This whole discussion as to whether Latinas/os should be eligible for
affirmative action under a "race" plus admissions program raises several
key questions that legal movements, namely critical race theory, have
addressed now for decades, in the process killing many trees. WHAT IS
RACE? How should race be analyzed in the doctrinal square boxes that
the Supreme Court has set forth? What exactly is it about race that
makes it legitimate for a state institution to recognize and account for
and how are these aspects of race not based on impermissible
stereotypes?
Robert Sheridan wrote:
"... enough generations have passed that a good many
descendants of immigrants view themselves, and are viewed by others,
simply
as American, not Italian-American, Irish-American, German-American,
etc."
This empirical assertion is incomplete. Richard Alba's 1990 study
showed that these ethnic descendants retain a sense of a distinctive
Euro immigrant ethnic identity, albeit a weak one, even as they view
themselves as Americans. (Richard Alba, Ethnic Identity: The
Transformation of White America (1990)). Moreover, this statement
assumes that the economic and social integration of these various ethnic
subgroups into the American mainstream has been uniform. This is not
the case, as sociological data consistently show that some ethnic groups
have succeeded better at economic and social integration (or in race
terms, been better at becoming "white"). Eg., Polish Ams have generally
not fared as well in terms of income and education compared to Irish
Ams; Catholic Irish Ams have not fared as well as Protestant Irish Ams.
(For cites and discussion of the sociological literature as it relates
to legal question -- how should law deal with race -- see my article,
Sylvia Lazos Vargas, Deconstructing Homo[genous} Americanus, 72 Tulane
L. Rev 1493 (1998)) as well as the edited collection by Richard Delgado
and Jean Stefancic, Critical White Studies.)
Should Latinas/os and APIAS be treated as racial equivalents of Af. Ams
for purposes of law school affirmative action admissions? It's hard to
summarize the hundred thousand or pages of ink published in CRT, LatCrit
and Critical White Studies symposia published in Berkeley, UC Davis, S.
Cal, U Denver, U Florida, U Miami, etc. Nonetheless, the position of
critical race scholars has generally been that race is contextual
(compare with O'Connor's observation that strict scrutiny in race cases
should be contextual). Moreover, Deborah Malamud wrote an excellent
piece in the Ohio St. L j. explaining why the successful experience of
certain immigrant ethnic groups who arrived in the early 1900s, like
Jews, could not become the base line as to expected performance/social
integration expectancy to/for Af. Ams and more recent immigrant
arrivals, like Latina/os.
I agree with David Bernstein's statement,
"giving the Argentine of Italian descent an AA boost, but not a
host of other worthy applicants who also have interesting backgrounds
(and, like the Argentine, are considered by themselves and everyone else
to be white) on the ground that this hypothetical Argentine is a member
of an ethnic/racial category called "Hispanic" strikes me as exceedingly
arbitrary." I also agree with the observation that racial boundaries
are becoming less distinct. Witness the movement of young multiracial
kids (Sunday's NYT magazine's cover) and the current trendiness of being
multiracial among young white suburbanites. This makes the need to
answer the question "what is race, and why do we care" more pressing.
The racial boundaries are becoming fuzzy and the issue is becoming even
more complex.
To be able to do something more concrete than attaining a subjective
"critical mass" (which could stand in as a number that makes well
intended liberal whites feel comfortable about their white guilt or
their perceived civic responsibilities as white elites) , and to feel
secure in the conclusion in the mentioned case that the Argentine of
Italian descent should not "count" as a racial minority for purposes of
AA, one has to "have a theory" about race. As well, we (and I include
myself) must struggle to transcend our own racial/ethnic life
happenstance, as participants have noted is necessary to do in the
context more generally of constitutional interpretation. (Note a recent
OP-Ed by the irrepressible Maureen Dowd suggesting J. Thomas has not
been able to divorce himself of his biography in affirmative action
cases.)
In another article (58 Md. L. Rev. 150, 235) I suggest a definition of
race based on theory. I advocate courts embrace a more flexible
approach to defining race/minority (forgive me for quoting myself, but
it is efficient)
"The approach advocated here is contextual, ... In each case, the
court should determine whether a social group is a "minority" because
the social, political or cultural context subjects it to a
dominant-subordinate dynamic. Status is relevant because what may
trigger majority animosity, prejudice or opprobrium is a visible
difference, such as a physical characteristic or a mode of behavior, ...
To determine if any social group is a "minority," the Court should take
into account history ( a history of stigmatization as is the case with
segregation and racial minorities), cultural ideology (a "common sense"
that makes a group inferior or places that group in a restrictive role),
and psychology (documented showing that the majority regards the
minority as inferior or subordinate to them in some respect.) The nature
of the dominant-subordinate dynamic will vary with context because
different minority groups are subject to different kinds of prejudices
and power dynamics."
