The admission of legacy blacks

Vanderbilt Law Review

Volumn 60, Issue 4, 2007, Pages 1141-1231

  Onwuachi Willig, Angela ^a,b,c  

^a UNIVERSITY OF IOWA   (United States)

^b UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

^c GRINNELL COLLEGE   (United States)

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[No Author keywords available]

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EID: 38349014502     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (420)

1. Rebecca Trounson, A Startling Statistic at UCLA, L.A. TIMES, June 3, 2006, at A1.
2. Id.; see also Tamar Lewin, Colleges Regroup After Voters Ban Race Preferences, N.Y. TIMES, Jan. 26, 2007, at A6 (noting that "Hispanic representation at U.C.L.A. has dropped, too").
3. Trounson, supra note 1, at A1 (referring to comments by Janina Montero, UCLA's Vice Chancellor for Student Affairs, and Jenny Wood, then UCLA student body president).
4. By "affirmative action," I refer to the act of considering the race of underrepresented racial minorities as a plus factor in admissions decisions and the expansion of the merit standards that are traditionally used to admit people into educational programs. Angela Onwuachi-Willig, Using the Master's Tool to Dismantle His House: Why Justice Clarence Thomas Makes the Case for Affirmative Action, 47 ARIZ. L. REV. 113, 114 n.2 (2005);
5. see also Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN. L. REV. 855, 856 (1995) ("An affirmative action program seeks to remedy the significant underrepresentation of members of certain racial, ethnic, or other groups through measures that take group membership or identity into account.");
6. Anupam Chander, Minorities, Shareholders, and Otherwise, 113 YALE L.J. 119, 120 n.3 (2003) (defining it "as minority-mindfulness in decisionmaking resulting in either a preference or a disproportionate distribution of benefits");
7. Martha S. West, The Historical Roots of Affirmative Action, 10 LA RAZA L.J. 607, 614 (1998) (stating that "affirmative action has come to mean any type of program or policy where race, national origin, or gender is taken into account"). Please note that Miranda Oshige is now Miranda McGowan.
8. Trounson, supra note 1, at A1. Proposition 209 is a voter initiative that has prohibited any consideration of race and gender in admissions and hiring within the state system since 1996. Id.; see also CAL. CONST. art. I, § 31 (codifying Proposition 209); cf. Cheryl I. Harris, What the Supreme Court Did Not Hear in Grutter and Gratz, 51 DRAKE L. REV. 697, 705-06 (2003) (describing the effects of Proposition 209 at UCLA's law school, where in 2000 Professor Harris taught "Brown to a Constitutional Law class that had no black students");
9. Adrien Katherine Wing, Race-Based Affirmative Action in American Legal Education, 51 J. LEGAL EDUC. 443, 446-47 (2001) (noting the immediate, damaging effects of Proposition 209 on black enrollment at the University of California-Berkeley);
10. Laura E. Ǵomez, The Legacy of Affirmative Action, UCLA TODAY, Apr. 11, 2006, http://www.today.ucla.edu/2006/ 060411voices_legacy.html (discussing her sadness at the devastating effects that Proposition 209 has had on UCLA's law school and the future development of minority leaders in California).
11. Trounson, supra note 1, at A1
12. Id.
13. Grutter v. Bollinger, 539 U.S. 306 (2003).
14. Id. at 343 (suggesting, four years ago, that race-based affirmative action should come to an end in twenty-five years). See generally Kevin R. Johnson, The Last Twenty-Five Years of Affirmative Action?, 21 CONST. COMMENT. 171, 179-90 (2004) (exploring the reality of a twenty-five-year limit on affirmative action).
15. See Harvey Gee, From Bakke to Grutter and Beyond: Asian Americans and Diversity in America, 9 TEX. J. C.L. & C.R. 129, 149-58 (2004) (discussing the model minority myth);
16. Victoria Choy, Note, Perpetuating the Exclusion of Asian-Americans from the Affirmative Action Debate: An Oversight of the Diversity Rationale in Grutter v. Bollinger, 38 U.C. DAVIS L. REV. 545, 569 (2005) ("Thus, courts, including the United States Supreme Court, erroneously view Asian Americans as a uniform, successful group. If judges and courts do not distinguish between the 'overrepresented' and 'underrepresented' Asian Americans, they may continue overlooking the needs of Asian Americans in equal protection jurisprudence.");
17. Sumi Cho, Misconceptions Harm Asian Americans, CHI. TRIB., Apr. 30, 2004, at 25 (analyzing how Asian Americans are harmed by "stereotypes that characterize Asian Americans as an over-educated, over-achieving 'model minority' group that does not suffer discrimination or does not deserve affirmative action");
18. see also Sumi Cho, Multiple Consciousness and the Diversity Dilemma, 68 U. COLO. L. REV. 1035, 1061 (1997) [hereinafter Cho, Multiple Consciousness] (asserting that the stereotype of "a uniformly successful, exemplary minority who do not face racial discrimination" is problematic); Deana K. Chuang, 8 ASIAN L.J. 31, 39 (2001) ("Notions of an essentialistic proclivity in all Asian Americans overlook the fact that the Asian American community is not monolithic and that many deserving Asian Americans should and do benefit from affirmative action in higher education. In certain fields of study . . . Asian Americans benefit from affirmative action in recruitment and diversity policies in hiring. Furthermore, Southeast Asian refugees from Vietnam, Laos, Cambodia, and Hmong communities experience economic, educational, and cultural hardships, debunking the model minority myth that all Asian Americans are successful and wealthy. In fact, 35 and approximately 70 percent of Vietnamese and Laotian Americans, respectively, live below the poverty level.").
19. See, e.g., Lani Guinier, Our Preference for the Privileged, B. GLOBE, July 9, 2004, at A13 (describing how current admissions criteria advantage the wealthy);
20. Jason B. Johnson, Shades of Gray in Black Enrollment; Immigrants' Rising Numbers a Concern to Some Activists, S.F. CHRON., Feb. 22, 2005, at A1 (quoting Ward Connerly as asserting that "affirmative action programs . . . have not really benefited low-income blacks, those who were the descendants of slaves" but have instead "benefited middle- and upper-income blacks"). Along other lines, opponents of affirmative action have continued to pose the well-known hypothetical question concerning the debate of class versus race privilege - the inevitable question of whether the black neurosurgeon's son or daughter should receive any preference over the son or daughter of a poor white sanitation worker.
21. See Cho, Multiple Consciousness, supra note 10, at 1037 ("In rhetorical defense of such a compromise, stark juxtapositions are often made of the proverbial black 'son of the Pittsburgh neurosurgeon' to the 'son of the white sanitation worker.'");
22. see also Gail Heriot, Thoughts on Grutter v. Bollinger and Gratz v. Bollinger as Law and as Practical Politics, 36 LOY. U. CHI. L.J. 137, 140 (2004) (discussing the merits of preferences to the sons and daughters of black bankers);
23. William C. Kidder, Affirmative Action in Higher Education: Recent Developments in Litigation, Admissions and Diversity Research, 12 LA RAZA L.J. 173, 183 (2001) (noting that "the black daughter of bankers will be outscored by the white daughter of municipal employees by an average of 6 points, the difference between attending a competitive law school or none at all");
24. Deborah C Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. COLO. L. REV. 939, 967-97 (1997) (describing the economic disparities between black and white middle-class students);
25. cf. Richard Delgado, 1998 Hugo Black Lecture: Ten Arguments Against Affirmative Action - How Valid?, 50 ALA. L. REV. 135, 140-41 (1998) (maintaining that race is more indicative of disadvantage than class);
26. Frederick A. Morton, Jr., Note, Class-Based Affirmative Action: Another Illustration of America Denying the Impact of Race, 45 RUTGERS L. REV. 1089, 1123-25 (1993) (noting how "affirmative action was never designed to combat indigence" but disadvantages due to race).
27. Throughout this Article, I capitalize the word "Black" or "White" when used as a noun to describe a racialized group. I do not capitalize these terms when I use them as adjectives. As a general matter, when I am speaking of the entire community of people who may identify as black in the United States, citizen or non-citizen, I use the term "Blacks" instead of the term "African-Americans" because it is more inclusive. See Why "Black" and Not "African-American," 3 J. BLACKS HIGHER EDUC. 18, 18-19 (1994) (describing why the term "black" is a more inclusive term than "African- American"). I refer to people who may identify as black and for whom all four grandparents were born in and descended from slaves in the United States as "African-Americans," "the descendants," or "legacy Blacks." See infra notes 26-27 and accompanying text (providing an explanation for the terms "descendants" and "legacy Blacks"). Conversely, I refer to those Blacks who do not fit into this definition of legacy Blacks as "non-legacy Blacks."
28. Collectively, I refer to black students who are the first generation of their family in the United States (born outside of the United States but reside in this country) and who are the second generation of their family in the United States (born in the United States but have at least one parent who was born in another country) as "first- and/or second-generation Blacks," "first- and/or second-generation black students," "immigrant Blacks," or "students of direct Caribbean/African heritage." See infra note 23. At times, I refer to first-generation Blacks who immigrated to the United States with their parents and attended primary and/or secondary school in the United States as "resident immigrant Blacks" or "resident immigrant black students." See Diane L. Wolf, There's No Place Like "Home": Emotional Transnationalism and the Struggles of Second-Generation Filipinos, in THE CHANGING FACE OF HOME: THE TRANSNATIONAL LIVES OF THE SECOND GENERATION 255, 255 (Peggy Levitt & Mary C. Waters eds. 2002) (providing a slightly different definition in which "[c]hildren of immigrants, or 'second-generation' youth, are defined as children born here to immigrant parents and children born abroad who have emigrated at a very early age"). I also use the phrase "West Indians" or "Afro-Caribbeans" to refer to first- and second-generation Blacks from the Caribbean who are not Spanish-speaking. Finally, I refer to mixed-race students, whom I define as students with one black parent, as either biracial students," "mixed-race students," "mixed-race students of African descent," or "multiracial students."
29. Sarah Rimer & Karen W. Arenson, Top Colleges Take More Blacks, But Which Ones?, N.Y. TIMES, Jun. 24, 2004, at A1. Of course, race is not considered in the admissions decisions for many black students who attend colleges and universities with affirmative-action policies. However, for the sake of simplicity, I assume that admissions officers at schools with race-based affirmative-action programs at least acknowledge in their decision-making the race of all applicants who can be identified as black or part-black from their application forms.
30. Id. This debate has extended beyond the context of colleges and universities and into the arena of politics and racial identification in general. For example, some pundits have gone as far as to claim that United States Senator and presidential candidate Barack Obama is not black, stating that " '[b]lack,' in our political and social reality, means those descended from West African slaves." Debra J. Dickerson, Colorblind, SALON.COM, Jan. 22, 2007, http://www.salon.com/opinion/ feature/2007/01/22/obama/index.html.
31. See, e.g., Aisha Cecilia Haynie, Not 'Just Black' Policy Considerations: The Influence of Ethnicity on Pathways to Academic Success Amongst Black Undergraduates at Harvard University, 13 J. PUB. INT'L AFF. 40, 43 (2002) (studying the trend at Harvard College);
32. see also Belinda Edmondson, The Myth of Black Immigrant Privilege, 4 ANTHURIUM: CARIBBEAN STUDS. J. 1, 2-3 (2006), available at http://scholar.library.miami.edu/anthurium/ volume_4/issue_1/edmondson-themyth.htim (noting that when she first started teaching at Rutgers University-Newark in the early 1990s, "the majority of students in [her] courses . . . were native-born African-Americans" but today, "the decisive majority of students in [her] class[es] [a]re Caribbean or of Caribbean descent"). Haynie identified the phrase "black American" as excluding those Blacks of the first, second, and third generation. See Haynie, supra at 58 n.4. In this Article, I, like some other scholars, see supra note 12 and infra note 23, have defined "black American" such that it excludes Blacks of the first and second generations. For the sake of consistency, I still use the term first- and second-generation Blacks, see infra note 23, when I discuss Haynie's paper, however.
33. Johnson, supra note 11, at A1. This same phenomenon is also occurring somewhat at schools outside the category of elite colleges and universities. See Mark Krikorian, Affirmative Action and Immigration, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 300, 303 (Nicolaus Mills ed. 1994) (noting that "American-born students fell from 85 percent to 55 percent of total black enrollment in just ten years" at Miami-Dade Community College).
34. Among the schools included in the study were the following (in alphabetical order): Barnard College, Bryn Mawr College, Columbia University, Denison University, Duke University, Emory University, Georgetown University, Howard University, Kenyon College, Miami University-Oxford, Northwestern University, Oberlin College, Pennsylvania State University, Princeton University, Rice University, Smith College, Stanford University, Swarthmore College, Tufts University, Tulane University, the University of California-Berkeley, the University of Michigan, the University of North Carolina, the University of Notre Dame, the University of Pennsylvania, Washington University in St. Louis, Williams College, and Yale University. DOUGLAS S. MASSEY ET AL., THE SOURCE OF THE RIVER: THE SOCIAL ORIGINS OF FRESHMEN AT AMERICA'S SELECTIVE COLLEGES AND UNIVERSITIES 30-31 tbl 2.5 (2003). When I refer to elite colleges, I am referring to these colleges and universities and other comparable schools.
