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WHITE PRIVILEGE AND AFFIRMATIVE ACTION

by Sylvia A. Law*

As we approach the new century, the Nation is at a critical juncture with respect to

race relations and the law. For the past two decades “affirmative action” has been the central mechanism through which we have promoted racial integration, and, at the same time, a central issue of controversy.

Since 1996, many authoritative voices challenge the legitimacy of affirmative efforts to achieve racial integration. The Supreme Court has struck down many affirmative action programs. The Court has not upheld any affirmative action program since 1989, when, by a 5-4 decision, it approved a narrowly targeted Congressional program to encourage minority ownership of broadcast licences.1 In 1996, California voters approved Proposition 209, broadly prohibiting any form of affirmative action on the basis of race or gender. In the same year, in the Hopwood decision, the Fifth Circuit held that the University of Texas could not give any consideration to race in determining admissions to its law school. 2 In November 1998, the First Circuit Court of Appeals held that the affirmative action admission policies of Boston Latin High School were unconstitutional. 3 Before I discuss affirmative action, I would like to put the issues into a new analytic framework, suggested by my title — White Privilege.

I. WHITE PRIVILEGE.

A. The General Concept.

Stephanie Wildman, in her magnificent book PRIVILEGE REVEALED, notes that “The notion of privilege . . . has not been recognized in legal language and doctrine. This failure to acknowledge privilege, to make it visible in legal doctrine, creates a serious gap in legal reasoning, rendering law unable to address issues of systemic unfairness.”4

* Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, NYU Law School. This

was originally presented as The Mansfield Lecture, at The University of Akron School of Law, Jan. 28, 1999. Many people gave me helpful comments and research leads. I am grateful to: Ben Ensminger-Law, Kenneth Huber, Paul Finkelman, Kenneth T. Jackson, Alice Law (my mom who studies the history of our homesteading family), Josh Meisler, John Reid, Michael Schill, and Stephanie Wildman. Adam Wendell, NYU 2000, provided magnificent research help. My assistant, Leslie Jenkins, is an invaluable aid. NYU Law School’s Filomen D’Agostino and Max E. Greenberg Faculty Research Fund provided financial support.

1 Metro Broadcasting, Inc. v. FCC, 497 U.S. 547 (1990). This was one of Justice Brennan’s last decisions and many observers see it as a farewell tribute to him.

2 Hopwood v. State of Texas, 84 F.3d 720 (5th Cir. 1996), cert. denied, 116 S. Ct. 2581 (1996). 3 Wessman v . Gittens, 160 F.3d 790 (1st Cir. 1998). 4 STEPHANIE M. W ILDMAN, PRIVILEGE REVEALED: HOW INVISIBLE PREFERENCE UNDERMINES

AKRON LAW REVIEW [Vol. 32:3

White privilege is the pervasive, structural, and generally invisible assumption that white people define a norm and Black5 people are “other,” dangerous, and inferior. Peggy McIntosh observes that privilege can “take both active forms, which we can see, and embedded forms, which as a member of the dominant group one is taught not to see.”6 Ruth Frankenberg observes: Naming “whiteness” displaces it from the unmarked, unnamed status that is itself an effect of its dominance. Among the effects on white people of race privilege and of the dominance of whiteness are their seeming normativity, their structured invisibility . . . . To speak of whiteness is to assign everyone a place in the relations of racism. . . . [It is more difficult] for white people to say “Whiteness has nothing to do with me — I’m not white” than to say “Racism has nothing to do with me — I’m not a racist.”7

Careful studies show that by the time children are in kindergarten they are aware of race. Both white and Black children attach positive value to whiteness and negative value to Blackness.8 Thus Black parents must do serious work to educate their children to deal with daily acts of racism that they will experience. We white parents experience much greater discretion in deciding whether and how to guide our children in relation to race.

When people are asked to describe themselves in a few words, Black people invariably note their race and white people almost never do.9 Surveys tell us that virtually all Black people notice the importance of race several times a day. White people rarely contemplate the fact of our whiteness — it is the norm, the given.10 It is a privilege to not have to think about race.

The concept of white privilege, even if powerful and true, is so general that a reasonable person could fail to understand it. Indeed, reasonable people could question the sanity of someone who asserts the power of “invisible forces” shaping our civil life.

Concrete stories may help to make white privilege visible. All of my stories are personally embarrassing. I am more sensitive and politically correct on race issues than

AMERICA 8 (1996).