In Prof. Bernstein's hypothetical Italian descent Argentinean applicant,
there is nothing that indicates that this applicant is member of a
minority group (as I have defined it) or that the applicant has
experienced minority status (hence unable to bring that "diversity"
perspective to class discussions). The admissions officer in this case
should feel confident in not giving this applicant any special "plus"
racial AA points. Of course, other cases won't be as easy.
Nevertheless, intelligent and informed inquiry as to "what is race and
why does it matter" should make it easier to say no to the Grutters and
Gratzs of the world, while law schools say yes to "qualified" "minority"
applicants.
As the Grutter dissent pointed out, U. Michigan found it more easy to
say NO to Latino applicants while it admitted every Af. Ams. who met the
LSAT and GPA cut off threshold. We don't know the particulars of the
files. However, I can agree with the abstract proposition that not all
Latinos should be eligible for AA and merit a plus "race" factor. This
does not mean, however, that Latinos are NOT a racial minority, given
their experience with JIM CROW laws, segregation, etc in the SW and
Calif. as already mentioned by Profs. Henderson and Barksdale. For me,
the question becomes more difficult wrt to the Latino equivalent of
Chris Edley's "country club" minority. He reportedly argued within the
Clinton administration's policy of "mend AA, don't throw it away" that
Af Am. merited AA advantage bc even a "country club" Af. Am. experiences
racial discrimination/indignities in this country every day (see Ellis
Cose, Rage of the Privileged Class) even though he or she might have had
every economic and social advantage, as compared to say, our
hypothetical Grutter or Gratz white applicant. I think that in certain
areas of the US, say Calif and TEXAS, the historical background of
conquest, dispossession, etc., makes, as a colleague once crudely noted
to me, Latinos/as the equivalent of "n----s" in these states. (For
less crude arguments and historical proof, see Tomas Almaguer, Racial
Faultlines; Neil Foley, The White Scourge, David Montejano, Anglos and
Mexican in the Making of Texas). In other geographic areas that may not
be the case. For me, it is easy to make that argument that someone from
an economic and privileged background who grew up in Latin America and
came to Washington DC for university should not be given any AA bonus
points. In such a case there is no evidence that such an applicant ever
experienced racial status, and thus could not impart experiential
"diversity" insights in the college setting. (This is also why Latino
advocacy groups do not think that Miguel Estrada should get any
deference as a LATINO/racial AA nominee.)
I hope this helps in a constructive way.
Sylvia R. Lazos
Professor, Boyd School of Law
U. Nevada-Las Vegas
(702) 895-2476
fax: (702) 895-2476
-----Original Message-----
From: Discussion list for con law professors
[mailto:[EMAIL PROTECTED] On Behalf Of Barksdale, Yvette
Sent: Monday, July 07, 2003 11:52 AM
To: [EMAIL PROTECTED]
Subject: Re: Puzzles re: Grutter and Korematsu - hispanics and
segregatedschools
Same goes for blacks, Jews, Chinese, Korean, Cablinasian, etc., or
should."
>
David Bernstein wrote:
Scott Gerber wrote:
What I hope doesn't happen is that the admissions personnel
search during their individualized review for ways to admit preferred
applicants and reject non-preferred applicants."
I think the basic source of discomfiture that lies at the root of this
essentially moral revulsion of many to racial or ethnic diversity based
affirmative action (as opposed to geographic residence, or musical
talent diversity), is that it puts many people, for the first time, on
the wrong side of the immutability problem. Ineligibility for
geograhic, or musical "affirmative action" could be altered by different
choices, say, if an applicant's grandparents had stayed in rural
Nebraska instead of immigrating to the upper West Side of Manhattan, of
if the applicant had had taken violin lessons instead of becoming
PacMan champion of their fifth grade class. In contrast, people on the
"wrong side" of race or ethnicity affirmative action are inalterably
excluded. If you are a member of the excluded group, its hard not to
feel the unfairness of finding yourself excluded by factors over which
which you have no control.
OF course, the snide response would be "ok, now you see how the other
half lives," since for many nonwhite people, race and ethnicity is a
constant negative factor in how the world perceives and reacts to them,
and consequently, how they live their day to day lives, rather than
popping up only at isolated moments (e.g., college admission decisions).
But I think this response too facilely minimizes the painful feelings
of powerlessness that come from exclusion on the basis of racial or
ethnic background. So the parallelism reaction "If its wrong to do it
to them, its also equally wrong to do it to me, or people like me" I
think is understandable, particularly if the beneficiaries of the
affirmative action aren't personally identifable victims of past or
present discrimination.