35. Johnson, supra note 11, at A1; see MASSEY ET AL., supra note 17, at 40-41 (noting that the study "asked the respondents to identify themselves in terms of race, national origin, birthplace, and religion").
36. Douglas S. Massey et al., Black Immigrants and Black Natives Attending Selective Colleges and Universities in the United States, 113 AMER. J. EDUC. 243, 245 (2007); see also supra note 17 (identifying the twenty-eight schools in the study). First- and second-generation Asians and Latina/os were represented in high percentages, too, at ninety-seven percent and seventy-three percent respectively, but these percentages were proportionate to their proportions within the population of Asians and Latina/os from age eighteen to nineteen, at ninety-one percent and sixty-six percent, respectively. See Massey et al., supra at 245.
37. Massey et al., supra note 19, at 248 tbl.1. The most selective university in the study was Princeton University, with an acceptance rate of just eleven percent, and the least selective university was Miami-University- Ohio, with an acceptance rate of seventy-nine percent. See id. at 248. "Average combined math and verbal Scholastic Aptitude Test (SAT) scores ranged from 1105 at Howard University to 1450 at Princeton University." Id. First- and second-generation Blacks also were more heavily represented at private colleges and universities instead of public ones. Id. at 249. Interestingly, unlike white first-years who were equally divided between men and women, both African-Americans and first- and second-generation Blacks had a ratio of two women to every one man at these colleges. See id. at 254-55.
38. Haynie, supra note 15, at 41, 43. Haynie's study involved more than 170 non-international black students who attended Harvard College during the 1999-2000 academic year. According to Haynie, this group of subjects constituted a 71.4 percent response rate. Id. at 40, 42.
39. Id. at 43. Afro-Caribbeans or West Indians, which excludes Spanish-speaking Caribbeans, constitute approximately seventy percent of the 2.1 million people who make up the foreign-born black population in the United States. The remaining thirty percent is largely made up of Africans. Massey et al., supra note 19, at 245-46. Many of these immigrants, especially Jamaicans and Africans, are highly educated and part of the skilled middle class. See id. at 246; see also infra note 41 (discussing African and Caribbean immigrants).
40. For the purposes of this Article, first-generation Blacks constitute those Blacks who are the first generation of their families to reside in the United States, whether citizen or non-citizen, and second-generation Blacks are the children born in the United States to at least one foreign-born parent. Matthijs Kalmijn, The Socioeconomic Assimilation of Caribbean American Blacks, 74 SOCIAL FORCES 911, 915 (1996);
41. Xue Lan Rong & Frank Brown, The Effects of Immigrant Generation and Ethnicity on Educational Attainment Among Young African and Caribbean Blacks in the United States, 71 HARV. EDUC. REV. 536, 537, 546 (2001);
42. cf. Elizabeth Chacko, Identity and Assimilation Among Young Ethiopian Immigrants in Metropolitan Washington, 93 GEOGRAPHICAL REV. 491, 491 (2003) (defining "persons who immigrated with their parents to the United States when they were less than twelve years of age" as the 1.5 generation);
43. Rubén G. Rumbaut, Severed or Sustained Attachments: Language, Identity, and Imagined Communities in the Post-Immigrant Generation, in THE CHANGING FACE OF HOME, supra note 12, at 43, 49 (defining, unlike this paper and Haynie's paper, "persons born in the United States of one foreign-born parent and one U.S.-born parent" as the 2.5 generation).
44. Haynie, supra note 15, at 43. These statistics refer only to the percentages of first- and second-generation Blacks and do not include the percentages that relate to third-generation Blacks as Haynie generally does in her paper. First-generation Blacks at Harvard were eight percent of the black population at the school but only 6.1 percent of the black population in the United States in 2000, and second-generation Blacks at Harvard made up forty-one percent of the black population at the school but only 3.3 percent of the black population in the United States. Id. at 43. Caribbeans comprise approximately forty-three percent of first- and second-generation Blacks, while Africans make up around twenty-nine percent, and black Latina/os make up around seven percent of the first- and second-generation black population. Massey et al., supra note 19, at 249; see Kalmijn, supra note 23, at 915 ("[A]bout 6% of the black community 16 years or older is Caribbean American. Caribbean blacks come from a large number of islands but a few countries make up the bulk of the immigration flow: Jamaica (29%), Haiti (18%), the Dominican Republic (8%), and Trinidad-Tobago (8%)."); see also Rong & Brown, supra note 23, at 537 (acknowledging that Jamaicans and Haitians make up the largest number of the 1.6 million foreign born people of African origin living in the United States and that, while Nigerians and Ethiopians constitute the largest groups from Africa, "[n]o large ethnic community of Black immigrants from African nations currently exists in the United States"). The leading countries of origin for black immigrants are Jamaica at twenty-one percent, Nigeria at seventeen percent, Haiti at nine percent. Trinidad at seven percent, and Ghana at six percent. Massey et al, supra note 19, at 250.
45. Haynie, supra note 15, at 43. Of course, many immigrant Blacks descend from slaves in their own countries. See Leonard M. Baynes, Who Is Black Enough for You: The Story of One Black Man and His Family's Pursuit of the American Dream, 11 GEO. IMMIGR. L.J. 97, 128 (1996) ("The only difference is that our [black Caribbeans'] slavery did not occur in the United States.");
46. Camille A. Nelson, Carriers of Globalization: Loss of Home and Self Within the African Diaspora, 55 FLA. L. REV. 539, 573-74 (2003) (noting the slavery in colonial Jamaica);
47. cf. Hope Lewis, Lionheart Gals Facing the Dragon: The Human Rights of Inter/National Black Women in the United States, 76 OR. L. REV. 567, 619 (1997) ("The impact of that history, along with the related histories of global imperialism and neo-colonialism, continues to plague modern-day Blacks whether they are descended from slaves in the United States, Latin America, or the Caribbean . . . .").
48. Rimer & Arenson, supra note 13, at A1.
49. I thank Professor Derrick Bell of New York University School of Law for this term - "legacy Blacks." Generally, legacy students are those students who receive a preference in the admissions process on the basis of their familial relationship to alumni of a particular college or university. See Carlton Larson, Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions, 85 WASH. U. L. REV. (forthcoming 2007);
50. Daniel Golden, Family Ties: Preference for Alumni Children in College Admissions Draws Fire, WALL ST. J., Jan. 15, 2003, at A1;
51. David B. Wilkins, The Affirmative-Action President's Dilemma, CHI. TRIB., Feb. 7, 2001, at 17. Legacy applicants enjoy admissions rates much higher than non-legacy applicants. For example, Harvard accepts forty percent of legacy applicants compared to eleven percent overall acceptance of applicants, Princeton accepts thirty-five percent of legacy applicants compared to eleven percent overall acceptance of applicants, and the University of Pennsylvania accepts forty-one percent of legacy applicants compared to twenty-one percent overall acceptance of applicants. See Golden, supra at A1. The vast majority of these students are white. For example, at Texas A&M in 2002, a school that has since abolished its legacy admissions policy, legacy preferences allowed for the enrollment of 321 white students who otherwise would not have been admitted, but only three Blacks and twenty-five Latina/os in this category.
52. Todd Ackerman, Legislators Slam A&M Over Legacy Admissions, HOUSTON CHRON., Jan. 4, 2004, at A1;
53. see also Texas A&M University, Office of the President, Statement on Legacy, Jan. 9, 2004, available at http://www.tamu.edu/ president/speeches/040109legacy.html (containing a speech in which the President Robert Gates asserted that "Texas A&M will no longer award points for legacy in the admissions review process");
54. Chris Fortson, A&M Decision Sparks Debate on Admissions Debate, YALE DAILY NEWS, Jan. 16, 2004, available at http://www.yaledailynews.com/Article.aspx?ArticleID=24525 (discussing A&M's decision to end legacy admissions). In fact, Blacks were not allowed to gain admission to Texas A&M University until 1963.
55. Michael King, Naked City: Texas A&M's Racial Legacy, AUSTIN CHRON., Jan. 16, 2004, http://www.austinchronicle.com/ gyrobase/Issue/print?oid=oid%3A193354. Likewise, one author reported that, at the University of Virginia, ninety-one percent of the legacy applicants who are accepted on an early-decision basis are white, but only 1.6 percent of such admits are black, 0.5 percent are Latina/o, and 1.6 percent are Asian-American. See Golden, supra at A1. Like those students whom we traditionally think of as being legacy students, the descendants - those African-Americans who come from families in which all four grandparents descend from black American slaves - are legacies to a tradition with colleges and universities, too. They are legacies to a tradition of exclusion from elite colleges and universities.
56. See Elizabeth S. Anderson, Integration, Affirmative Action, and Strict Scrutiny, 77 N.Y.U. L. REV. 1195, 1197 (2002) (defining the integrative rationale or what I consider to be similar to a social justice rationale "as a forward-looking remedy for segregation [that] dismantle[s] current barriers" by "proactively [using] race-conscious means to undo the continuing causes of unjust race-based disadvantage" (emphasis added)). The Supreme Court has rejected the use of affirmative action as a means of remedying societal discrimination. See Wygant v. Jackson Bd. of Educ, 476 U.S. 267, 274 (1986) ("This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination."). Nevertheless, it is important to discuss and analyze the social justice rationale for affirmative action: while social justice - meaning the goal of eliminating the educational and wealth disparities and racial inequalities between iaiderrepresented racial minorities and Whites in the United States and remedying general societal, racial discrimination against minorities in this country - is not an accepted legal basis for the policy, it certainly drives supporters' perceptions about the need for affirmative action.
57. See Transcript. Who Gets In?: The Quest for Diversity After Grutter, 52 BUFF. L. REV. 531, 587 (2004) [hereinafter Who Gets In] (quoting David Chambers as stressing "the need for a broader vision of social justice" in affirmative action); Malamud, supra note 11. at 946-47 ("A judge will be more likely tu read precedent as permitting a broader range of action if the judge is personally convinced there are good reasons to do so, even if those good reasons are reasons (like societal discrimination) that must go unstated. Thus, a justice faced with the question whether diversity as a justification for affirmative action survives strict scrutiny might well be influenced by her (unstated) views about why diversity cannot be achieved without affirmative action - which might well turn on the effects of societal discrimination."):
58. Erwin Chemerinsky, Guidelines for Affirmative Action Programs after Proposition 209, 24-FEB L.A. LAWYER 16, 16 (Feb. 2002) ("For its supporters, affirmative action is essential to remedying past discrimination and advancing equality. They believe that today, at times, society must be color conscious if ever there will be a time when it can be color-blind."). For example, underlying Justice O'Connor's opinion in Grutter is the notion that many schools still need affirmative action in order to achieve the goal of racial diversity - that because of past and present disadvantages, racial diversity cannot be achieved fully without affirmative action. If this idea were not central to the opinion, Justice O'Connor would not have needed to discuss a potential twenty-five-year limit on affirmative action, as the benefits of diversity are forever. See Johnson, supra note 9, at 184 ("However, time limits are normally associated with affirmative action programs designed to remedy past discrimination, not those aimed at ensuring a diverse student body. . . . Thus, the Court's suggestion of a 25 year time limit seems peculiar because it justified the University of Michigan's affirmative action program on a diversity rationale, not as a way of remedying past discrimination by the University of Michigan. If a diverse student body is the justification for affirmative action, it is uncertain why the law would require a time limit. Durational limits on a university's affirmative action program make sense to any affirmative action program only if one believes, as many proponents do, that remedying past discrimination really is the true justification for affirmative action, notwithstanding the claim of public universities that they seek a diverse student body.").
59. Tom McNamee, Who Really Benefits from Colleges' Affirmative Action?, CHI. SUN-TIMES, Jul. 19, 2004, at 10 (noting that President Lyndon Johnson "called on Americans to make a special effort to counter the 'devastating heritage of long years of slavery' and 'a century of oppression, hatred and injustice'").
60. Id. (quoting Jackson); see also CBS Evening News: Questioning How Colleges Are Achieving a Diverse Student Population with Regard to Minorities (CBS television broadcast July 3, 2004) (transcript available at LexisNexis Academic) ("'We owe a debt, an obligation, to native born American blacks who can trace their history back to slavery and Jim Crow and continuing discrimination.'" (quoting college testing expert Anthony Carnevale)). Likewise, while discussing policy implications of her study on Harvard College, Haynie asserted, "The American ideal of equal opportunity appears to be undermined when it is found that black Americans, who endure not only present-day racism, but also the burden of dealing with the psychological disadvantages caused by discrimination, benefit the least from affirmative action relative to other blacks at selective institutions." Haynie, supra note 15, at 54. Others have described affirmative action as having broader goals than those asserted by Reverend Jackson. For example, former President Bill Clinton once remarked: The purpose of affirmative action is to give our nation a way to finally address the systemic exclusion of individuals of talent on the basis of their gender or race from opportunities to develop, perform, achieve and contribute. Affirmative action is an effort to develop a systematic approach to open the doors of education, employment and business development opportunities to qualified individuals who happen to be members of groups that have experienced longstanding and persistent discrimination.
