior Lecturer in Law, University of the North-West (formerly Bophuthatswana). She is an admitted Advocate of the Supreme Court of South Africa. She is a Member of the Council for The University of the North-West; the Deputy-Chairperson of the National Institute for Public Interest Law and Research; and a Member of the Board of Directors, Centre for Applied Legal Studies, University of the Witwatersrand. In 1988 she was awarded a Harvard Fellowship, and in 1995 she was named by Tribute Magazine as one of the Top 100 Black Achievers in South Africa.

Karen Tokarz, Professor of Law and Director of Clinical Education
Washington University
B.A. Webster College (1970); J.D. Saint Louis University (1976); LL.M. University of California, Berkeley (1985).

She teaches Employment Discrimination, Employment Law and Public Policy Clinic and Alternative Dispute Resolution. She mediates federal employment discrimination and civil rights cases. She served as the co-reporter for the Missouri Gender and Justice Task Force. Her publications include ELDERLAW: ADVOCACY FOR THE AGING (West 1993, Supp. 1997), A Tribute to Judge Theodore McMillian: A Man of Law and Justice, 52 WASH. U. J. URB. CONTEMP. L. 1 (1997), and Women Judges and Merit Selection Under the Missouri Plan, 64 WASH. U. L.Q. 905 (1987).

Gerald Torres, H.O. Head Centennial Professor of Real Property Law
University of Texas
B.A. Stanford University (1974); J.D. Yale Law School (1977); LL.M. University of Michigan (1980).

He was previously Professor of Law and Associate Dean at the University of Minnesota Law School and also served in the U.S. Department of Justice, first as Deputy Assistant Attorney General for Environment and Natural Resources and then as Counsel to Attorney General Janet Reno. In those roles he had principal responsibility for advising the Attorney General on issues of environmental policy and law, and on issues affecting Native Americans. His publications include Environmental Justice: The Legal Meaning of a Social Movement, 15 J.L. & COM. 597 (1996), Understanding Environmental Racism, 63 UNIV. COLO. L. REV. 839 (1992), and Critical Race Theory: The Decline of the Universalist Ideal and the Hope of Plural Justice, 75 MINN. L. REV. 993 (1991).

TABLE OF CONTENTS TO CONFERENCE MATERIALS^[*]

1. CONFERENCE INFORMATION
   1. Preliminary Agenda
   2. Biographies of Conference Participants

2. INDIA
   1. Cunningham & Menon, Seeking Equality in Multicultural Societies (Discussion draft prepared specifically for the conference)
   2. Appendices to Cunningham & Menon
      1. Excerpts from Indian Constitution
      2. Speech by Dr. Ambedkar during debates on adopting the Constitution
      3. Survey form used by Mandal Commission
      4. Excerpts from Justice Reddy's opinion in Union of India v. Sawhney
      5. Government of India Rules for Defining "Creamy Layer" to be Excluded from Reservations
      6. History of Texas Law School Case
      7. History of Racial Classifications in Louisiana (summarized from Dominguez)
      8. Simplified Example of Lundberg & Startz Model of Intergenerational Transmission of Inequality
   3. Srinivas, The Pangs of Change (reprinted from FRONTLINE, August 22, 1997)
   4. Srinivas, Caste: A Systemic Change
   5. Reddy, Equality and Social Justice (Discussion draft prepared specifically for the conference)
   6. PARIKH, THE POLITICS OF PREFERENCE (excerpts from Chapter 1, Introduction and Chapter 8, Conclusion)

3. SOUTH AFRICA
   1. Selected Provisions of the South African Constitution
   2. K. Govender, Equality--The South African Perspective (Discussion draft prepared specifically for the conference)
   3. Motala v University of Natal, 3 BCLR 374 (S. Ct. Durban & Coast Div. 1995) (challenge by unsuccessful Indian applicant to medical school preferences for Africans)
   4. 4. President v. Hugo, 6 BCLR 708 (Const. Ct.) (18 April 1997) (edited) (challenge by male prisoners with children to presidential decree providing early release to female prisoners with children)
   5. Galanter, The Structure and Operation of an Affirmative Action Programme: An Outline of Choices and Problems (paper prepared for presentation at Affirmative Action in New South Africa, a conference convened by the Constitutional Committee of the African National Congress in October 1991).

4. RESUMES OF CONFERENCE PARTICIPANTS

 

OPENING REMARKS BY CLARK D. CUNNINGHAM, PROFESSOR OF LAW, WASHINGTON UNIVERSITY SCHOOL OF LAW

Saturday, November 8, 1997

In writing newspaper stories, journalists typically address four questions: what, why, when, and where? I will use the same format to welcome you to this conference and to give you a brief explanation of what we plan to do for the next three days.