5 This capitalization choice is conscious. See id. at 4-6. 6 Peggy McIntosh, White Privilege: Unpacking the Invisible Knapsack , INDEPENDENT

SCHOOL (Winter 1990). 7 RUTH FRANKENBERG, THE SOCIAL CONSTRUCTION OF WHITENESS 6 (1993).

8 FRANCES E. KENDALL, DIVERSITY IN THE CLASSROOM: A MULTI CULTURAL APPROACH TO THE EDUCATION OF YOUNG CHILDREN 19-21 (1983).

9 Angela P. Ha rris, Race and Essentialism in Feminist Legal Theory, 42 STAN. L. REV. 581, 604 (1990).

10 See Martha A. Mahoney, Segregation, Whiteness, and Transformation, 143 U. PA. L. REV. 1659, 1662-67 (1995).

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION many white people. I have been active in the civil rights movement since the early 1960s. I was jailed in Yellow Springs, Ohio in 1964, in a struggle to desegregate the local barber shop. Charges against me are still pending, at least theoretically. I try to avoid being a racist or discriminating on the basis of race. But I do enjoy white privilege. And I suspect that I notice it in a small fraction of the cases in which it occurs. B. Examples of White Privilege: Mobility.

1. Taxi Cabs.

Whites are systematically more mobile than Blacks. That difference is largely invisible to white people. Taxi cabs are emblematic of white privilege. 11 Taxi’s don’t pick up Black people. I live in downtown Manhattan. Over the years, I have often said to a Black guest, “Let me walk you to the street and help you catch a cab.” These are well dressed, middle-aged, professional people. Especially late at night, no one ever declines my offer. Cabbies don’t like to pick up Black people.

Recently I was uptown, late on a cold night, with lots of bags. I walked to Central Park West to catch a cab. A well dressed Black couple was on the corner seeking a taxi. In accordance with City etiquette, they moved a half block up the street to get the first available cab. I understood that they were entitled to the first, and I to the next. A taxi came, drove right by them and pulled up next to me.

I could have held the door, yelled to them to come, and given them the cab. I could have taken the cabbie’s number and reported him to the Taxi and Limousine Commission. I could have discussed his inappropriate behavior with him. I did nothing. The driver’s behavior was not a matter of individual preference or taste. His action was illegal. Since Rosa Parks refused to sit at the back of the bus, and Congress passed the Civil Rights Act of 1964, it has been illegal for common carriers, including taxis to discriminate on the basis of race. 12 Nonetheless this happens all the time in New York City and everyone knows it. Our mayor, Rudolph Giuliani, is widely known as a man with zero tolerance for quality of life offenses. Aggressive law enforcement has rid the City of squeegee men and loud radios.13 But there has been absolutely no

11 CORNELL WEST, RACE MATTERS xiv-xv (1993). West explains how, despite being

dressed in a business suit en route to an important meeting, he was unable to hail any one of many empty taxis. Id.

12 See Civil Rights Act of 1964, 42 U.S.C. §2000a (1998). Some state statutes actually specify that taxis are a public accommodation. See, e.g., Totem Taxi, Inc. v. New York State Human Rights Appeal Board, 480 N.E.2d 1075 (N.Y. 1985) (taxis are public accommodations under the New York State civil rights law); MINN. STAT . ANN. §363.03, Subdivision 3 (1998).

13 See e.g., Mike Allen, Giuliani to Ban Food Vendors on 144 Blocks, N.Y. TIMES, May 24, 1998, at A27.

AKRON LAW REVIEW [Vol. 32:3 effort to enforce the anti-discrimination laws against taxi drivers.

Catching a cab in New York is a fine art form. Whites enjoy a serious privilege over Blacks. Most whites do not even notice. And those that do sometimes just take the privilege, as I did that night.

2. DWB or driving while black.

Driving presents another vivid example of white privilege. A couple of years ago my then teen-age son drove across the country with his teen friends. He had a long pony tail and drove a four-wheel-drive Yuppie van, with New York plates. In Iowa, he got pulled over in the middle of the night, driving 20 miles an hour over the speed limit. He told me with glee and pride how he had talked his way out of a ticket. I congratulated him. He observed that he had learned with the master. That would be me.