61. President William Jefferson Clinton, Remarks on Affirmative Action (July 19, 1995), available at http://www.dol.gov/esa/regs/cfr/41cfr/toc_Chapt60/60_2. 10.htm. The Department of Labor has advanced the same view, providing: § 60-2.10 General purpose and contents of affirmative action programs. (a) Purpose. (1) An affirmative action program is a management tool designed to ensure equal employment opportunity. A central premise underlying affirmative action is that, absent discrimination, over time a contractor's workforce, generally, will reflect the gender, racial and ethnic profile of the labor pools from which the contractor recruits and selects. 41 C.F.R. § 60-2. 10 (2007).
62. Johnson, supra note 11, at A1; cf. Grutter v. Bollinger, 539 U.S. 306, 369-70 (2003) (Thomas, J., concurring in part and dissenting in part) ("The Law School seeks only a façade - it is sufficient that the class looks right, even if it does not perform right.").
63. Professor Guinier, who herself is of Jamaican-Caribbean ancestry, asserted that Haynie's discovery is "a window into the way 'meritocracy' has been destroyed by privilege and cumulative advantage. White students are also disproportionately privileged. It's about wealth, education, disposable assets, intergenerational wealth transfer." "Roots" and Race, HARV. MAG., Sept.-Oct. 2004, at 69 [hereinafter Roots], available at http://harvardmagazine.com/ online/090443.html; see also Rimer & Arenson, supra note 13, at A1 (describing discussions surrounding the make-up of the black college student population at elite schools).
64. See STEPHEN L. CARTER, REFLECTIONS OF AN AFFIRMATIVE ACTION BABY 80 (1991) (asserting that the real winners in admissions programs are "the country's economically and educationally privileged");
65. see also Tomiko Brown-Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436, 1476-77 (2005) ("Parental income, education, and occupational status are the primary positive indicators of whether a student is likely to attend quality elementary and secondary schools and thus a selective university, or any institution of higher education, for that matter.").
66. Lani Guinier, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 145-50 (2003) [hereinafter Guinier, Admissions Rituals]; Guinier, supra note 11, at A13;
67. Robert Paul Wolff & Tobias Barrington Wolff, The Pimple on Adonis's Nose: A Dialogue on the Concept of Merit in the Affirmative Action Debate, 56 HASTINGS L.J. 379, 411-23 (2005); see also Roots, supra note 32,at 70 (quoting Harvard Professor Mary Waters as saying, "'If it's only skin color, that's a very narrow definition of diversity. I would hate to see Harvard not reaching out to those African Americans who have been in the United States for generations. Are we not looking as hard as we should in Mississippi or Alabama for kids who would do well if they were recruited?' ").
68. See infra Part I (analyzing reasons for the disproportionate percentage of first- and second-generation Blacks on elite college campuses). But see infra Part II (detailing the ways in which this general privilege is relative only to legacy Blacks, not to Whites, and not existent for many first- and second-generation Blacks when compared to legacy Blacks).
69. A voluntary immigrant is one who was not forced to come to the United States, i.e., one who did not immigrate because they were fleeing from war and persecution. African-Americans who were brought to colonial America as part of the slave trade and their descendants are not voluntary immigrants. Also, as the late Professor John Ogbu explained, refugees are not voluntary minorities. "Refugees are defined as aliens who are outside of the U.S. and who cannot return to their country of nationality because of a well-founded fear of persecution." Charles J. Ogletree, Jr., America's Schizophrenic Immigration Policy: Race, Class, and Reason, 41 B.C. L. REV. 755, 765 n.57 (2000). "Immigrant or voluntary minorities are people who have moved more or less voluntarily to the United States or to any other society because they believe that this would lead to more economic well-being, better overall opportunities, and/or greater political freedom."
70. John U. Ogbu, Differences in Cultural Frame of Reference, 16 INT'L J. BEHAV. DEV. 483, 484 (1993). Of course, there is the question whether the immigration of "voluntary immigrants" is truly voluntary when based on a desire to leave impoverished countries in hope of economic betterment.
71. See Haynie, supra note 15, at 43-53 (discussing advantages of first- and second-generation Blacks); see also infra Part I.
72. Of course, the higher educational backgrounds of immigrant Blacks stem in part from immigration laws that favored those most educated and skilled within that group. See Bill Ong Hing, Immigration Policies: Messages of Exclusion to African Americans, 37 HOW. L.J. 237, 240-42 (1994) (discussing employment categories); see also infra note 41 and accompanying text. Today, one group of black immigrants, African immigrants, is still severely underrepresented among the immigrant population. The Department of Homeland Security's 2005 Yearbook on Immigration Statistics detailed that only 1.2 percent of total non-immigrant admissions - meaning legal immigrants other than those who were granted permission to enter and stay in the country for a limited period of time - migrated from Africa, compared to forty percent for European immigrants and twenty-five percent for Asian immigrants.
73. Office of Immigration Statistics, Department of Homeland Security, 2005 Yearbook of Immigration Statistics, at 6, 77 (2006), available at http://www.dhs.gov/xlibrary/ assets/statistics/yearbook/2005/OIS_2005_Yearbook. pdf. Of all the 32,003,435 non-immigrant admissions in the 2005 fiscal year, only 395,654 migrated from Africa; however, 12,902,602 migrated from Europe, and 8,044,782 migrated from Asia. See id. at 77. Originally, Africans were not even eligible for the diversity program because it applied only to those "adversely affected" by the 1965 Amendments, see infra note 39, and reserved forty percent of the slots for Irish nationals; however, changes in 1990 enabled Africans to use the diversity program and has helped to increase the number of black immigrants to the United States. See Hing, supra, at 261.
74. Immigration and Nationality Act Amendments of 1965, Pub. L. No. 89-236, 79 Stat. 911 (1965). Although the Immigration Act of 1965 was more liberal than its predecessor in 1924, previous racial discrimination in immigration laws continued to keep the numbers of black immigrants, especially African immigrants, very low. For example, family reunification policies did not benefit African immigrants as much as European, Latina/o, and Asian immigrants because there was generally no family for Africans to be reunited with in the United States. See Hing, supra note 38, at 242 (noting that even in 1990, "no African country came close to its ceiling" of quotas for family preference, with the closest country, Egypt, having just 1768 immigrants with visas of the possible 20,000 visas per country); see also Ogletree, Jr., supra note 36, at 770 (stating that "racial biases still pervade the major avenues of legal immigration"). Andowah A. Newton, Note, Injecting Diversity into U.S. Immigration Policy: The Diversity Visa Program and the Missing Discourse on Its Impact on African Immigration to the United States, 38 CORNELL INT'L L.J. 1049, 1061-62 (2005) (asserting that, in 2003, African immigrants "received only 1.8% of the immigrant visas issued in the family preference category" while "immigrants from Asia received 44.1% and immigrants from Latin America received 49.5% of these visas"). The Immigration Act of 1924, which implemented nationality quotas based on a percentage of that nationality's population in the United States in 1890, reinforced the prior exclusion of Africans, who had immigrated to the United States in very small numbers prior to 1920. From 1820 to 1870, only 648 Africans voluntarily immigrated to the United States, which was certainly understandable given the system of race-based slavery in the southern part of the United States. See Newton, supra, at 1060. From 1870 to 1920, 17,136 Africans immigrated to the United States, which was only .06 percent of the total immigrant population. See id. Prior to 1965, African immigrants made up less than one percent of the total immigrant population. See Hing, supra note 38, at 240.
75. Immigration Act of 1924, ch. 190, 43 Stat. 153, at § 11(a) (1924), repealed by Pub. L. No. 89-236, 29 Stat.911 (1965); Richard A. Boswell, Racism and U.S. Immigration Law: Prospects for Reform After "9/11?" 7 J. GENDER RACE & JUST. 315, 325 (2003);
76. Enid Trucios-Haynes, The Legacy of Racially Restrictive Immigration Laws and Policies and the Construction of the American National Identity, 76 OR. L. REV. 369, 399 (1997). As noted above, African immigrants constituted a very small percentage - almost a non-existent percentage-of immigrants in the United States in 1890. See supra note 39.
77. See Kevin R. Johnson, The End of "Civil Rights" As We Know It?: Immigration and Civil Rights in the New Millennium, 49 UCLA L. REV. 1481, 1484 (2000) ("The year 1965 thus marked the beginning of a much more diverse, far less European immigrant stream into this country."). These black immigrants primarily came from the Caribbean.
78. See John A. Garcia, Caribbean Migration to the Mainland: A Review of Adaptive Experiences, 487 IMMIGR. & AMER. PUB. POL'Y 114, 115, 119, 121-23 (1986) (noting that the most significant influx of Caribbeans into the United States occurred after 1971);
79. Milton Vickerman, Jamaica, in THE NEW AMERICANS: A GUIDE TO IMMIGRATION SINCE 1965, at 479, 479 (Mary C. Waters & Reed Ueda eds., 2007) [hereinafter THE NEW AMERICANS] (noting that around 570,000 Jamaicans arrived in the United States between 1971 and 2004);
80. see also Marilyn Halter, Africa: West, in THE NEW AMERICANS 283, supra, at 290 (noting that during the period of the 1960s to the 1980s, "a significant portion of West African immigrants were highly skilled professionals, students, and exchange visitors" who did not return to their home countries largely because of political strife); Hing, supra note 38, at 242 ("Of the 7614 Africans who immigrated in 1990 in other relative and occupational categories subject to quotas, thirty percent entered in an occupational preference."). The Immigration Act of 1965 set an annual ceiling on immigration from the Eastern Hemisphere at 170,000. It also created a comprehensive preference system for such immigrants, providing that twenty percent of all visas would go to spouses and unmarried adult children of United States citizens, twenty percent would go to unmarried children of resident aliens, ten percent would go to exceptional professionals, scientists, and artists, ten percent would go to married children of United States citizens, twenty-four percent would go to siblings of United States citizens, ten percent would go to skilled and unskilled workers in industries for which the domestic supply of labor was insufficient, and six percent would go to refugees.
81. DEBRA L. DELAET, U.S. IMMIGRATION POLICY IN AN AGE OF RIGHTS 125 (2000). There was no similar preference system for immigrants from the Western Hemisphere until more than ten years later in 1976. See id. (summarizing the 1976 Amendments to the Immigration and Nationality Act).
82. See RACHEL F. MORAN, INTERRACIAL INTIMACY: THE REGULATION OF RACE & ROMANCE 103 (2001) ("Blacks, whether male or female, who marry out are better educated than those who do not. In addition, white men who marry interracially are more likely to have a college education than those who marry within their race.").
83. See Trina Jones, Shades of Brown: The Law of Skin Color, 49 DUKE L.J. 1487, 1514 (2000) (noting that lighter-skinned Blacks fare better occupationally than darker-skinned Blacks); see also infra notes 76-80, 113-14 and accompanying text (discussing this trend).
84. Shilpa Banerji, Study: Dark-Skinned Black Job Applicants Hit More Obstacles, DIVERSE ISSUES HIGHER EDUC. Aug. 31, 2006, http://www.diverseeducation.com/artman/publish/ article_6306.shtml (discussing Harrison's study "Colorism in the Job Selection Process: Are There Preferential Differences Within the Black Race?," which was presented at the annual meeting of the Academy of Management in 2005).
85. Id. (quoting Harrison who cited one reason for these findings as being "because expectations of the light-skinned black male are much higher, and he doesn't appear as 'menacing' as the darker-skinned male applicant"). During the study, students rated, on a scale of 1-7, the likelihood that they would hire the person whose résumé and picture they reviewed. A rating of 1 meant that they were "not at all" likely to hire the person, and a rating of 7 meant that they "definitely" would hire the person. For the light-skinned male with only a bachelor's degree, the average rating was 5.35. For the dark-skinned Black male with an MBA, the average rating was 4.5. Id.
86. Joni Hersch, Profiling the New Immigrant Worker: The Effects of Skin Color and Height, (Vanderbilt Law and Economics Research Paper, No. 07-02 Jan. 19, 2007), available at http://ssrn.com/abstract=927038;
87. see also Travis Loller, Study Says Skin Tone Affects Earnings, CBS NEWS, Jan. 26, 2007, http://www.cbsnews.com/stories/ 2007/01/26/ap/national/ mainD8MT8F882.shtml (quoting Hersch as stating that "[o]n average, being one shade lighter has about the same effect as having an additional year of education");
88. accord Arthur H. Goldsmith et al., Shades of Discrimination: Skin Tone and Wages, 96 AMER. ECON. REV. 242, 243-45 (2006) (finding results that comport with those of Hersch, which was that dark-skinned to medium-skinned Blacks suffered a discriminatory penalty in wages of ten percent to fifteen percent relative to Whites);
89. Jennifer L. Eberhardt et al., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 PSYCH. SCI. 383, 384 (2006).
90. Professor Eberhardt and her colleagues used the data set from a 1998 study by Professor David Baldus et al., David C. Baldus et al., Racial Discrimination and the Death Penalty in the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 CORNELL L. REV. 1638 (1998), to conduct a study of racial stereotypicality in the application of the death penalty to black defendants accused of killing a white victim. She and her cohort found that defendants whose appearance was perceived as more stereotypically Black were more likely to receive a death sentence than defendants whose appearance was perceived as less stereotypically Black. In fact, 24.4% of those Black defendants who fell in the lower half of the stereotypicality distribution received a death sentence, whereas 57.5% of those Black defendants who fell in the upper half received a death sentence. Id.
