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Frontmatter -- Contents -- Prologue -- 1. Political Race and Magical Realism -- 2. A Critique of Colorblindness -- 3. Race as a Political Space -- 4. Rethinking Conventions of Zero-Sum Power -- 5. Enlisting Race to Resist Hierarchy -- 6. The Problem Democracy Is Supposed to Solve -- 7. Whiteness of a Different Color? -- 8. Watching the Canary -- Notes -- Acknowledgments -- Index

In 1992 had been teaching for four years at the University of Pennsylvania Law School. I taught voting rights and criminal procedure, subjects related to what I had done as a litigator. Preparing for class meant reading many of the same cases I had read preparing for trial. Some were even cases I had tried. Teaching offered me a fresh chance to read those cases with new interest. I could see the subtle linkages between cases that I had not previously noticed. From the distance of the academy, I observed the evolution of the doctrine without feeling overcome by the lawyer's instrumental urge to plumb each case for useful language or helpful analysis of an issue. I found teaching a relatively simple yet interesting task. My goal was to communicate what I knew about the case law to students eager to learn a new doctrinal area, as well as to students getting ready to take the bar exam. A decade later I find teaching more challenging. It is difficult to be clear, I now realize, when cases are informed by an individual judge's intuition rather than any canons of "law." The doctrine, which I formerly felt dexterous in manipulating, now seems crabbed. The legal rules often look like opaque alibis rather than guiding lights. Missing, for me, is a theory of fundamental fairness or a commitment to democracy or even an understanding of justice that is not simply an ordered society. This search for an overarching jurisprudential vision – one that links ideas of justice with ideas of democracy – animates my scholarship and inspires my research interests. This is what I now value. But student concerns have not changed at the same speed as my own. Many students still simply want to do well and pass the bar exam. Competing with their peers, they treat learning as a process of conveying and retaining information. Equally salient is the unquestioned notion that passive forms of information exchange can enable retention of that information over time. They think that what they learn in a classroom matters because it will be remembered three years later when confronted on the bar exam, with a series of multiple-choice questions designed to test their ability to memorize substantive legal doctrines. Or thevjust want good grades. What they learn is less important than what they need to get a job. Not just any job. A well-paying job. Some need to make enough money to pay back their law school loans. Others are greatly tempted by the prospect of making a lot of money for themselves and their clients. About five years ago I became so disillusioned I thought perhaps I was the one who needed to find a new job. I wanted to be part of an environment in which students felt an intellectual excitement about learning. I wanted to teach students who were committed to social justice, not just social advancement. I decided to try teaching graduate students.

We are witnessing a broad-based assault on affirmative action – in the courts, the legislatures, and the media. Opponents have defined affirmative action as a program of racial preferences that threatens fundamental American values of fairness, equality, and democratic opportunity. Opponents successfully depict racial preferences as extraordinary, special, and deviant – a departure from prevailing modes of selection. They also proceed on the assumption that, except for racial or gender preferences, the process of selection for employment or educational opportunity is fair, meritocratic, and functional. Thus, they have positioned affirmative action as unnecessary, unfair, and even un- American. Those of us pursuing the quest of racial and gender justice in a genuinely democratic society face a crucial challenge. How do we respond to this assault on affirmative action? How do we invite a deeper conversation and analysis of selection and admissions conventions in pursuit of fairness? Understandably, much of the response has been reactive. Supporters of affirmative action typically engage the debate on the terms defined by the assault: affirmative action must continue. It is fair. It is still needed to rectify continued exclusion and marginalization in the society.

Affirmative action originated as a plan to correct the historical disadvantage of women and people of color-to make the system more fair. Yet, for over twenty years, it has been repeatedly attacked for being unfair to whites, and even un-American. Guinier and Sturm begin with a critique of affirmative action as it stands now, arguing that a system of selection that determines 'qualification' from test scores and then adds on factors like race and gender doesn't work-either for the people it includes or the people it leaves out. But they go further, asking us to rethink how we evaluate merit. Marshaling lively examples from education and the workplace, they expose the failure of tests to predict success. They provide evidence that people's success depends on the opportunities they have to perform, and that institutions do best when they are open to unanticipated contributions. Offering a model of selection based on performance, not prediction, the authors' reconception of an old ideal suggests at once a smart business practice and a step toward the promise of democratic opportunity. Paul Osterman, Stephen Steinberg, Peter Sacks, and others respond. ; https://scholarship.law.columbia.edu/books/1178/thumbnail.jpg