I have never been pulled over unless I have done something pretty egregiously wrong–speeding, running a “yellow” light that had long since turned red. And usually, like my son, I talk my way out of these encounters. When I get in the car, I know that if I obey the law, I will not be stopped. If I am stopped, I can usually avoid a ticket, with deference, charm and ditziness. Most white people can tell wonderful, funny, imaginative stories about how we danced out of a legitimate traffic tickets.

That is white privilege. A growing scholarly and academic literature documents the phenomena of DWB, or driving while black.14 These studies suggest that when Blacks — especially men and young people — get behind the wheel, they can expect to be stopped, even if they obey the lights and the speed limits. A recent decision by a federal district court in Massachusetts recognized the reality of DWB. 15 In this case, the defendant was a middle aged Black man. He had a twenty-year history of steady employment and responsible, loving relations with an immediate and extended family. He was in the back seat of a car that was pulled over by the police. They found a weapon next to him on the seat and charged him with the serious federal crime of being a Felon in Possession of a Firearm. He did not challenge the basic charge. But under the Federal Sentencing Guidelines, federal judges are required to impose much more serious sentences if a defendant has a history of prior convictions. The judge noted that four of his prior convictions involved traffic violations many years earlier. In each case he had been pulled over by the police, even though, as the court observed, “not one charge involved driving erratically, or violating a traffic law.” Rather, after he was pulled over, officers found some defect in his car registration or insurance papers. For

14 Tracy Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333, 341-52 (1998);

Christopher Hall, Challenging Selective Enforcement of Traffic Regulations After the Disharmonic Convergence: Whren v. United States , United States v. Armstrong and the Evolution of Police Discretion, 76 TEX. L. REV. 1083, 1088 (1998).

15 United States v. Leviner, 31 F. Supp. 2d 23 (D. Mass. 1998).

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION these paper infractions, on four occasions he was charged with a felony and sentenced to 10 days to 6 months in jail, with the sentence always suspended. The Federal Judge in Massachusetts, recognizing the phenomena of DWB, refused to allow these prior convictions to be used to impose a very harsh sentence.

In my career as a sometimes excessive driver, I have also had the occasional paperwork problem. The inspection sticker is out of date. The current insurance card or registration is in the other purse or in my office. In my experience, the normal legal rule is that if you have legal papers some place, you mail them in and there is no problem. Felony charges!? Jail terms, even if suspended?! No way!

This is white privilege. The embarrassing part of the story is that I did not notice it. During all the years in which I taught my son, by example, to talk his way out of perfectly legitimate traffic tickets, I never asked, “Honey, do you appreciate that whiteness is the sine qua non of our ability to do this.” I never asked him and I never really noticed it myself. C. More Examples of White Privilege: Home Ownership.

For most Americans, home ownership is our most important source of wealth. Home ownership is at the heart of the American Dream. It has a profound impact on inter-generational opportunity.

Our Founders understood that owning secure and productive property was a key foundation to the freedom and independence necessary to responsible citizenship and the exercise of all other liberties. The federal constitution allowed states to limit the franchise to property holders, and all states did so.16 Today, after enormous historic struggle, the right to vote is not limited to white, male property owners. Further, “property” now takes many forms — a license to practice law or medicine, taxi medallions, pensions, Social Security and so forth.17 Nonetheless, home ownership remains a matter of core importance. Whether or not we, our parents, or our grandparents owned property matters. It matters to our children and grandchildren. In 1999, at every income level, vastly more white people own homes than Blacks.18

There are many reasons for this, but two big public moments in the past century go far to explain who owns a home and who doesn’t. The first moment is the settling of the Midwest and the west at the end of the 19th and beginning of the 20th century. The second is the great housing boom at the end of World War II.

16

JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHTS 47 (1992). 17 Charles Reich, The New Property, 73 YALE L.J. 733, 734-37 (1964). 18 MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW

PERSPECTIVE ON RACIAL INEQUALITY 109 (1995).

AKRON LAW REVIEW [Vol. 32:3 1. Settling the Great Plains and West.

I grew up in the 1950s in Minnesota, the Dakota’s and Montana. The land of Fargo

and Garrison Keilor. No Black people lived there then and there are few now.19 Everyone understood that the old money, the elders of the community, all came from the federal homestead program. Swedes, Norwegians, Germans. Virtually all the colleges and universities were federal land grant programs. We knew that the federal government had passed this wealth to the people who stepped up to claim it, and who would work the land.