91. See Haynie, supra note 15, at 43-53 (discussing the absence of these Black students at Harvard College). Some commentators, however, have argued that affirmative action policies should not include immigrants at all, even those who have grown up in the United States. See RICHARD D. KAHLENBERG, THE REMEDY 74-80, 114 (1996) (arguing against the inclusion of primarily non-black immigrants in affirmative-action programs that are designed to address discrimination against African-Americans). Others have argued that African-Americans are disadvantaged on the job market when immigrants are included in affirmative-action programs. See Krikorian, supra note 16, at 300-03 (arguing that "it is immoral to allow large-scale immigration of covered ethnic groups" in race-based affirmative-action programs);
92. Peter H. Schuck, Alien Rumination, 105 YALE. L.J. 1963, 2000-04 (1996)
93. (reviewing PETER BRIMELOW, ALIEN NATION: COMMONSENSE ABOUT AMERICA'S IMMIGRATION DISASTER (1995)) (asserting that immigrants should not be eligible for affirmative action because they have not endured the history of discrimination that African-Americans have).
94. Email from Lani Guinier, Bennett Boskey Professor of Law, Harvard Law School, to Angela Onwuachi-Willig, Professor of Law, University of Iowa College of Law (Jan. 22, 2007) (on file with the author).
95. See Lolita K. Buckner Inniss, Tricky Magic: Blacks as Immigrants and the Paradox of Foreignness, 49 DEPAUL L. REV. 85, 88-89 (1999) (noting that "[m]any have argued that recent black entrants are not due any redress because they and their ancestors have not experienced the full measure of American white racism");
96. Clarence Page, Black Americans Could Use Some Immigrant Optimism, KANSAS CITY STAR, Jul. 8, 2004, at B7 ("But if [affirmative action's] goal is to address historical racial inequalities in American life, Harvard may have to take black ethnicity into account in the same way that some institutions have argued over which nationalities should be counted as 'Hispanic' "); see also infra Part III (considering procedural changes to enable consideration of ancestral and ethnic heritage). If we assume that the percentage of Blacks at elite institutions will remain roughly the same, an increase in the number of legacy Blacks necessarily entails that at least some first- and second-generation Blacks will be excluded from affirmative-action programs.
97. See Thomas J. Durant, Jr. & Kathleen H. Sparrow, Race and Class Consciousness Among Lower-and Middle-Class Blacks, 27 J. BLACK STUDS. 334, 342-43, 347 (1997) (defining "middle class" as "those individuals with at least some college education and with an income of $16,000 or more" and finding in a study of lower- and middle-class Blacks that "both groups express a similar degree of race consciousness" and that "regardless of social class, Blacks feel that race is still a dominant factor that influences life chances and opportunities");
98. Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 COLUM L. REV. 928, 961 (2001) ("Students of color who are privileged by class or educational background nonetheless experience subordination by ubiquitous societal racism. They bring to the classroom and to the larger intellectual discourse an understanding of subordination that those privileged by white supremacy do not necessarily share. This knowledge is critical to the educational enterprise if the academy is to fulfill a moral commitment to anti-racism.");
99. see also Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV L. REV. 817, 827-56 (1991) (discussing particularly negative stereotypes of Blacks as compared to other minorities and discussing the way in which Blacks are discriminated against outside of regulated areas like housing and employment, such as when purchasing goods or services - here, cars); Malamud, supra note 11, at 967, 996 ("There is strong evidence that race is a factor in black middle-class economic status in the crucial areas of housing, work, income security, education, wealth accumulation, and the intergenerational transmission of middle-class status. . . . I do not think that there is any stratum of the black middle-class that is free of the social, psychological, and economic pressures of race.");
100. Solangel Maldonado, Discouraging Racial Preferences in Adoptions, 39 U.C. DAVIS L. REV. 1415, 1420-23 (2006) (discussing particularly negative stereotypes of Blacks as compared to other minorities); infra Part II (discussing the benefits of race as it relates to diversity of perspective on campus and explicating how Blacks in general face discrimination based on racial stereotypes regardless of their ancestral background and socioeconomic status). For the purposes of this Article, "[r]ace consciousness is defined as one's awareness of his racial identity and group membership, as reflected by attitudinal expressions of identity, devotion, unity, pride, culture, status, behavior, and iniquities." Durant & Sparrow, supra at 340.
101. This Article primarily focuses on the intersection of race and status as a first- and second-generation Black in this affirmative-action debate. Although mixed-race students are also disproportionately represented in elite institutions of higher education, they have not been a primary focus in this discussion of race and inclusion in affirmative-action programs, in part because many of them descend from people who were enslaved in the United States. Where appropriate, however, this Article will also highlight important points concerning the intersection of race, color, privilege, and education as they relate to mixed-race students. Personally, I approach this debate at the intersection of the experiences of both first- and second-generation Blacks and African-Americans. I am a second-generation Nigerian American; however, I grew up in the South in poor apartment complexes surrounded by African-Americans or legacy Blacks. It is my hope that my position at this intersection provides me with a unique lens from which to review, analyze, and discuss this debate regarding affirmative action, legacy Blacks, and first- and second-generation Blacks.
102. This Article does not address the remedial justification for affirmative action, as that rationale is limited to remedying only the discrimination of any particular institution in question. See Wygant v. Jackson Bd. of Educ, 476 U.S. 267, 277-78 (1986) (discussing how the remedial justification is applied). Given the disincentives for any school to admit its past discrimination, difficulties in receiving "compensation" through the use of affirmative action exist even for legacy Blacks or the descendants. See Evan Caminker, Post-Admissions Educational Programming in a Posi-Grutter World: A Response to Professor Brown, 43 HOUS. L. REV. 37, 42 (2006) ("The remedial rationale is backward-looking, arguing that affirmative action is necessary to redress prior discrimination against minorities in admissions decisions.").
103. See Massey et al., supra note 19, at 244 (The "broadening of the scope of civil rights coincided with a remarkable upsurge in immigration from Asia and Latin America, and over time the moral justification for affirmative action shifted subtly from restitution for a legacy of racism to the representation of diversity for its own sake."); see also Guinier, supra note 11, at A13 ("Gone is the larger role of higher education in correcting for historical injustice, reaching out to those who are materially disadvantaged, encouraging publicly spirited innovators, or training a representative group of future leaders of all races.").
104. See supra note 52 (explaining why this Article does not address the remedial justification for affirmative action).
105. For example, although Blacks make up thirteen percent of the population in the United States, as Haynie notes, the black students at Harvard comprise approximately eight percent of the student body, a percentage that is actually higher than most schools. Haynie, supra note 15, at 43. For instance, Blacks make up only six percent of the population of students at Oberlin College, a highly progressive college with a wonderful history of openness and diversity for Blacks. See Oberlin Online, Oberlin by the Numbers, Profile of the Total Student Body, http://www.oberlin.edu/coladm/about/stats.html (last visited Apr. 10, 2007).
106. Professor Guinier has noted that there are many ways to define merit and that "merit is contextual and a function of institutional mission." Guinier, Admissions Rituals, supra note 34, at 134 n.87. With this point in mind, it becomes important for schools that identify diversity and social justice as part of their mission to evaluate individual applicants in a manner that examines not only how a student's admission may advance the diversity mission of the school but also how the student may help the school achieve its goals related to social justice and action. Vassar College in New York has a particularly strong mission statement. In its mission statement, Vassar identifies, among many other things, the following three items as part of its goals: (1) "[t]o develop a well-qualified, diverse student body which, in the aggregate, reflects cultural pluralism, and to foster in those students a respect for difference and a commitment to common purposes," (2) "[t]o promote [through curricular offerings] gender and racial equality and a global perspective," and (3) "to nurture not only pleasure in learning but also an informed and active concern for the well-being of society."
107. Vassar College, Academic Life, Mission Statement, available at http://catalogue.vassar.edu/academiclife.html (last visited Apr. 10, 2007). Likewise, Grinnell College in Iowa includes both a commitment to diversity and social responsibility in its goals. Grinnell College cites three of its goals as being excellence in education for students in the liberal arts, a diverse community, and social responsibility, and it includes in its core values "a wide diversity of people and perspectives" and a "strong tradition of social responsibility and action."
108. Grinnell College, Core Values, available at http://www.grinnell. edu/offices/president/missionstatement/core/ (last visited Apr. 10, 2007);
109. see also Lee Bollinger, Columbia University, Diversity Mission Statement, available at http://www.columbia.edu/cu/vpdi/ diversity_mission_statement.html (last visited Apr. 10, 2007) ("Both to prepare our students for citizenship in a pluralistic world and to keep Columbia at the forefront of knowledge, the University seeks to recognize and draw upon the talents of a diverse range of outstanding faculty, staff, and students and to foster the free exploration and expression of differing ideas, beliefs, and perspectives. . . .").
110. See, e.g., KENJI YOSHINO, COVERING: THE HIDDEN ASSAULT ON OUR CIVIL RIGHTS 22 (2006) ("We are at a transitional moment in how Americans discriminate. . . [I]ndividuals no longer need[] to be white, male, straight, Protestant, and able-bodied; they need[] only to act white, male, straight, Protestant, and able-bodied.");
111. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1262-63 (2000) ("Racial conduct discrimination derives, not simply from the fact that an employee is, for example, phenotypically Asian American . . . but also from how she performs her Asian-American identity in the workplace.");
112. see also Frank Rudy Cooper, Against Bipolar Black Masculinity: Intersectionality, Assimilation, Identity Performance, and Hierarchy, 39 U.C. DAVIS L. REV. 853, 853, 859-70, 874-88 (2006) (analyzing how middle-class heterosexual black men - who are caught between the bind of the socially constructed images of the assimilationist "Good Black Man" and the dangerous "Bad Black Man" - receive incentives to perform their identity in a way that fits the assimilationist ideal of the "The Good Black Man");
113. Angela Onwuachi-Willig, Undercover Other, 94 CALIF. L. REV. 873, 885-94 (2006) (explaining that in the post-Civil Rights era, how one performs his or her racial identity matters almost as much as how one looks).
114. Lyndon B. Johnson, The Howard University Address, June 4, 1965: "To Fulfill These Rights," in LEE RAINWATER & WILLIAM L. YANCEY, THE MOYNIHAN REPORT AND THE POLITICS OF CONTROVERSY 125, 126 (1967).
115. Id. at 125-30; Harry J. Holzer, Affirmative Action After Grutter: Still Worth Preserving?, 14 GEO. MASON U. CIV. RTS. L.J. 217, 219 (2004);
116. see also Luke Charles Harris & Uma Narayan, Affirmative Action and The Myth of Preferential Treatment: A Transformative Critique of the Terms of Affirmative Action Debate, 11 HARV. BLACKLETTER L.J. 1, 8 (1994) (reciting statistics that show that affirmative action has helped to pave the way for Blacks in employment and schooling); Krikorian, supra note 16, at 300 (asserting that affirmative action was "intended to compensate for historical discrimination").
117. Brest & Oshige, supra note 4, at 865-73 (analyzing corrective justice as a rationale for affirmative action); see also Paul Brest, Some Comments on Grutter v. Bollinger, 51 DRAKE L. REV. 683, 683-86 (2003) (stating that individuals tend to give to organizations that support "groups with which they identify on the basis of characteristics such as race, ethnicity, and religion");
118. Alex M. Johnson, Jr., The Destruction of the Holistic Approach to Admissions: The Pernicious Effects of Rankings, 81 IND. L.J. 309, 328-31 (2006) (discussing various rationales for affirmative action including corrective justice).
119. See Roots, supra note 32, at 70 (quoting Guinier who has criticized the failure by colleges and universities to reach native Blacks with long term roots in the United States); cf. Hing, supra note 38, at 278-79 ("[T]hose who are skeptical about this nation's commitment to addressing the plight of unemployed African Americans could look at the Immigration Act of 1990 and conclude that the nation is now beginning to use immigration to avoid improving the situation of native unemployed and under-skilled workers. A reasonable conclusion is that United States' leaders are either deliberately or subconsciously searching for a way to continue to avoid repairing the desperate situation of people whom they and the rest of the power structure have abandoned.").
120. See supra note 56 and accompanying text (discussing the missions and goals of Columbia University, Grinnell College, and Vassar College).
121. See Grutter v. Bollinger, 539 U.S. 306, 369-70 (2003) (Thomas, J., concurring in part and dissenting in part) (arguing that "law schools continue to use the test [the LSAT] and then attempt to 'correct' for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body"). Dean Frank Wu has explained that one danger of diversity is that a school can create a racially diverse classroom without achieving full integration or addressing the issues that face poor minorities, especially poor Blacks, in the educational pipeline. For example, he asserted, "We could have diversity by admitting a large number of Caribbean students, Haitians, Africans, and others who would not identify themselves nor perhaps be identified by others, as African-Americans." Who Gets In, supra note 28, at 533.
