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I analyze the connection of affirmative action to two models of race and racism. I contend that the Supreme Court Justices who continue to support affirmative action adhere to a "prejudice" model in which race is a concept to be overcome and racism is merely a condition of individual ignorance. 13 On the other hand, I posit that Professor Butler's proposals fall within a "white supremacy" model, which looks at race as a historically contingent concept that has been used to subordinate non-white peoples from precolonial times through the present. This historical perspective offers the possibility that the concept of race can be given new meaning to serve as the basis for positive individual and collective identities. Given this paradigmatic and ideological rift, there is little common ground between Professor Butler and the Supreme Court Justices. In Part III, I analyze Professor Butler's six separate proposals to reform the criminal justice system. In doing so, I question whether his proposals can be made to fit within conventional affirmative action jurisprudence. I also highlight how implementation of these proposals, as currently framed, would require a radical expansion of constitutional doctrine. I conclude that his most controversial proposals, those that advocate placing caps not only on the percentage of African Americans who can be arrested and imprisoned for drug offenses, but also on the percentage of African Americans who can be kept in prisons and jails, cannot be supported by current affirmative action jurisprudence. Current case law permits only programs that are narrowly tailored to further a compelling governmental purpose. While diversity has been recognized as a governmental interest in the context of higher education and radio licensing, the only cognizable governmental interest within the criminal context is the elimination of the effects of prior discrimination. Unfortunately, establishing that particular criminal defendants have been discriminated against is a formidable task indeed. In Part IV, I take issue with Professor Butler's singular focus on African American males and suggest that he, and other scholars as well, adopt a cross-gendered and multicultural approach to this type of race-based analysis. Historical racism combined with the economic dynamics from which poverty results are the criminogenic forces that lead disproportionately high numbers of young people to criminal activity; these forces affect Latinos/as, other non-white populations,18 and African Americans - albeit, in non-symmetrical ways. Relying on the work of Tomas Almaguer, I claim that discussions of race constructed within a narrow black/white binary model re-create the very distortions of history and reproduce the exclusion, subordination, and silencing of "Other"-ized non-white groups that lie at the heart of white supremacy.

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University of Colorado Law Review



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Paul Butler, Affirmative Action



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