The embarrassing part of this story is that it was not a few years ago that I asked, “Why were all the homesteaders white? Why were all the land grant colleges white? How did this vast area of our country, settled through federal largess, become all white?” I began asking friends, serious historians and legal scholars, to tell me why this vast area of our Nation that I know best is virtually all white. Most did not know. Some offered explanations that struck me as racist. “Blacks don’t like cold weather.” Most Nordics do not regard the cold as an affirmative good. “Blacks had deep attachments to their local communities.” But in the post Civil War South these were communities of profound violence and economic exploitation. There is very little in the legal literature on the racial dynamic of the settlement of the United States.20 Indeed, I have found only one book, Nell Irvin Painter, Exodusters: Black Migration to Kansas after Reconstruction, that discusses the issue. The reviews suggest that this study is unique.21 After the Indian Wars, in the mid-nineteenth century, people living in the Midwest sought the help of the federal government to give them legal title to land. Proposed

19 In 1950. African-Americans made up less than 0.1 percent of the population of North and South Dakota, and 0.2 percent of Montana. See U.S. BUREAU OF THE CENSUS , U.S. CENSUS OF POPULATION 1950, VOL. II: CHARACTERISTICS OF THE POPULATION 1-106 (1950). In 1990, African-Americans made up 0.6 percent of North Dakota, 0.5 percent of South Dakota, and 0.3 percent of Montana. See U.S. BUREAU OF THE CENSUS , CHARACTERISTICS OF THE BLACK POPULATION 1990 at 1 (1990).

20 But see Phyliss Craig-Taylor, To Be Free: Liberty, Citizenship, Property and Race, 14 HARV. BLACKLETTER J. 45 (1998). Craig-Taylor assumes that Black people did not benefit from homesteading because by 1870 “the most significant period of public land divestiture in the history of the United States” was over. Id. at 57. Homesteading continued for another 60 years. See also Rev. Jessie L. Jackson, Sr., America: Our Past, Present, and Possibilities, 31 LOY. L.A. L. REV. 1339, 1340 (1998).

21 David H. Donald, North To Home: Exodusters, N. Y. TIMES BOOK REVIEW, Jan. 30, 1977, at 7. “What makes this book so important, is. . . [that it] is the first full-length scholarly study of this migration and of the forces that produced it. . . .” Id. William Hair, Exodusters: Black Migration to Kansas After Reconstruction, 82 AMER. HIST. REV. 1079 (1977). The American Historical Review said this issue has “been undeservedly ignored. Id. Nell Irvin Painter has produced a book which rescues the Exodusters from obscurity . . . .” Id.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION federal Homestead legislation was opposed by Southern legislators, “fearing development of non-slave states.”22 When the Southern states seceded from the Union, the Republicans responded to the claims for legal title. In the midst of the Civil War, they passed the Homestead Act of 1862.23 The Act gave any person over age 21 or a head of household, who was a citizen or intends to become one, the opportunity to claim ownership of 100 acres of land. From a modern perspective, it is interesting that the Act gave these rights to both citizens and those who intended to become citizens. To own the land, the homesteader had to live there for five years and make improvements to the property.

Why were all the homesteaders white? When the legislation was first enacted in 1862 Black people were not citizens, but rather property. So, it is not surprising that Black people did not become homesteaders at that time. But the Homesteading program continued until 1934.24 Minnesota was the major homesteading state in the years immediately following the Emancipation Proclamation. Kansas and Nebraska lead homesteading in 1869-1879, and the Dakotas in the 1880s. Overall, the peak years for homesteading were: 1871, 1880 and 1902.25 All these years are after the end of the Civil War.

At the end of the Civil War, abolitionists and Republicans were concerned about the economic situation of freed slaves. They believed that land ownership was the key to independence. However, no one encouraged freed slaves, experienced agricultural workers, to claim the 100 acre homesteads in the Midwest and the West. Rather, in 1866 Congress passed the Southern Homestead Act to give citizens loyal to the union, including former slaves, the opportunity to claim 40 acres of land in Mississippi, Arkansas, Louisiana and Florida.26 Most of the land available to the Southern homesteaders was very poor. White southern land owners fiercely resisted federal efforts to give land, even poor land, to former slaves. Rather, the Southern plantation owners favored the share cropping system under which former slaves paid rent, worked the land, and were always in debt to their former masters.27 The Southern Homestead Act was repealed ten years later in 1876.28

By 1876, former slaves appreciated that the share cropping system perpetuated the

22 Merrill G. Burlingame, Montana, 19 ENCYCLOPEDIA AMERICANA 395 (1995). 23 12 Stat. 392 (1862). 24 The Taylor Grazing Act of 1934 ended homesteading in the continental United States,

but continued it in Alaska. 14 ENCYCLOPEDIA AMERICANA 330 (1995). NELL IRVIN PAINTER, EXODUSTERS : BLACK MIGRATION TO KANSAS AFTER RECONSTRUCTION 255 (1976).