122. Grutter, 539 U.S. at 330.
123. See Johnson, supra note 58, at 126; see also Trina Jones, The Diversity Rationale: A Problematic Solution, 1 STAN. J. C.R. & C.L. 171, 179 (2005) ("While a racially diverse student body benefits everyone, what is really being sought through these admissions policies is access for racial minorities to institutions from which they have been and still are systematically and disproportionately excluded because of racism. Thus, the real problem is historical and contemporary racism. Lack of diversity is its consequence.");
124. Charles R. Lawrence III, Each Other's Harvest Diversity's Deeper Meaning, 312 U.S.F. L. REV. 757, 765 (1997) ("[W]e seek racial diversity in our student bodies and faculties because a central mission of the university must be an eradication of America's racism. We cannot pursue that mission without the collaboration of significant numbers of those who have experienced and continue to experience racial subordination.").
125. See DEREK BOK & WILLIAM BOWEN, THE SHAPE OF THE RIVER 258 (1998) (finding that black male graduates of elite colleges earned twice as much as black men with non-elite degrees and that black female graduates of elite colleges earned eighty percent more than black women with non-elite degrees).
126. Haynie, supra note 15, at 54.
127. See supra note 57 and accompanying text (discussing the ways in which race is as much about performance as it is about physical markers such as skin color); see also infra notes 70-73.
128. Johnson, supra note 41, at 1492; see also Haynie, supra note 15, at 41 ("[T]he post-1965 mass immigration from countries in the Caribbean and Africa has added complexity to the definition of 'African-American.'").
129. See supra note 57 and accompanying text; see also Massey et al., supra note 19, at 252 ("To white observers, black immigrants seem more polite, less hostile, more solicitous, and 'easier' to get along with. Native blacks are perceived in precisely the opposite fashion,"); Angela Onwuachi-Willig & Mario L. Barnes, By Any Other Name? On Being "Regarded As" Black, and Why Title VII Should Apply Even If Lakisha and Jamal Are White, 2005 WIS. L. REV. 1283, 1340-41 n.242 (hinting that Africans and Caribbeans may be viewed as distinct from African-Americans in a way that makes them model black minorities).
130. See Angela Onwuachi-Willig, Volunteer Discrimination, 40 U.C. DAVIS L. REV. 1895, 1907-27 (2007) (discussing the ways in which Blacks have incentives to perform an assimilationist or accommodating identity and to distance themselves from those Blacks who do not exhibit conforming behavior); Onwuachi-Willig & Barnes, supra note 70, at 1308 n.101 (asserting that racial identity performance by Blacks who wish to be included in the mainstream "carries with it [also] the need to . . . distance one's self from persons who can challenge one's identity performance").
131. See infra Part II.B; see also Berta Esperanza Hernández-Truyol & Shelbi D. Day, Property, Wealth, Inequality and Human Rights: A Formula for Reform, 34 IND. L. REV. 1213, 1224 (2001) ("Although racism and its most harmful effects occurred during the early part of U.S. history, they endure today. Harms of the past are felt at present, exacerbated by the new, more sophisticated and nuanced trappings of bigotry that are inflicted on Blacks today. To make a bad situation worse, the impact falls largely upon those who are at the bottom of the socio-economic ladder, as 'the accumulation of disadvantages . . . pass[es] from generation to generation.'").
132. Devon Carbado and Mitu Gulati have written about the work that people of color do to counter harmful stereotypes of minority identities that operate in employment environments and have also more generally addressed the notion of race as a "performative identity," in particular how such performative work can render some Blacks as acceptable and others as unacceptable. See Devon W. Carbado & Mitu Gulati, Race to the Top of the Corporate Ladder: What Minorities Do When They Get There, 61 WASH. & LEE L. REV. 1645, 1658 (2004) (asserting that businesses prefer to hire Blacks "who are phenotypically but unconventionally black - that is to say, people who 'look' but do not 'act' black"); Carbado & Gulati, supra note 57, at 1279-1308 (describing how women and people of color attempt to alter their racial identities in order to prevent discrimination and preempt stereotyping in the workplace);
133. Devon W. Carbado & Mitu Gulati, The Fifth Black Women, 11 J. CONTEMP. LEGAL ISSUES 701, 719-20 (2001) (describing how performance identity can work to explain discrimination against a fifth black woman in a company where four other black women have been promoted); see also Cooper, supra note 57, at 874-95 (discussing the implications of fitting into or not fitting into the roles of the assimilationist "Good Black Man" and the dangerous "Bad Black Man");
134. Rogelio A. Lasso, Some Potential Casualties of Moving Beyond the Black/White Paradigm to Build Racial Coalitions, 12 WASH. & LEE J. C.R. & SOC. JUST. 81, 82-83 (2005) (noting that he learned as a teenage student that because he was a "foreigner [black Panamanian], [he] was not considered Black . . . [that] [s]ince [he] was from another country, [he] was considered an honorary white"); Onwuachi-Willig & Barnes, supra note 70, at 1340-41 n.242 (inquiring whether "the social construction of African or Caribbean identity [may be] something separate and different from that of constructions for blackness as embodied by African Americans").
135. See McNamee, supra note 29, at 10 (referring to such comments by Lani Guinier).
136. Haynie, supra note 15, at 47; Brown-Nagin, supra note 33, at 1477 ("According to a 2003 report by The Century Foundation, seventy-four percent of students admitted to America's 146 most competitive colleges in 1995 'came from the top quarter of the nation's social and economic strata.' Less than ten percent came from the bottom half of the socioeconomic strata, and only three percent from the bottom quartile.").
137. See KATHY RUSSELL ET AL., COLOR COMPLEX: THE POLITICS OF SKIN COLOR AMONG AFRICAN AMERICANS 38, 77 (1992) (noting that light-skinned Blacks fare better educationally and economically than dark-skinned Blacks); see also supra notes 45-46 and accompanying text (discussing various studies that reveal color bias).
138. RUSSELL ET AL., supra note 76, at 38; see also Kimberly Jade Norwood, The Virulence of BlackThink and How Its Threat of Ostracism Threatens Those Not Deemed Black Enough, 93 KY. L.J. 143, 170 n.75 (2004/2005) ("W.E.B. DuBois' 'Talented Tenth,' who would serve and guide the masses, was composed - with one exception - of light-skinned mulattoes. We see the same results a century later. Light-skinned Blacks are better educated, earn more money, have better jobs and careers, and have greater opportunities for achievement and success than their darker brothers and sisters.").
139. To pass the paper bag test, one had to be lighter than the color of a paper bag. See Leonard M. Baynes, Blinded by the Light, But Now I See, 20 W. NEW ENG. L. REV. 491, 492 (1998).
140. See RUSSELL ET AL., supra note 76, at 28 ("At some of the most prestigious of the schools, including Spelman, applicants were allegedly required to pass a color test before being admitted.").
141. See RUSSELL ET AL., supra note 76, at 28-29 ("Many academic administrators considered it a waste of time to train dark-skinned Negroes for paths in life that would be closed to them. . . . Denied a liberal arts education, dark-skinned students began turning to schools like Tuskegee Institute of Alabama, founded in 1881 by Booker T. Washington."); see also Mikyong Minsun Kim, Historically Black vs. White Institutions: Academic Development Among Black Students, 25 REV. HIGHER EDUC. 385, 386 (2002) ("Until the U.S. Supreme Court's landmark Brown v. Board of Education decision in 1954 . . . over 90% of African American college graduates were educated by historically Black institutions.").
142. See RUSSELL ET AL., supra note 76, at 107-23 (discussing the color complex in "dating and mating"). See generally Jones, supra note 43.
143. See supra note 42; see also RUSSELL ET AL., supra note 76, at 107-23 (discussing the color complex in "dating and mating").
144. See supra note 38 and accompanying text (noting how immigration laws favored minority immigrants who were educated).
145. See F. Nii-Amoo Dodoo, Assimilation Differences Among Africans in America, 76 SOC. FORCES 527, 527-28 (1997) (noting the British Caribbean occupational advantage over native black Americans).
146. See generally Barry R. Chiswick, Sons of Immigrants: Are They at an Earnings Disadvantage?, 67 AM. ECON. REV. 376 (1977). At the same time, scholars have found that either this income gap between black Caribbeans and African-Americans is closing or does not exist. See Kalmijn, supra note 23, at 912, 928 (noting that the gap between Caribbean and African-Americans has narrowed, is limited to the British Caribbean, and "the British advantage is limited to the occupational domain and is not as spectacular in magnitude as is commonly believed");
147. Kristin F. Butcher, Black Immigrants to the United States: A Comparison with Native Blacks and Other Immigrants, 47 INDUS. & LAB. REL. REV. 265 (1994) (finding that Caribbean immigrants were more likely to be employed in professional or managerial positions but finding no differences in earnings);
148. Suzanne Model, Caribbean Immigrants: A Black Success Story?, 25 INT'L MIGRATION REV. 248, 248 (1991) (same).
149. Haynie, supra note 15, at 48 tbl.5; see also Massey et al., supra note 19, at 256 (reporting similar statistics in which "70 percent of the fathers [of black freshmen of immigrant origins] were college graduates, and 44 percent held advanced degrees, compared with figures of 55 percent and 25 percent among natives").
150. Haynie, supra note 15, at 48 tbl.5. A study in 1997 found that African immigrants are the nation's most highly educated group. In terms of education, they outperformed all immigrant groups, including those immigrants from Europe, Canada, and Asia and even white Americans. The study revealed that 48.9 percent of all African immigrants who lived in the United States had a bachelor's degree, either from the United States or outside of the United States. This number was compared to 44.6 percent of Asian immigrants, 24.6 percent of white Americans, and 13.3 percent of African-Americans. See African Immigrants in the United States Are the Nation's Most Highly Educated Group, 26 J. BLACKS IN HIGHER EDUC. 60, 60 (1999-2000) [hereinafter African Immigrants] (noting that there were no definite statistics regarding how many of these African immigrants were white, but estimating that "70 to 75 percent of the African immigrants to the United States are black");
151. see also DAVID M. REIMERS, OTHER IMMIGRANTS: THE GLOBAL ORIGINS OF THE AMERICAN PEOPLE 246 (2005) (stating that the 1990 census revealed that eighty-eight percent of African immigrants finished high school and nearly half had a college degree). The study also found, however, that despite higher levels of education, African immigrants earn significantly less than other racial and ethnic groups. For example, Asian immigrants had a median household income that was thirty-seven percent higher than that of African immigrants, and white Americans had a median household income that was thirty-six percent higher than that of African immigrants. Id. at 60-61; Dodoo, supra note 84, at 533-41 (revealing the results of his research that showed that "African immigrants, despite their high levels of schooling, are rewarded least for their college education"); Hersch, supra note 46, at 5 ("This paper demonstrates that post-1965 immigrants have an additional source of disadvantage: personal characteristics such as darker skin color and shorter stature that may be stigmatized in the U.S. labor market."); see also infra Part II.B (detailing why the relative advantages in education by first- and second-generation Blacks may not warrant their exclusion from affirmative-action programs, especially when they, immigrant Blacks, are disadvantaged when compared to Whites and do not receive the same rewards for their education).
152. Haynie, supra note 15, at 48 tbl.6; see also Malcolm Gladwell, Black Like Them, NEW YORKER, Apr. 29, 1996, available at http://www.gladwell.com/1996/1996_04_29_a_black.htm (describing the phenomenon in which West Indians in New York make more money than American Blacks). But see Massey et al., supra note 19, at 256 (stating that "[w]ith the exception of parental education, none of the measures of socioeconomic background [employment rates, income, and wealth] differ by immigrant status").
153. Massey et al., supra note 19, at 256.
154. Haynie, supra note 15, at 47.
155. John U. Ogbu & Herbert D. Simons, Voluntary and Involuntary Minorities: A Cultural-Ecological Theory of School Performance with Some Implications for Education, 29 ANTHROPOLOGY & EDUC. Q. 155, 155-88 (1998);
156. John U. Ogbu, Understanding Cultural Diversity and Learning, 21 CULTURAL RESEARCHER 5, 5-14 (1992);
157. see also Kimberly Jade Norwood, BlackThink's 'Acting White' Stigma in Education & How It Fosters Academic Paralysis in Black Youth, 50 HOW. L.J. (forthcoming 2007) (manuscript at 18-19, 26-31, on file with author) (discussing how high academic performance may be perceived by some peers as "acting white"); Rong & Brown, supra note 23, at 540 (analyzing Ogbu's theories);
158. cf. CHRISTOPHER JENCKS, RETHINKING SOCIAL POLICY: RACE, POVERTY, AND THE UNDERCLASS 129 (1992) ("In order to become fully assimilated into white America blacks must to some extent identify with people who have humiliated and oppressed them for three hundred years. Under these circumstances 'assimilation' is likely to be extraordinarily difficult."). But see Massey et al., supra note 19, at 263, 268 (maintaining that "for black students placed in elite schools, susceptibility to peer influence turned out to be a good thing"); see also infra note 92 (citing to critiques of Ogbu's theory of oppositional culture).
159. See also MASSEY ET AL., supra note 17, at 8 (describing Ogbu's theories); Rong & Brown, supra note 23, at 540 (same).
