Over the past forty years, affirmative action advocates have participated in a defensive campaign where they have admitted that affirmative action is a form of justified discrimination. This Article finds this a dangerous strategy because it allows for the practice of misguided beliefs about race and remedies for racism. When schools fail to fight the pernicious perception that affirmative action is a racial preference, they allow the bulk of society to participate in the belief that there are no other remedial justifications for affirmative action—like remedying an institution’s history of discrimination, or curing a school’s present and ongoing discrimination by accounting for bias in admissions measures like grades, standardized testing, and letters of recommendation which are the products of racial bias. Given this fact, affirmative action is neither a racial preference nor a form of “benign” racial discrimination. Instead, affirmative action acts as a corrective function.

This Article argues that the Supreme Court’s dismantling of affirmative action in Students for Fair Admissions v. Harvard (“SFFA v. Harvard”) was not solely the work of conservatives. Advocates of affirmative action implemented an over forty-year, weak affirmative defense strategy that centered diversity and treated race conscious remedies as a form of preferential treatment. This Article discusses how portions of the SFFA decision that are critical of the diversity rationale align with principles of racial equality. Additionally, this Article discusses equality, the critiques of the diversity rationale, and calls for advocates of affirmative action to abandon diversity in the wake of SFFA.

Regulatory efforts to curb wage theft are failing. And for good reason: these laws generally empower individual workers to pursue their rights when employers neglect to pay them what they are owed and deter employers with substantial penalties. But the vast majority of workers do not take formal action against their employers. So, when the penalties for committing wage theft are almost entirely triggered by claims workers do not bring, they do not deter employer behavior. Instead, because the likelihood of being penalized at all is so low, some employers make profit-maximizing decisions to commit wage theft on a large scale. In addition to being against the law, these practices impose substantial costs on taxpayers and distort the competitive labor market, as law-abiding employers struggle to compete with others who cut costs by underpaying workers.

This Article explores government contracting initiatives at the state and local level as a supplemental tool for deterring wage theft. In addition to deterring unlawful behavior, conditioning government contracts and other public business relationships on recipients’ past and continued compliance with existent wage payment laws ensure that public funds are not used to subsidize wage theft’s public harm. Furthermore, publicly labeling wage-theft offenders as ill-fit government partners or providers of public goods and services challenges industry practices that have normalized this one particular kind of property “theft.”

While contract-based initiatives are an increasingly popular government tool for promoting certain workplace activities, these initiatives are specifically well suited for promoting wage-payment obligations and addressing the economic and logistical shortcomings of existing anti-wage-theft laws. Rather than relying on individual worker complaints to spur the enforcement process, contract-based initiatives make self-enforcement and rigorous disclosure obligations the price tag for lucrative public works and publicly subsidized opportunities. And because the potential penalty (or cost) of committing wage theft is contract ineligibility, contract-based initiatives turn employers’ cost-benefit analyses inside out. Instead of using low enforcement rates and predictable penalties to determine whether wage theft is likely the most profitable course of action, conscious employers must make these decisions with an added cost variable—the potential loss of public business opportunities. As the movement towards privatization marches on into new services and industries, more employers than ever should assess these costs as too high to risk having to pay.

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling procedure to increase justice for marginalized groups and to decrease procedural subordination and white supremacy—is a form of what I am calling resistance proceduralism. I draw from engagement with procedures, such as requirements to file a lawsuit or for bonds and securities, in my ancestors’ freedom suits—lawsuits fighting for their freedom from slavery—to query whether some marginalized litigants, and even people who were enslaved at the time, may have engaged in resistance proceduralism.