25 By the 20th century, most of the good farming land was taken. In 1904 the Kincaid Act allowed homesteads of 320 acres on dry lands. 14 ENCYCLOPEDIA AMERICANA 330 (1995).

26 14 Stat. 66 (1866). See also Jackson, supra note 20 at 1340. 27 Painter, supra note 24, at 54-70. 28 19 Stat. 72 (1876).

AKRON LAW REVIEW [Vol. 32:3 economic arrangements of slavery and that the laws and dominant social attitudes of the white South made it unlikely that they could acquire the property that they saw as necessary to independence. In 1877, 3,000 Black people, purporting to represent 29,000 former slaves, petitioned the President asking for help in finding land, either on the frontier or in Africa.29 From 1877-1879, many Southern Blacks explored the possibility of emigrating to Africa, principally to Liberia, and some did so.30 Beginning in 1877, a small number of Blacks from the Confederate states migrated to Kansas, and particularly to Nicodemus, in Graham County.31 By 1880, the total Black population of Nicodemus was 700.32 The settlement fared poorly during the winter of 1877-78, because they arrived too late to plant a crop and had few horses or mules.33 But, “[n]ew settlers and a fresh growing season saved the Nicodemus colonists from the worst of their wants. By the next harvest they were on their feet again.”34 The most fortunate of the Nicodemus settlers accumulated enough money to rent or buy farms. “The less fortunate — and in 1880 these outnumbered the former — remained in towns.”35

This small, marginally successful, community of Black people settling in the frontier, inspired a variety of southern Black people to think of migration to the frontier. Kansas had a particular attraction for Black people. As Painter explains:

Kansas represented something that Nebraska and the Dakotas did not. To make Kansas a Free State, blood flowed freely during the 1850s. It was the quintessential Free State, the land of John Brown, “a free state in which a colored man can enjoy his freedom.” . . . Now, Kansas made no special appeal to attract Black migrants; it offered them no special inducements. But old abolitionist, temperance Republicans ruled the state, and they held out precis ely the same welcome to Black settlers as to white. This even-handed sense of fair play amounted to an open-armed welcome, in comparison to much of the rest of the country at the time.36

But more important than the affirmative attraction of Kansas, or any other frontier

state, Blacks in the South in the 1870s were driven to leave by “terrorism and poverty” and the fact the federal government refused to protect Black people from massive violence.37 In 1879, Southern Black leaders responded to this terrorism and enforced debt and poverty, petitioning Congress to adopt a program to provide former slaves, or

29 PAINTER, supra note 24, at 87. 30 Id. at 137-145. 31

Id. at 149. 32 Id. at 150. 33 Id. at 151. 34 Id. at 152. 35 PAINTER, supra note 24, at 153. 36 Id. at 159. 37 Id. at 190, 160-183.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION at least those who had served in the Union Army, land on the frontier, subsidized transportation and supplies and support for the first year.38 The proponents of this concept did not seek a legally exclusive Black territory.39 “The location of this territory remained indeterminate, although vague references in discussion and Senatorial debate mentioned Arizona or part of the Indian Territory.”40 And, of course, Kansas still had its special appeal.

Congress never adopted this program. But the “Kansas Fever” idea captured the imagination of six thousand Black people from Louisiana, Mississippi and Texas.41 They took families, belongings, and meager funds and got on river boats to take them to St. Louis. When they “learned on the Mississippi River banks or in St. Louis that there was no free transportation, no free land, no General Sherman, and no Negro state, it made no difference whatsoever. They still meant to leave the South, and once disembarked in St. Louis, they would not go back.”42

Other Black people who left the South in this period had a more realistic sense of their options. Some Black emigrants understood that in Kansas in 1879, the best quality land could be purchased for $6 an acre, mediocre land for $4 an acre, and the poorest for $2 an acre. Homestead land provided 160 acres of the poorest land for $18 in fees and an obligation to work it for five years.43

By 1879, when massive numbers of Southern Blacks sought to resettle in Kansas, most of the Kansas homestead land had been settled. In 1866, the federal government was willing to recognize that the end of slavery required that former slaves be given land to work.44 That effort was designed to fail and did in fact do so. It required that former slaves live in close proximity with former masters.