160. MASSEY ET AL., supra note 17, at 8; Ogbu, supra note 90, at 5-14. An "Oreo" is defined as one who is black on the outside but white on the inside. See Norwood, supra note 77, at 148 n.10. Ogbu's theories are highly contested. See PRUDENCE L. CARTER, KEEPIN' IT REAL: SCHOOL SUCCESS BEYOND BLACK AND WHITE 53, 58 (2005) (explaining that "resistance to 'acting white' for many African American students is about maintaining cultural identity, not about embracing or rejecting the dominant standards of achievement");
161. THERESA PERRY, CLAUDE STEELE, & ASA G. HILLIARD III, YOUNG, GIFTED, AND BLACK: PROMOTING HIGH ACHIEVEMENT AMONG AFRICAN-AMERICAN STUDENTS 62-63 (2003) [hereinafter YOUNG, GIFTED, AND BLACK] (critiquing Ogbu's theories). Some critics point to the successes of Caribbean Blacks to contend that the situation of many African-Americans is a result of black American culture, hot racism. However, as indicated by the experience of second- and third-generation black Caribbeans and Africans in Canada, who have the same status in Canada as legacy Blacks have in the United States, and of the second-plus generation of black West Indians in the United States, much more is at work here than culture; racism plays a big role. See infra Part II and notes 187, 199-201 and accompanying text.
162. MASSEY ET AL., supra note 17, at 8.
163. Id.; see also Garcia, supra note 41, at 123 ("West Indians . . . see life in the United States as better than in their homeland.").
164. Gladwell, supra note 87; see also Inniss, supra note 49, at 123 (asserting that West Indians' "hopefulness . . . fueled a move into the middle class").
165. See Suzanne Model, West Indian Prosperity: Fact or Fiction?, 42 SOC. PROBS. 535, 538 (1995) ("Another qualification to traditional selectivity is that achievement motivation is less marked in persons who relocate for non-economic reasons, such as to escape political oppression or to reunite family members."). Many second-generation Blacks grow up with an awareness of the sacrifices their parents made to leave their home countries and seek a better education and standard of living in the United States. See Chacko, supra note 23, at 500 (describing how cultural continuity is transmitted from the first to the second generation).
166. Haynie, supra note 15, at 50-51; Model, supra note 96, at 538.
167. See Hing, supra note 38, at 240-42; see also supra note 39 and accompanying text. Bill Hing has written the following about the disproportionate percentage of Africans who have entered the United States under an occupational preference: Of the 7614 Africans who immigrated in 1990 in other relative and occupational categories subject to quotas, thirty percent entered in an occupational preference. By way of comparison, the total quota immigrants from Mexico, 19,986, mainland China, 19,795, the Philippines, 19,588, India, 19,157, Korea, 18,624, and Vietnam, 8829, each outnumbered the sum of quota immigrants from the entire continent of Africa. The highest proportion of occupational visas in any of those countries was 17.1 percent for Korea. Mexico was under ten percent. Hing, supra note 38, at 242; see also Kalmijn, supra note 23, at 914; Roots, supra note 32, at 70 (quoting sociologist Mary Waters as stating that "[a]n immigrant population will do better as compared with a native population, because with immigrants, you have a selected group"). As my colleague David Baldus wisely pointed out, the distinction between voluntary and involuntary immigrants also applies to white Americans and African-Americans or legacy Blacks. He asserted, [T]he voluntary and involuntary immigrant theme . . . relates to a distinction I have always drawn between what appears to have been a random involuntary sample of an entire population, which slavery represented, and the voluntary self selected sample of European immigrants. Given the energy and resourcefulness it took to be a voluntary immigrant, it should come as no surprise that over time, the descendents of European immigrants might, on average, out perform the descendents of African slaves at some levels. E-mail from David C. Baldus, Joseph B. Tye Professor of Law, University of Iowa College of Law, to Angela Onwuachi-Willig, Associate Professor of Law, University of Iowa College of Law (June 11, 2007, 6:48 P.M. CST).
168. Page, supra note 49, at B7 ("That immigrant optimism is not unknown to black folks born right here in the USA. Many of us saw it drive our parents or grandparents in their desperate migrations from the rural South to the urban industrial North during the last century."); M. Patricia Fernandez-Kelly & Richard Schauffler, Divided Fates: Immigrant Children in a Restructured U.S. Economy, 28 INT'L MIGRATION REV. 662 (1994) (noting that during the first half of the twentieth century, African-American migrants from the North to South "shared commonalities in profile and expectations with migrants from lands afar"); see also Model, supra note 96, at 538 (referring to studies that show that "southern-born African Americans residing in the North had higher incomes and lower rates of unemployment and welfare dependency than the northern born").
169. See Angela Onwuachi-Willig, supra note 4, at 157-58; see also Brest & Oshige, supra note 4, at 869 (stating that young members of an intractably disadvantaged group often come to believe that "regardless of their efforts, group members simply cannot succeed"); Sarah Stroud, The Aim of Affirmative Action, 25 SOC. THEORY & PRAC. 385, 386-92 (1999) (arguing that affirmative action can "expand people's sense of what is possible for them, so that they can subject the full range of options to the kind of individualized scrutiny that is appropriate to career decisions and goals"). Prior to the Civil Rights era, the problem of role modeling was not as dramatic because residential segregation ensured that poor black Americans also lived next to middle-class and upper-class black Americans, resulting in the availability of role models for poor as well as privileged black children within their own communities.
170. See Olati Johnson, Book Note, Integrating the "Underclass": Confronting America's Enduring Apartheid. 47 STAN. L. REV. 787, 807-08 (1995)
171. (reviewing DOUGLAS A. MASSEY & NANCY A. DENTON, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (1995)).
172. Kalmijn, supra note 23. at 914; Rong & Brown, supra note 23, at 555-56; Mary C. Waters, The Role of Lineage in Identity Formation Among Black Americans. 14 QUALITATIVE SOC. 57, 69-73 (1991).
173. See Brest & Oshige, supra note 4, at 869 (describing the importance of same-race role models); Stroud, supra note 100, at 386-92 (same).
174. MARY C. WATERS, BLACK IDENTITIES: WEST INDIAN IMMIGRANT DREAMS AND AMERICAN REALITIES 71 (1999).
175. Massey et al., supra note 19, at 258.
176. See id. at 246. First- and second-generation West Indians and African-Americans tend to live in more segregated environments than do first- and second-generation Africans. Id.
177. HEATHER M. DALMAGE, TRIPPING ON THE COLOR LINE: BLACK-WHITE MULTIRACIAL FAMILIES IN A RACIALLY DIVIDED WORLD 95 (2000) (asserting that black-white mixed-race families "desire racially mixed neighborhoods because there they can have a sense of safety and comfort and not face repeated acts of border patrolling and racism");
178. Steven R. Holloway et al., Partnering 'Out' and Fitting In: Residential Segregation and the Neighbourhood Contexts of Mixed-Race Households, 11 POPULATION, SPACE & PLACE 299, 319-20 (2005) ("All mixed-race household types are more likely to live in diverse neighbourhood settings than same-race households. . . . [M]ixed-race households tend to experience higher levels of neighbourhood racial diversity than white same-race households, but lower levels than non-white same-race households. Black-white pairings are an exception - they live in more diverse neighbourhoods than the black population in general." (emphasis added));
179. Barbara Pement, Mixed Messages: Get Personal About Interracial Marriage, CORNERSTONEMAG.COM, at http://www.cornerstonemag.com/ features/iss111/mixed.htm (referring to a black-white couple, which indicated that it was important to them that there was "some ethnic diversity among inhabitants" in their neighborhood). These articles resonate with my own personal experience. As an interracial couple, my husband and I, where possible, seek out diverse neighborhoods in which to live. Indeed, a search on informational websites about cities is certain to reveal questions from interracial couples asking about the diversity of an area and openness to interracial couples.
180. See, e.g., Philly for Interracial Couples?, Feb. 26, 2007, at http://www.citay-data.com/forum/philadelphia/48988-philly-interracial-couples-2. html.
181. Haynie, supra note 15, at 44; see also Chacko, supra note 23, at 500 (describing the same diversity of friends among youth of recent Ethiopian descent in the United States); Massey et al., supra note 19, at 261 (noting that first- and second-generation Blacks have a more heterogeneous group of friends); cf. Chalsa M. Loo & Gary Rolison, Alienation of Ethnic Minority Students at a Predominantly White University, 57 J. HIGHER EDUC. 58, 65-72 (1986) (reporting their findings "that the sociocultural alienation of minority students in a predominantly white university is greater than that of white students and that feelings of cultural domination and ethnic isolation are the forms in which this alienation is experienced").
182. Haynie, supra note 15, at 46.
183. Id. at 44.
184. KERRY ANN ROCKQUEMORE & DAVID L. BRUNSMA, BEYOND BLACK: BIRACIAL IDENTITY IN AMERICA 60 (2002).
185. Massey et al., supra note 19, at 252.
186. See, e.g., Walter R. Allen & Daniel Solorzano, Affirmative Action, Educational Equity and Campus Racial Climate: A Case Study of the University of Michigan Law School, 12 LA RAZA L.J. 237, 275-303 (2001) (describing how the findings of one such study supports this conclusion).
187. See generally Richard D. Shingles, College as a Source of Black Alienation, 9 J. BLACK STUDS. 267 (1979) (listing the results of several studies);
188. Brian D. Smedley et al., Minority-Status Stresses and the College Adjustment of Ethnic Minority Freshmen, 64 J. HIGHER EDUC. 434, 434-49 (1993) (describing how the findings of one such study support this conclusion).
189. See supra notes 43-45 and accompanying text.
190. Elizabeth A. Klonoff & Hope Landrine, Is Skin Color a Marker for Racial Discrimination?: Explaining the Skin Color-Hypertension Relationship, 23 J. BEHAV. MED. 329, 336 (2000).
191. Inniss, supra note 49, at 125 (referring to this phenomenon as the "Colin Powell Syndrome"). Professor Lani Guinier has claimed that "[t]hose from abroad 'have a different understanding of what it means to be black'" and "they are less vulnerable to being viewed through the lens of a negative stereotype." Roots, supra note 32, at 70. Nathan Hare, founder of the very first ethnic studies program, which was at San Francisco State University, proclaimed: I have nothing against immigrants, but there are sociological realities we have to look at. . . . They don't have the stereotypes of them being lazy and so on. . . . We [African-Americans] are the ex-slaves and inhabitants of the slums. They (immigrants) are coming in without that (baggage). Johnson, supra note 11, at A1.
192. The term "model minority" is usually used in reference to Asian Americans. "The model minority stereotype posits Asian-Americans as uniquely successful among minority groups. They work hard, save money, and achieve material success, while their children study equally hard and earn high marks in school." Jean Shin, The Asian American Closet, 11 ASIAN L.J. 1, 3 (2004);
193. see also Frank H. Wu, Changing America, Three Arguments About Asian Americans and the Law, 45 AM. U. L. REV. 811, 813-14 (1996) (challenging the myth of the model minority). The model minority myth can be very damaging to those people of color who fall both within it and outside of it. As Professor Berta Esperanza Hernández-Truyol explained about the negative effects of this myth on some Asian Americans, Blacks, and Latina/os: Asians generally are given this model minority label that has been used to create a wedge between Asian communities and other communities of color - Black and Latina/o. The affirmative action debate suggests that Asians will be harmed by being denied jobs or admission to schools so as to accept other "less qualified" minorities. That divisive label, thinly veiled as a compliment, also has been used to refer to Cubans with the unsavory consequences of creating a wedge between Cubans, on the one hand, and other Latinas/os and Blacks on the other. Such "model minority" labeling has the negative and deleterious effects of denying the reality of discrimination against Asian/Pacific Americans and Cubans and simultaneously legitimizing the oppression of other persons of color. For example, the myth detracts attention from segments of the Asian community that have serious economic and educational disadvantages, like the Hmong peoples. Moreover, this divisiveness allows the race-conscious normativos/as to claim a type of moral high ground by wrapping their nativist sentiments in the blanket of Asian/Pacific American and Cuban worries and concerns. This also hurts other communities of color who are "blamed" for their own impoverishment - economic, educational, and moral, for their lack of skills attainment, and for not being as successful as others. This situation, of course, translates to some communities not being hard-working enough, or not intelligent enough, or not trying hard enough, or some other mythical pretext that becomes transmogrified into the master narrative's (and popular culture's) incontrovertible, factual truth.
194. Berta Esperanza Hernández-Truyol, Building Bridges III - Personal Narratives, Incoherent Paradigms, and Plural Citizens, 19 CHICANO-LATINO L. REV. 303, 327-28 (1998);
195. see also Robert S. Chang, Toward an Asian American Legal Scholarship: Critical Race Theory, Post-Structuralism, and Narrative Space, 81 CAL. L. REV. 1243, 1264 (1993) ("In addition to hurting Asian Americans, the model minority myth works a dual harm by hurting other racial minorities and poor whites who are blamed for not being successful like Asian Americans.").
196. WATERS, supra note 103, at 116-23.
197. Model, supra note 96, at 537.
198. Gladwell, supra note 87 (citing a study by Professor Mary Waters of Harvard University).
199. Id. ("The example of West Indians as 'good' blacks makes the old blanket prejudice against American blacks all the easier to express."); Thomas Sowell, Three Black Histories, in ESSAYS AND DATA ON AMERICAN ETHNIC GROUPS 7, 49 (Thomas Sowell ed., 1978) (arguing that the relative success of Caribbeans in the United States "undermines the explanatory power of current white discrimination as a cause of current black poverty").
