ABSTRACT
Over the past four decades, nearly all jurisdictions have abandoned public laws and policies that once promoted racial segregation and subordination, and laws such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were passed as remedies for both. Yet now, immigration status has become a primary marker and axis of inequality. In terms of formal racial discrimination, some have gone so far as to say that we live in a “post-racial society,” that racial identity no longer retains the power that it once did to shape life chances, to provide or to inhibit access to economic and social opportunities, and to limit basic political rights. We have an African American President, after all, and the only public laws and policies with respect to race that remain in force today are the ones that intend to benefit people of color. Some have insisted that even those are no longer necessary: opponents of “affirmative action” and other race-conscious policies have said that their opposition arises because they are more committed to principles of race neutrality and racial equality than the proponents of those policies. Law and policy should not favor any particular racial group, they have said, nor should law disadvantage the members of one racial group to help another. In many aspects of public life and public law, no one now embraces race-based rules or laws that disable people based on their racial identity.