A. When

Although public debate in the United States over the problem of inequality has been lively and intense for the last two years, the past seven days have seen a remarkable convergence of events. On Monday, the Supreme Court decided that it would not review the decision by the Court of Appeals for the Ninth Circuit allowing Proposition 209 to take effect in California.^[1] Last Tuesday, the City of Houston rejected a provision similar to California's Proposition 209 in a referendum vote.^[2] On Thursday the House Representatives announced that it would delay any debate of, or vote on, proposed legislation to cut back on affirmative action until next session.^[3] The same day, the Senate Judiciary Committee delayed the controversial nomination of Bill Lee to head the Civil Rights Division of the Justice Department for another week.^[4] The Republican majority of the Senate Judiciary Committee opposes Lee's nomination largely because of his support for various forms of affirmative action as an attorney for the National Association for the Advancement of Colored People. Time carried this week a story on a recent federal suit challenging affirmative action admission policies at the University of Michigan.^[5] And today's New York Times carries the following stories: Colleges Look for Answers to Racial Gaps in Testing,^[6] Racism is (a) entrenched? Or (b) fading?,^[7] and as the lead editorial, Multiracial Americans.^[8]

B. Where

It may be obvious that this conference is well-timed; but is it equally well-situated? St. Louis has always been one of the great crossroads of America, indeed the world. A few miles east of where I now stand is a United Nations World Heritage site known as the Cahokia Mounds. These monumental mounds mark the site of the largest pre-Columbian city north of Mexico. This huge trading center and ceremonial site thrived for centuries. St. Louis was later founded by French traders because it was centrally located near the intersection of the two most important river systems, the Mississippi and the Missouri. In the nineteenth century, St. Louis became the gathering point for pioneers coming from the north, east, and south to launch their overland trips to the west. And the 1904 World's Fair here in St. Louis is believed by many, including all in St. Louis, to be the greatest of all of the world's fairs.

St. Louis is not just a crossroads, however. It is also a place where boundaries meet. In 1803, the border of the United States was the Mississippi River immediately to our east. The expansion of the United States past that border, eventually to the Pacific Ocean, is marked by the famous Gateway Arch, which has become the symbol of St. Louis. St. Louis is not only the place where east and west are marked; it is also the point where north and south meet. Under the terms of the Missouri Compromise, Missouri was considered a slave state prior to the Civil War, and thus was part of the Old South. Furthermore, during that time, St. Louis was one of the most important stops on what was known as the "Underground Railroad," used to smuggle the slaves from the South into free states like Illinois. But when the Civil War began, Missouri remained part of the Union.

Perhaps the most important, and infamous, decision of the United States Supreme Court on the issue of inequality, the Court's 1856 decision in Dred Scott v. Sandford,^[9] was initiated in federal court here in St. Louis. Dred Scott, born a slave, filed suit in federal court seeking his freedom based on trips that he and his master took into free states such as Illinois. His claims were denied by the Supreme Court on various grounds, most notably that Dred Scott, as a descendant of Africans, could not be considered a "person" for purposes of invoking the jurisdiction of the federal courts.

More recent suits seeking equality have faired better in St. Louis. The landmark Supreme Court decision in Shelley v. Kramer in 1948 struck down restrictive deeds in St. Louis that prohibited African Americans from buying homes.^[10] In 1973 one of the most important employment discrimination cases was decided by the Supreme Court, McDonnell Douglas Corp. v. Green; it also originated in St. Louis.^[11] And as reflected on the front page of today's local newspaper, The St. Louis Post-Dispatch, St. Louis is also the site of the country's most ambitious and expensive voluntary school desegregation program.^[12]

This brief history of St. Louis highlights the fact that a place where roads cross and boundaries meet is an exciting place to be. It is also a challenging and dangerous place to be. This conference marks a place where two other kinds of boundaries meet, the boundaries between nations and the boundaries between disciplines. We believe that the difficult and indeed dangerous problem of confronting the effects of past discrimination in preventing continuing inequality needs to be addressed by crossing over both national and disciplinary boundaries.

C. Why

Answering the questions of "when" and "where" naturally brings me to answering the question "why." To expand upon my answer to, "why this Conference? " I turn to the biographies of my two distinguished co-chairs: Dr. N. R. Madhava Menon, former Dean of the National Law School of India, and Professor Marc Galanter, Director of the Institute for Legal Studies at the University of Wisconsin.