200. Sowell, supra note 120, at 43-49.
201. Gladwell, supra note 87.
202. WATERS, supra note 103, at 5, 64-76; see Gladwell, supra note 87 ("Their advantage depends on their remaining outsiders, on remaining unfamiliar, on being distinct by custom, culture, and language from the American blacks they would otherwise resemble."); see also Fernandez-Kelly & Schauffler, supra note 99, at 675 (noting that the success of study subjects, including second-generation black students with roots in Haiti, was "rooted in deliberate attempts [by the students] to disassociate themselves from the stigma imposed upon black populations in the United States through an affirmation of their national identity and their religious fervor"). Malcolm Gladwell has explained that "West Indians cannot escape the fact that their success has come, to some extent, at the expense of American blacks, and that as they have noisily differentiated themselves from African-Americans - promoting the stereotype of themselves as the good blacks - they have made it easier for whites to join in." Gladwell, supra note 87; see also Chacko, supra note 23, at 494 (noting that "[f]irst-generation Black immigrants overwhelmingly emphasized their ethnic identities and national origins, underplaying the more generic identification as Black"); Fernandez-Kelly & Schauffler, supra note 99, at 682 (noting the same actions among Nicaraguan students who hold fast to their separate immigrant collective identity in order to protect themselves from negative stereotypes of other Latina/o groups). As Professor Mary Waters of Harvard University asserted, in some instances, it is immigrant Blacks who "voice some of the worst stereotypes and negative perceptions of American blacks imaginable." Waters, supra note 101, at 69; see also WATERS, supra note 103, at 64-76 (quoting a series of negative comments about African-Americans by West Indians in New York).
203. Waters, supra note 101, at 70; see also Dodoo, supra note 84, at 531 (noting that "there is evidence that black immigrants emphasize their foreign origins because they perceive that it conveys an advantage").
204. Claude Steele, Stereotype Threat and African-American Student Achievement, in YOUNG, GIFTED, AND BLACK, supra note 92, at 109-30;
205. Claude Steele, Expert Report, Reports Submitted on Behalf of the University of Michigan, 5 MICH. J. RACE & L. 439, 440, 444-46 (1999) [hereinafter Expert].
206. See Steele, Expert, supra note 125, at 445, 447 (also noting that "Black students performing a cognitive task under stereotype had elevated blood pressure"); see also id. at 114 (reporting that "Blacks performed a full standard deviation lower than Whites under the stereotype threat of the test being 'diagnostic' of their intellectual ability"). By changing the function of the test, Professor Steele "changed the meaning of the situation. It told Black participants that the racial stereotype about their ability was irrelevant to their performance on this particular task." Id. at 445; see also id. at 117 (describing the same effects of stereotype threat on white male students - who were not expected to have a sense of group inferiority - when they were given a difficult math ability test with a comment that Asian-American students generally performed better than white students on the test).
207. McNamee, supra note 29, at 10 (quoting Lani Guinier, Our Preference for the Privileged, BOSTON GLOBE, July 9, 2004, at A13); see also Rong & Brown, supra note 23, at 556 ("Black immigrants tend to see themselves as immigrants first, and thus may feel their immigrant nationality protects them from many negative stereotypes of Blacks in the United States and helps their children from becoming members of less educationally motivated groups in school" and "reject an undistinguished Black identity.").
208. Kay Deaux et al., Becoming American: Stereotype Threat Effects in Black Immigrant Groups 22, 25-26 (unpublished manuscript, on file with author) (finding that first-generation West Indian immigrants are much less affected by stereotype threat because "first-generation students are more positive in their appraisal, believing others to view West Indians more favorably than do the second-generation students"). Because stereotype threat is "cued by the mere recognition that a negative group stereotype could apply to oneself in a given situation," it generally has no effect on first-generation Blacks, meaning those who tend not to identify with the stereotype-relevant domain - here, African-Americans. See Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, in PROMISE AND DILEMMA: PERSPECTIVES ON RACIAL DIVERSITY AND HIGHER EDUCATION 101-03 (Eugene Y. Lowe, Jr. ed. 1999). But see id. at 114 (noting a similar effect with stereotype threat with West Indians in Great Britain).
209. Kay Deaux, A Nation of Immigrants: Living Our Legacy, 62 J. SOC. ISSUES 633, 646 (2006) (reporting that while stereotype threat seemed to have less of an effect on first-generation Blacks, "second-generation [West Indian] students showed a significant performance decrement" when "the test stressed academic ability and presumably made stereotypes salient").
210. Cf. Massey et al., supra note 19, at 262 (noting that "differences . . . detected between black freshmen of immigrant and native origins have been few and relatively modest").
211. Some schools already consider the ethnic backgrounds of student applicants, but those schools consider such background for only Asian-American and Latina/o students. For example, the University of Washington-Seattle asks for ancestral background information related to nine different Latina/o ethnicities, fifteen different Asian ethnicities, and nine different Pacific Islander ethnicities.
212. While discussing policy implications of her study on Harvard College, former Harvard student Haynie argued in her paper that "[b]ecause all black students applying to [elite] schools are in essence competing for the same limited number of places," colleges and universities should begin to take the ethnic heritages of each of their black applicants into account. Haynie, supra note 15, at 55. Haynie is correct to note that, as a general matter, spots for students of all races are limited at selective colleges and universities. These schools cannot accept and enroll all qualified students because of limited class spots. Furthermore, while I agree with Haynie that colleges must do more to reach out to legacy Blacks, see supra Part I, I note that her statement about competition among Blacks is problematic in itself because it is accepts the fact that the "spots" for Blacks are limited in the first place without challenging the low representation of Blacks on college and university campuses. Accord Robert S. Chang, Reverse Racism!: Affirmative Action, the Family, and the Dream That Is America, 23 HASTINGS CONST. L.Q. 1115, 1127 (1996) ("Asian Americans are pitted against Blacks and Hispanics as if there are only a certain number of seats available for minority students. This is true only if a certain number of seats are reserved for white students.").
213. Massey et al., supra note 19. at 262.
214. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
215. Id. at 314-15.
216. Grutter v. Bollinger, 539 U.S. 306, 333 (2003); see Brest, supra note 60, at 684-85 (describing how black students "brought an important 'reality' check to discussions of employment and housing discrimination and racial profiling by the police" in the classroom); Devon W. Carbado & Mitu Gulati, What Exactly Is Racial Diversity?, 91 CAL. L. REV. 1149, 1158-61 (2003) (detailing how a person's viewpoint is influenced by racial identity and how diversity may shape the content of discussions); Chemerinsky, supra note 28, at 17 ("The reality is that race matters enormously in the classroom. A person's race powerfully affects how he or she experiences the world. A discussion of race in a political science class is vastly different in an all-white classroom than it is in a racially diverse classroom.").
217. Grutter, 539 U.S. at 329-36; see also Dorothy A. Brown, Taking Grutter Seriously: Getting Beyond the Numbers, 43 HOUS. L. REV. 1, 18-20, 28-30 (2006) (discussing the benefits of true dialogue and interaction among diverse groups of students and arguing, under a diversity rationale, that Critical Race Theory should be integrated into all aspects of the curriculum at law schools); Jones, supra note 65, at 209 (noting how Justice O'Connor "accept[ed] that homogeneity does not produce the best learning experiences and that solely admitting persons with the strongest intellectual capacities or the best records of scholarly achievement will not create the most intellectually stimulating and rigorous environments").
218. Grutter, 539 U.S. at 319-20, 329-33.
219. See id. at 329-36; see also Brest & Oshige, supra note 4, at 862 (asserting that "the opportunity to encounter people from different backgrounds and cultures allows students to explore the nature of those differences and to learn to communicate across the boundaries they create").
220. See Grutter, 539 U.S. at 329-36; see also Brest & Oshige, supra note 4, at 862 (exploring how diversity benefits cross-racial communication).
221. Grutter, 539 U.S. at 319-20 (quoting Dean Kent Syverud of Washington University in St. Louis School of Law); see also Jones, supra note 65, at 181 ("The presence of individuals from historically disadvantaged groups is critical to equality efforts because the experience and viewpoints of these groups can assist in overcoming structures of domination in the U.S. and to accomplish many of the other goals of substantive diversity.").
222. Onwuachi-Willig, supra note 4, at 128; see also Edward M. Chen, The Judiciary, Diversity, and Justice for All, 10 ASIAN L.J. 127, 134 (2003) ("A further harm of segregation and underrepresentation is the perpetuation of detrimental stereotypes, continuing the myth that certain groups are inherently incapable of attaining certain accomplishments or performing certain jobs."); Carbado & Gulati, supra note 135, at 1155 (same).
223. Johnson, supra note 11, at A1. See generally BEVERLY DANIEL TATUM, WHY ARE ALL THE BLACK KIDS SITTING TOGETHER IN THE CAFETERIA? AND OTHER CONVERSATIONS ABOUT RACE (1997) (explaining why minority students of the same race form bonds with each other on predominantly white campuses).
224. See Brown, supra note 136, at 29 (noting that "studies show that underrepresented racial and ethnic minorities 'find the college environment more comfortable, experience less stereotyping, and are able to achieve progress when they are adequately represented on college campuses' in numbers enabling them to move beyond their token status"); Erwin Chemerinsky, What Would Be the Impact of Eliminating Affirmative Action?, 27 GOLDEN GATE U. L. REV. 313, 320 (1997) (noting that "African-American students choose to go elsewhere where there's more of a group for them to be a part of"). It is important to note that, in some circumstances, disproportionate percentages of first- and second-generation Blacks and mixed-race students on campus can actually add to the feelings of alienation on campus by legacy Blacks. For example, Aisha Haynie recounted that such disproportionate representations made her, at times, feel more alienated at Harvard College because so many people assumed that she was of Caribbean or African descent. In essence, the assumption by many was that a Black at Harvard College - one who could reach that level of educational attainment - could not be a descendant or legacy Black, but instead must be a first- or second-generation Black. Specifically, Haynie explained that her research was prompted by the reaction from her black classmates, who, when she told them that she was not from the West Indies or Africa, but instead from the Carolinas,
225. See supra note 136 and accompanying text.
226. Grutter, 539 U.S. at 320 (declaring that one benefit of diversity is the way in which it shows that there is no "'minority viewpoint' but rather a variety of viewpoints among minority students").
227. McNamee. supra note 29, at 10.
228. Roots, supra note 32, at 70.
229. See, e.g., Antonin Scalia, The Disease as Cure: "In Order to Get Beyond Racism, We Must First Take Account of Race," 1979 WASH. U. L.Q. 147, 153-54 ("I am not willing to prefer the son of a prosperous and well-educated black doctor or lawyer - solely because of his race - to the son of a recent refugee from Eastern Europe who is working as a manual laborer to get his family ahead."). But see Morton, supra note 11, at 1092, 1118, 1123-25 (noting how "affirmative action was never designed to combat indigence" but disadvantages due to race).
230. See Brest & Oshige, supra note 4, at 866 ("Affirmative action seeks to correct the injuries inflicted on a group by racial discrimination."); Morton, supra note 11, at 1123-25 ("There is nothing in the history of affirmative action, however, that would suggest that race was used as a proxy or that class was originally the basis for such programs. . . . Rather, it was designed to equalize access to areas from which blacks were traditionally excluded.").
231. See Harris & Narayan, supra note 59, at 9 ("[E]ven slavery and Jim Crow, which had devastating economic impacts on Black Americans, were more than merely unjust economic arrangements; they created and perpetuated a variety of attitudes and policies that are constitutive elements of racial discrimination in the United States today."); Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1855 (1996) (describing one view in which "class is said to interact with race, gender, and ethnicity (and perhaps other elements of social identity, such as place of residence) in interlocking and mutually defining structures, and it is their interaction that is seen to shape both consciousness and life chances" (footnotes omitted)).
232. See WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 115, 163-64 (1987) (arguing that minorities from the most advantaged families are likely to be overrepresented in programs that grant preferential treatment to minorities generally).
233. See infra notes 165-78 and accompanying text. Again, I note that, in this paper, I focus primarily on arguments as they are applied to and against first- and second-generation Blacks in debates about affirmative action. Perhaps because of the way in which many mixed raced individuals descend from black American slaves, issues are rarely raised as to the inclusion of biracial students in affirmative-action programs.
234. See Massey et al., supra note 19, at 256 ("With the exception of parental education, none of the measures of socioeconomic background [employment rates, income, and wealth] differ by immigrant status.").
235. See generally Onwuachi-Willig & Barnes, supra note 70.
236. Rimer & Arenson, supra note 13, at A1.
237. See Morton, supra note 11, at 1132 ("It is a grave mistake, however, to [think] that because of a middle class background, [a] black child has not been victimized by past and present racial discrimination."); Camille A. Nelson, Breaking the Camel's Back: A Consideration of Mitigatory Criminal Defenses and Racism-Related Mental Illness, 9 MICH. J. RACE & L. 77, 84 (2003) ("[D]scrimination is not limited to low-income or uneducated Blacks, but is also reported by Black middle-class professionals.").