By 1879, the former slaves appreciated that they needed to move out. But they needed help. Why didn’t we give it to them? Some Republic ans in Congress sought federal aid, but it was not forthcoming.45 By 1879, all the best land in Kansas had been claimed by homesteaders. The land that was available was in the Dakotas and in Montana. The Dakotas were mostly homesteaded in the 1880s and Montana in the early twentieth century. If the federal government had been willing to support the start up

38 Id. at 176-77. 39 Id. 40 Id. 41 PAINTER, supra note 24, at 184. 42 Id. at 195. 43 Id. at 206. 44 See supra notes 26-28 and accompanying text. 45 Painter comments, “In the context of the political thinking of the late nineteenth

century, it is not surprising that Congress appropriated no aid to the Exodusters. PAINTER, supra note 24, at 206.

AKRON LAW REVIEW [Vol. 32:3 costs of Black people who sought to leave the deep South, could they have made a successful life as homesteaders?

Jonathan Raban’s book, BAD LAND: AN AMERICAN ROMANCE, provides a moving description of the homesteaders who settled eastern Montana in the early years of the twentieth century.46 In 1909, in response to heavy lobbying from the railroad industry, Congress offered 320-acre tracts of land in eastern Montana, to anyone willing to claim them.47 As Rabin points out, in 1909, maps still identified eastern Montana as the Great American Desert. In the Dakotas, and even more so in eastern Montana, economic viability turned on rainfall. From the 1880s to 1913, the weather was kind to the homesteaders.48 But it then turned harsh. Beginning in 1914, and especially during the 1930's, rainfall was slight, winters were brutally cold, grasshoppers invaded, hail and cyclones destroyed crops.49 Some homesteaders survived and succeeded, some failed, and some moved west.

How would Black farmers have fared in this larger homesteading world? My ancestors homesteaded in Minnesota in 1881, in North Dakota in 1905 and in Montana in 1910. I asked my 82 year old mom, who is a serious student of this history, “Why didn’t any African Americans claim homesteads in the Dakotas?” She answered, “There was a lot of prejudice against colored people.”50 Jonathan Raban confirms her perception. He reports that the homesteaders of Eastern Montana in the early 20th century came from many ethnic and religious backgrounds. Nordic, Irish, English, and German homesteaders built fences together, against the common enemy, the cow men.51 People of very different religious belief lived in amicable proximity.52

Raban describes the central roll that local schools played in the homesteading communities, more important than local churches.53 The federal government was interested in encouraging the local schools to convey the appropriate message of U.S. citizenship and promoted approved texts and lesson plans. Randall J. Condon, Superintendent of the Cincinnati Schools, and general editor of the Atlantic Readers series, “wrestles bravely with the shaping paradox of American nationalism — that it

46 JONATHAN RABAN, BAD LAND: AN AMERICAN ROMANCE (1996). 47 35 Stat. 639 (1909). This Act also applied to land in Arizo na, Colorado, Nevada, New

Mexico, Oregon, Utah, Washington, and Wyoming. 48 RABAN, supra note 46, at 207, 209. 49 Id. at 208-42. 50 Interview with Alice Ruth Nelson Law, author’s mother (Jan. 22, 1999). 51

RABAN, supra note 46, at 96-146. 52 Id. at 224. Two families, the Wollastons and the Zehms, came to eastern Montana from

the same Minnesota community. The Wollastons were Episcopalian and the Zehms Seventh- Day Adventists. They shared a boarder and held different values. Id.

53 Id. at 162.

1999] WHITE PRIVILEGE AND AFFIRMATIVE ACTION must be multi cultural, a nationalism of all the nations.”54 While the federally promoted educational program sought to promote respect and integration among various European ethnic and religious groups, it ignored race.

The natio nalism of which Condon makes so much fuss in his forward turns out, in practice, to be a simple pride in America for having gathered so many traditions under one flag and for incorporating so many beautiful landscapes in one political geography. Native Americans get a fair shake; black Americans are nowhere to be found — any acknowledgment of their presence in this generous land would have been hard to square with Condon’s “great dream” of “racial equality for all the people.”55

The former slaves knew farming, adversity and hard work. They could not settle

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