Several years ago Dr. Menon was awarded the title "living legend of the law" by the International Bar Association. That title is, in fact, no exaggeration. Among his many notable achievements, the most outstanding is his leadership in founding and directing the National Law School of India, located in Bangalore. Although this school is less than a decade old, it is already the premier law school in India and has gained world-wide recognition, particularly for its innovative five-year curriculum that combines the study of the social sciences with law. Dr. Menon's leadership has extended well beyond India; he has just completed a three-year term as President of the Commonwealth Legal Education Association, representing law schools in the almost fifty nations of the commonwealth. A year and a half ago we had the privilege here at Washington University of having Dr. Menon teach a course on comparative constitutional law. Several weeks of the course were devoted to comparing Indian and American constitutional law specifically on the subject of equality. That course was the impetus for this conference.

When Dr. Menon and I developed the idea for the conference, he said that we must recruit our mutual friend Marc Galanter to be the third co-chair. Marc Galanter's biography is living proof why comparative and inter-disciplinary work go hand-in-hand. His seminal article, Why The "Haves" Come Out Ahead: Speculations on the Limits of Legal Change^[13] is the most frequently cited article in the law and society field,^[14] and he has served both as President of the Law and Society Association and Editor of the Law and Society Review. Marc was brought to inter-disciplinary work by his first passion, the study of India. Immediately after completing law school, he went to India to study the abolition of untouchability under the new Indian constitution. His research ultimately led to his monumental book, Competing Equalities: Law and the Backward Classes in India,^[15] which is still the leading work on the subject of India's constitutionally mandated programs for addressing the continuing effects of the caste system.

The three of us then sought to bring the best people we could identify from India and South Africa to the United States for this conference. Within the field of law, we were honored that Justice Jeevan Reddy accepted our invitation. Justice Reddy, recently retired from the Indian Supreme Court, is the author of the leading Supreme Court decision on the subject. For Americans, the analogy would be perhaps if Justice O'Connor would agree to participate in an academic conference on affirmative action two months after retiring from the U.S. Supreme Court. And from the social sciences, we were delighted that Professor M. N. Srinivas agreed to come. Professor Srinivas was the pre-eminent sociologist of his generation in India, and is undoubtedly the leading expert in the world on the caste system.

We had similar success in inviting participants from South Africa. With us today is Professor Karthy Govender, head of the Public Law Department at the University of Natal-Durbin. Professor Govender is both a leading constitutional law scholar and an active litigator before the Constitutional Court of South Africa. He also serves on the South African Human Rights Commission. After Professor Govender accepted our invitation, we asked him to select an ideal person to serve as the second participant from South Africa. He advised us to make every effort to get Pansy Tlakula to participate, and to our delight, she agreed to do so. Pansy Tlakula is the former chair of the Black Lawyers Association of South Africa's Legal Education Centre and is currently a full-time member of the South African Human Rights Commission.

We followed a similar strategy of asking the experts for their "dream team" of conference participants in seeking social scientists form the United States. I asked my colleague, Richard Fox, in the Anthropology Department. He said the perfect person is Virginia Dominguez, if you could get her; with Dick Fox's help, we did get her. And looking for an expert from psychology, I asked Jim Wertsch, chair of our Education Department, and Alan Lambert in our Psychology Department. They said the seminal work on stereotype threat is being done by Claude Steele at Stanford and Joshua Aronson at Texas; both accepted our invitation, although Claude Steele was unable to attend for personal reasons.^[16] Robert Pollak, in our Economics Department advised us to invite Glenn Loury from Boston University; and we are privileged to have him as a participant as well.

Rounding out the roster of conference participants is a combination of outstanding senior and rising stars in U.S. legal scholarship.

D. What

By now many of you who have asked us what kind of conference is this at which no papers are scheduled to be presented?^[17] Our answer is that we hope this will be an academic conference marked by intense and collegial exchange of ideas, across the national and disciplinary boundaries that are so often formidable. To that end we have avoided entirely the traditional format of talking heads at a front table and passive listeners for today and tomorrow. We also want to emphasize that this conference is not intended in any way to take a position on the merits of affirmative action either in the United States, or as to comparable versions in other countries. Our goal today and tomorrow is to promote maximum informality and candor: brainstorming, where all ideas are offered without criticism. The challenge, though, is how not to lose the ideas we expect will precipitate out of these intellectual storms. Our answer is a reporter system where graduate students will take detailed notes in each room. These notes will be circulated only to persons who were in the room for the discussion. Participants will be free to delete, edit, or clarify anything in the reporter's notes; the edited notes will be circulated as conference proceedings only after all have approved.

You will see that we have assigned each of you to various small groups. As much as possible, these assignments reflect the preferences you indicated in advance of the conference, and represent roughly equal numbers in each group. This afternoon there will be two large concurrent sections, one discussing India and the other South Africa. The two rooms are adjacent to each other, and after the first hour you should feel free to move to the other room, especially if you come with questions about both India and South Africa. We will compare notes from these two concurrent sessions in a closing plenary at 4:00 p.m. today.