I think the question is though whether this immutability problem trumps
the need for racial and ethnic inclusion in a world in which 1) race and
ethnicity matters, 2) the failure to explicitly consider race and
ethnicity will result in nondiverse institutions, 3) institutions
which are not racially and ethnically diverse are simply not as capable
as ones which are, and 4) the underlying backdrop is our history of
racial and ethnic degradation, discrimination, and exclusion, which is
why race and ethnicity matters.
I think clearly, an across the board exclusion of a particular race or
ethnicity from an institution (these folks need not apply), has to be
unlawful. But the need to consider race and ethnicity in a limited way
for inclusion, rather than exclusion, has got to prevail, doesn't it,
over the preservation of a social order in which our fundamental
political, cultural and economic institutions are monolithic preserves
of privilege and inclusion for a select few.
yb
*********************************************
Professor Yvette M. Barksdale
Associate Professor of Law
The John Marshall Law School
315 S. Plymouth Ct.
Chicago, IL 60604
(312) 427-2737
(email:) [EMAIL PROTECTED]
*****************************************************
> ----------
> From: Robert Sheridan[SMTP:[EMAIL PROTECTED]
> Reply To: Discussion list for con law professors
> Sent: Thursday, July 03, 2003 10:36 AM
> To: [EMAIL PROTECTED]
> Subject: Re: Puzzles re: Grutter and Korematsu - hispanics
and segregatedschools
>
> This nausea inducing business of calculating the worthiness of people
for
> inclusion and exclusion based on presumed racial or ethnic background
may
> have a certain amount of unfortunate history to back it up, as to
many
> groups, but why should we, in recognition of that, pretend it
represents
> 'Equal protection under law?'
>
> Discussion of this group and that for singling-out overlooks a couple
of
> significant developments that tends to make group-bias irrelevant, or
> should.
>
> The first is that enough generations have passed that a good many
> descendants of immigrants view themselves, and are viewed by others,
simply
> as American, not Italian-American, Irish-American, German-American,
etc.
> Same goes for blacks, Jews, Chinese, Korean, Cablinasian, etc., or
should.
>
> The second is that the lines between groups have been deteriorating at
an
> increasingly greater pace over the past six or seven decades since my
> Irish-Catholic father married my Polish-Jewish mother, giving me a
sort of
> skewed-perspective on such matters.
>
> It is hugely annoying to think that ordinary American young men and
women
> like Grutter and Gratz are singled out for exclusion by race, just as
it is
> hugely annoying to reflect that blacks have been singled out for all
the
> grief visited on them over the not decades but centuries in North
America.
>
> I can understand what the Court felt the country needed to do to
rectify,
> to the extent it could, its bad history, but I tend to think of it as
equal
> protection suspended for the next quarter century in recognition that
it
> isn't really equal protection, after which one may hope the current
idea
> has become irrelevant to the way we get along together much better.
>
> What gives me hope is that I attended two graduations over the past
month,
> sat in the audience for four to five hours at each, at U.C. Berkeley
and
> M.I.T., where literally thousands graduated at each. I was struck by
the
> diversity around me, which I don't for a moment believe is
attributable all
> to affirmative action. I don't think these kids want to hear they
were
> singled out by race or ethnicity. I think they want to be respected
for
> their merit, as they certainly were based on what I witnessed.
>
>
> Robert Sheridan
> [EMAIL PROTECTED]
> SFLS
>
> > [Original Message]
> > From: Barksdale, Yvette <[EMAIL PROTECTED]>
> > To: <[EMAIL PROTECTED]>
> > Date: 7/3/2003 8:01:37 AM
> > Subject: Re: Puzzles re: Grutter and Korematsu - hispanics and
> segregatedschools
> >
> > Not to belabor this thread too much (actually its probably too late
for
> that), but one more comment:
> >
> > David Bernstein writes:
> >
> > I appreciate Yvette's inclusive definition of diversity, but if
> everyone is eligible for AA, then AA has no purpose. If only some
groups
> are eligible for AA, there must be a coherent rationale for why those
> groups, as a class, are eligible, but others aren't.
> > __________________________________________
> >
> > I agree with you that the affirmative action case is stronger for
some
> groups than for others because of remedial considerations which vary
based
> upon the substantiality of the present effects of past/present
> discrimination. However, this does not preclude diversity itself as a
> sufficient basis for affirmative action, at least in university
admissions.