Tomorrow is when we expect that the real brainstorming will take place. As you can see, there are three concurrent sessions in the morning and another set of three in the afternoon. On Monday we will revert to a more formal format, with concurrent panel discussions open to the public. These panel discussions will be videotaped and transcribed; an edited version will be published in a forthcoming issue of the Washington University Law Quarterly.^[18] During these panel discussions each conferee will have ten minutes to use as he or she pleases.^[19] We hope that this time will be used to propose totally new ideas for a research agenda. There is time allowed in each session on Monday for interaction among the panelists, other conferees and the public. Marc Galanter, Madhava Menon, and I will each attend one of the panels, compare notes over lunch Monday, and report a summary to you at the closing plenary on Monday afternoon.

---

[*] The following Table of Contents appeared at the beginning of a set of materials prepared specifically for the Rethinking Equality in the Global Society Conference and distributed to the participants in advance. These materials were not formally presented at the conference but were assumed to form a common basis of knowledge for conference discussions. Many of the materials listed can be found on the Equality Conference Web Site: http://ls.wustl.edu/Conferences/Equality.

[1.] See Coalition for Economic Equity v. Wilson, 110 F.3d 1431 (9th Cir.), cert. denied, 118 S. Ct. 397 (1997). Proposition 209, formally known as the California Civil Rights Initiative, will have the result of banning most forms of conventional affirmative action based on race, ethnicity, or gender in state-funded employment and higher education. See 110 F.3d at 1434.

[2.] See Sam Verhovek, Houston Vote Underlined Complexity of Rights Issue, N.Y. TIMES, Nov. 6, 1997, at A1. See also Editorial, Affirmative Action in Play, N.Y. TIMES, Nov. 6, 1997, at A26.

[3.] See Lizette Alvarez, House Panel Delays Till Next Year Measure to End Affirmative Action, N.Y. TIMES, Nov. 7, 1997, at A10.

[4.] See Steven A. Holmes, Backers of Rights Nominee Delay Vote, N.Y. TIMES, Nov. 7, 1997, at A10. See also Steven A. Holmes, Champion for Minorities Finds Himself an Underdog, N.Y. TIMES, Nov. 6, 1997, at A1.

[5.] See Adam Cohen, The Great Battle Over Affirmative Action: A Lawsuit Against the University of Michigan Could End Racial Preferences in College Admissions, TIME, Nov. 10, 1997, at 52.

[6.] Ethan Bronner, Colleges Look for Answers to Racial Gap in Testing, N.Y. TIMES, Nov. 8, 1997, at A1.

[7.] Richard Bernstein, Racism is (a) Entrenched? Or (b) Fading?, N.Y. TIMES, Nov. 8, 1997, at A11.

[8.] Editorial, Multiracial Americans, N.Y. TIMES, Nov. 8, 1997, at A20.

[9.] 60 U.S. 383 (1856).

[10.] See Shelly v. Kramer, 334 U.S. 1 (1948).

[11.] See McDonnell Douglas Corp. v. Green, 414 U.S. 811 (1973).

[12.] This University also has a long history of seeking equality. The University was founded in 1853 as a non-sectarian institution whose charter prohibited discrimination on the basis of religious or political affiliation. Our law school takes pride in being the first chartered law school in the United States to admit women as students. We also were an early leader in admitting African-Americans, graduating our first African-American student soon after the Civil War's end in 1889.

[13.] Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits of Legal Change, 9 L. & SOC'Y REV. 95 (1974).

[14.] In 1983 the Social Sciences Citation Index indicated that this article had been cited in over 155 publications since 1974, making it at that point the most-cited article published in the history of the Law & Society Review. See This Week's Citation Classic, 52 CURRENT CONTENTS, Dec. 26, 1983, at 24.

[15.] MARC GALANTER, COMPETING EQUALITIES: LAW AND THE BACKWARD CLASSES IN INDIA (1984).

[16.] Randall Kennedy, Harvard Law School; Cass Sunstein, University of Chicago Law School; Adrien K. Wing, University of Iowa School of Law; and Christopher Jencks, John F. Kennedy School of Government, Harvard University also accepted conference invitations but for various reasons were unable to attend.

[17.] Several papers were written for the conference and distributed in advance; the titles and authors are listed in the Table of Contents of Conference Materials which appears at pages 1577-78.

[18.] The court reporter's transcript was sent to all Monday panelists by November 25, 1997. The editors thank the panelists, all of whom agreed to review and approve their transcribed comments in time to meet the mid-March 1998 publication deadline for the symposium issue.

[19.] Glenn Loury, Michael Selmi, Cheryl Harris and Ian Ayres, as well as some Washington University faculty members, were unable to participate in the Monday panel discussions.

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