> >
> > THis is because "affirmative action" , if broadly defined as
considering
> personal background information, is actually the norm, not the
exceptionin>
> university admissions decisions. Once a school gets beyond the
automatic
> admits - those whose accomplishments are so sterling the university
chases
> them, rather than the other way around, admissions officers always
give
> boosts for personal background factors which add to the intellectual,
> economic, cultural, artistic and other diversity of the school. This
is
> especially true at highly competitive schools with hordes of
applicants for
> a few slots.
> >
> > The anti- race-based afirmative action argument has always been that
race
> and ethnicity, uniquely, have to be constitutionally irrelevant
background
> factors as a matter of principle (gender diversity gets in because of
> intermediate scrutiny). But, I think the real question is why should
race
> and ethnic background be the only biographical factor excluded from
> admissions decisions, given its large significance in our society.
Viewed
> in this light, looking at racial and ethnic diversity simply fleshes
out
> the applicant's "personal story."
> >
> > I agree with you though, that, as a matter of fact, not all ethnic
> backgrounds necessarily add to the diversity of the university,
> particularly backgrounds which are not underrepresented, or have
little
> significance in shaping an applicant's biography. But, I think the
schools
> can be trusted to make that judgment (what kind of diversity do we
want?)
> absent some evidence that "diversity" is simply a cover for a bald
racial
> or ethnic preference (as in, "I like people of Scottish descent, and
so I
> am going to give them the edge regardless"). And, remember, the Court
> requires the school to make these admissions judgments on an
> individualized, rather than category-wide, basis.
> >
> > yb
> >
> >
> >
> > -----Original Message-----
> > From: David Bernstein [mailto:[EMAIL PROTECTED]
> > Sent: Tue 7/1/2003 6:16 PM
> > To: [EMAIL PROTECTED]
> > Cc:
> > Subject: Re: Puzzles re: Grutter and Korematsu -
hispanics
> and segregated schools
> >
> > In a message dated 7/1/2003 5:37:22 PM Eastern Daylight Time,
> > [EMAIL PROTECTED] writes:
> >
> > > Are your premises here that:
> > >
> > > 1) except for isolated and impoverished pockets, Asians and
Latinos are
> no
> > > longer discriminated against in our society because of their race
or
> ethnicity
> > > - shown by a) society's current repudiation of the overt and
explicit
> > > race-based exclusion and oppression of the past (No Chinese need
> apply), and b)the
> > > economic, residential and social integration of these groups
within the
> > > society. (asians and latino living in racially integrated
suburbs.)
> > >
> > Answer: No, I simply pointed out that the discrimination faced by
Latinos
> > (esp. Mexicans) and Asians 100 years ago is of a very different
magnitude
> than
> > the discrimination they face today, and this is especially relevant
> because a
> > large majority of Asians and Latino families in the U.S. have
arrived
> since
> > 1965, and thus are not descended from those who suffered from the
> discrimination
> > of 100 years ago, so the arguments in favor of preferences for these
> groups
> > based on what happened 100 years ago are less strong than they may
at
> first
> > appear. By contrast, a large majority African American families
were
> here 100
> > years ago and beyond. This suggests that both for diversity
(because the
> groups
> > have very different tenures and experiences in the US) and remedial
> purposes
> > that it's foolish to lump all "minorities" into one group, as all of
the
> Grutter
> > opinions do (any comments on Justice Thomas's absolute insistence
that all
> > "minorities" must be treated exactly alike for diversity purposes?).
> >
> >
> > > 2) the only justification for affirmative action is remedying past
or
> > > present discrimination - and that the value of racial and ethnic
> inclusion or>
> > > "diversity" is not a legitmate goal unless it is a remedy for such
past
> or
> > > present discrimination.
> > >
> > Answer: Diversity may be a legitimate goal, especially for
university
> > admissions, but I can't figure out why a child of Argentine
immigrants of
> Italian or
> > German descent (who in no sense, I think, is a "racial minority"),
is
> > presumptively more diverse than a child of Greek or Arab immigrants,
or
> an Amish or
> > Seventh Day Adventist believer, etc. For that matter, I don't see
any
> recent to
> > believe that the hypothetical Argentine American has presumptively
faced
> more
> > discrimination than the other examples. I do think that by far the
> strongest
> > constitutional case for AA is not the diversity rationale, but the
> remedial
> > rationale, and primarily as applied to specified groups that have
suffered
> > grevious discrimination and isolation.
> > I appreciate Yvette's inclusive definition of diversity, but if
everyone
> is
> > eligible for AA, then AA has no purpose. If only some groups are
> eligible for
> > AA, there must be a coherent rationale for why those groups, as a
class,
> are
> > eligible, but others aren't.
>