238. See generally ELLIS COSE, THE RAGE OF A PRIVILEGED CLASS (1993) (describing various forms of discrimination against middle and upper-class Blacks).
239. See DERRICK BELL, FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM 3 (1992) ("Despite undeniable progress for many, no African Americans are insulated from incidents of racial discrimination. Our careers, even our lives, are threatened because of our color. Even the most successful of us are haunted by the plight of our less fortunate brethren who struggle for existence in what some social scientists call the 'underclass.'").
240. See supra text accompanying notes 115-19 (discussing studies in which employers expressed preference for West Indian employees over African-American employees).
241. Malamud, supra note 150, at 1893 (citations omitted).
242. Waters, supra note 101, at 61.
243. See Rong & Brown, supra note 23, at 556 ("Racism and discrimination prevent many Black immigrants from being incorporated into mainstream America."); see also Malamud, supra note 11, at 967-88 (describing the discrimination and disadvantage that even middle-class Blacks face in housing, work, and education).
244. Devon W. Carbado, (E)racing the Fourth Amendment, 100 MICH. L. REV. 946, 947-50 (2002).
245. Id.; see also Michele Goodwin, Race As Proxy: An Introduction, 53 DEPAUL L. REV. 931, 933 (2004) ("Color is linked with laziness, incompetence, and hostility, as well as disfavored political viewpoints, such as a lack of patriotism and disloyalty to the United States.").
246. Carbado, supra note 162, at 947-50; (emphasis added and footnotes omitted); see also Baynes, supra note 25, at 124-25 ("I am 'Black' in the American context, I stay Black, and (even if I wanted to, which I do not) I am physically unable to lose my racial identity." (footnotes omitted)); Inniss, supra note 49, at 125-26 (describing claims about the effect of American racism by Jamaican immigrant Colin Ferguson, who violently shot commuters on a subway in New York). A young Ethiopian immigrant student detailed similar feelings about discovering she was black through American racism. She stated: During the first couple of years [after arriving in the United States], I considered myself only Ethiopian. Then I started thinking of myself as African. As time passed . . . I interacted more with [native] Blacks and other Americans. This country made me more aware of my race. I was Blacker than I thought I was! Chacko, supra note 23, at 498 (alterations in original and emphasis added).
247. See Carbado, supra note 162, at 947-50; see also Paulette Caldwell, The Content of Our Characterizations, 5 MICH. J. RACE & L. 53, 84-85 (1999) ("Migrants to the United States, voluntary and involuntary alike, are either racialized or ethnicized, sometimes on initial arrival, other times over the passage of time.");
248. Kevin R. Johnson, Immigration and Latino Identity, 19 CHICANO-LATINO L. REV. 197, 206 (1998) ("Racism doesn't recognize the distinctions between Mexican-Americans and Mexican immigrants. To dominant society, a 'foreigner' is a 'foreigner.' "); cf. COSE, supra note 154, at 56-72 (describing various forms of discrimination against middle and upper-class Blacks);
249. Richard R.W. Brooks, Incorporating Race, 106 COLUM. L. REV. 2023, 2034-35 (2006) (describing how even corporate persons and businesses "seek to limit the perception of their enterprises as 'black' ");
250. Ediberto Roman, The Citizenship Dialectic, 20 GEO. IMMIGR. L.J. 557, 595-96 (2006) (acknowledging the more subtle forms of subordination of Blacks and how "African-Americans, irrespective of their academic or financial achievements, are repeatedly reminded of their inequality in society").
251. Kalmijn, supra note 23, at 913; see also Harris & Narayan, supra note 59, at 9 (asserting that "policies that only address class-based inequalities will not adequately address those that stem from race"); cf. Brest & Oshige, supra note 4, at 885 (noting, for example, with Latina/os, that "[a]lthough Cubans are among the wealthiest and best educated of all the Latino groups, their median family income still lags behind that of whites" and the "poverty rate for American-born Cubans is 13.5 percent compared to 8.5 percent for whites").
252. Massey et al., supra note 19, at 257 tbl.3.
253. See Abdi Kusow, Africa: East, in THE NEW AMERICANS 295, supra note 41, at 299 tbl.2. According to this same data set, Asian immigrants generally earn $9000 more than white immigrants. Id.
254. African Immigrants, supra note 86, at 60-61 (noting that African immigrants were the most highly educated immigrant group in the United States with 48.9 percent of such immigrants having a college degree).
255. Id. Also, just as some legacy Blacks may grow up middle-class or upper middle-class, some first- and second-generation Blacks grow up poor or working-class and isolated from extensive networks that may be found on the East Coast. For example, I am a non-legacy Black - a second-generation Nigerian-American, but I grew up in various poor areas surrounded by legacy Blacks and isolated from other Nigerian-Americans and also, to some extent, isolated from African-Americans or legacy Blacks because of generally held negative perceptions of Africans. See infra notes 223-29.
256. Massey et al., supra note 19, at 257 tbl.3; see also Dorothy A. Brown, Race, Class, and Gender Essentialism in Tax Literature: The Joint Return, 54 WASH. & LEE L. REV. 1469, 1501-04 (1997) (highlighting that black married couples are more likely to be equal wage earners).
257. Kusow, supra note 166, at 299 tbl.2. Latina/os were at 8.8 percent unemployment and 26 percent of life in poverty, and Asians were at 4.6 percent unemployment and 13.9 percent life in poverty. Id.
258. Massey et al., supra note 19, at 257 tbl. 3.
259. Id.
260. Id.
261. Id.
262. Id. at 254-55 tbl.2 ("As would be expected, differences between groups stemmed from the absence of the father rather than the mother.").
263. Id. at 258-59 tbl.4 (asserting that the fact that first- and second-generation Blacks are more likely to attend private school enables them to escape more exposure to violence than legacy Blacks).
264. For example, one white male manager expressed his preference between the groups as follows: "If I had one position open and it was a West Indian versus an American black, I'd go with the West Indian . . . their reliability, their willingness to do the job . . . they have a different drive than American blacks." Model, supra note 96, at 535 (alterations in original and emphasis added); see also supra notes 118-19 and accompanying text. Professor Pat Chew reported similar findings with the idea of Asian-Americans as the model minority. She reported that, although Whites in a survey viewed Asian-Americans more favorably than Blacks or Latina/os, they did not view Asian-Americans as "model Americans." Pat K. Chew, Asian-Americans: The "Reticent Minority"and Their Paradoxes, 36 WM. & MARY L. REV. 1, 32-33 (1994). She wrote: Consistent with the model minority image, the study found that whites perceived Asian Americans more positively on these traits than African Americans and Latinos. Significantly, however, whites did not view Asian Americans as positively as they view themselves. Asian Americans were considered less intelligent, more violence-prone, lazier, and more likely to prefer living off welfare. Thus, whites apparently considered Asian Americans superior to other minorities but inferior to whites. While whites believed Asian Americans were model "minorities," they did not yet perceive them as equals, in other words, as "model Americans." Id. (footnotes omitted).
265. See infra notes 183-201 and accompanying text.
266. See supra note 179 and infra notes 183-201 and accompanying text.
267. See supra note 116 (discussing the "model minority" stereotype). The image of the "model minority," however, has also proven to be damaging in other respects because it works to mask the many ways in which Asian-Americans are discriminated against in the United States. See Brest & Oshige, supra note 4, at 894 (describing how the model minority myth obscures discrimination against Asian-Americans).
268. See Chacko, supra note 23, at 493 (noting studies that show that some groups such as Eastern European and Russian Jews and some Asians, such as the Chinese and Korean, follow "a path of upward mobility and assimilation into the White middle class"); see also Deaux, supra note 128, at 647 (noting that for Asian students, there is no shift between generations on the effects of stereotype threat); cf. Xianglei Chen, Educational Achievement of Asian-American Students: A Generational Perspective (1996) (unpublished dissertation) (finding that while the first and second generation of Asian-American students are advantaged over Whites in terms of parents' educational background and expectations and the students' own learning attitudes and behaviors, the third generation Asian-American students are similar to whites in terms of family background and learning characteristics).
269. Kalmijn, supra note 23, at 912; see also Chacko, supra note 23, at 493 (describing assimilation theory); Model, supra note 96, at 548 ("West Indians assimilate economically to the black population, not the white.").
270. Rong & Brown, supra note 23, at 538-39; Deaux et al., supra note 128, at 4-5 (asserting that the decline in education and occupational achievement from the first to second generation for West Indians is "in contrast to the linear process of assimilation characterized by earlier generations of White immigrants"); see also WATERS, supra note 103, at 5 (noting that "when West Indians lose their distinctiveness as immigrants or ethnics they become not just Americans, but black Americans" and "[g]iven the ongoing prejudice and discrimination in American society, this represents downward mobility for immigrants and their children").
271. George E. Fouron & Nina Glick-Schiller, The Generation of Identity: Redefining the Second Generation Within a Transnational Social Field, in THE CHANGING FACE OF HOME, supra note 12, at 168, 175.
272. Model, supra note 96, at 536-37; Rong & Brown, supra note 23, at 543-44; see also Ruben G. Rumbaut, The Crucible Within: Ethnic Identity, Self-Esteem, and Segmented Assimilation Among Children of Immigrants, 28 INT'L MIGRATION REV. 748, 765 (1994) (noting that although Jamaicans often sustain a national origin identity into the second generation, that percentage "drops from 63 percent among those born in Jamaica to 23 percent among those born in the United States"). Again, studies have shown that as early as the second generation, immigrant Blacks are affected by stereotype threat. See supra note 128 and accompanying text.
273. Rong & Brown, supra note 23, at 556 ("For many Black immigrants, assimilation to the culture of inner-city native Blacks may lead to permanent subordination and disadvantage."); Kalmijn, supra note 23, at 927 (same). An article in the Journal of Blacks in Higher Education explained the following among second-generation black youth in the United States: [T]he ambition that propelled Caribbean parents to immigrate to America is rapidly quashed in second-generation children by the repressive forces of daily life in the American ghetto. For the most part, these young second-generation West Indians usually do not possess the favorable speaking accents, which helped their parents to find good jobs in the American economic mainstream. For most purposes, these students are no longer viewed and treated as hard-working and highly motivated West Indian immigrants. They are simply black Americans. For these second-generation immigrants, the effort to move ahead in American society means that because of the powerful influences attached to the color of their skin they will be subject to the same levels of racism and discrimination as the great-great-great grandchildren of African-born slaves who were forcibly brought to these shores in the eighteenth and nineteenth centuries. Educational Aspirations of Children of Black Caribbean Immigrants Surrender to the Forces of the Ghetto, 14 J. BLACKS HIGHER EDUC. 46, 47 (1996-97).
274. Kalmijn, supra note 23, at 912, 915 ("Caribbean blacks thus represent a case where cultural assimilation may hamper rather than improve their socioeconomic achievement."); see also Rong & Brown, supra note 23, at 541, 556 ("This process of racial socialization into oppositional culture among second-generation immigrants may disrupt the plans for intergenerational upward mobility of many first-generation parents who are moving ahead economically.").
275. Kalmijn, supra note 23, at 914; see also Gladwell, supra note 87 (describing racism against West Indian Blacks in Canada as partially due to the fact that, unlike West Indian-Americans, such black Canadians do not have a group such as African-Americans to keep them from being placed at the bottom). As Professor Lolita Buckner Inniss has asserted, "The general failure of assimilation has made the black American experience unique among immigrant experiences in that it is an unremitting immigrant experience - an experience of continued exclusion." Inniss, supra note 49, at 85-86.
276. WATERS, supra note 103, at 7. Studies demonstrate that, for second-generation Blacks, lower self-esteem is associated with being born in the United States, not with being born, for example, in the West Indies. Rumbaut, supra note 187, at 783.
277. See Deaux, supra note 128, at 646-47 (describing the development of these effects).
278. Id. at 647.
279. Rong & Brown, supra note 23, at 548.
280. Id. at 549-51 tbl.3.
281. Id. For third and later generations of persons of European descent, the high school graduation rate fell from 65.7 percent to 60.1 percent. Id.
282. Id.
283. Id.
284. WATERS, supra note 103, at 8 (noting that over time "the distinct elements of West Indian culture the immigrants are most proud of - a willingness to work, a lack of attention to racialism, a high value on education, and strong interests in saving for the future - are undermined by the realities of life in the United States"); cf. Inniss, supra note 49, at 137 (asserting that there must be an "acknowledgement that native blacks are not assimilated because of their existence in a continuing immigrant status").
285. Inniss, supra note 49, at 137.
286. See Gladwell, supra note 87 (summarizing, in a study that found "positive discrimination," the perceived ability to distinguish "good" black job applicants from "bad" applicants among employers in Brooklyn's Red Hook neighborhood); see also Deaux, supra note 128, at 644 (noting the results of a study in which the credentials of white and black job applicants, who had been educated in either Canada or South Africa, were identical but evaluations revealed that "[t]he lowest ratings were given to Black applicants educated in South Africa, a condition that might be considered double stigmatization"). One author explained the phenomenon in Great Britain as follows: The role of race and the barriers it presents in U.S. and British societies suggest that West Indians in the United States are viewed in the context of black America. In this manner, they can be seen in a favorable light and can boost their ethnic pride. Yet in Great Britain, their achievements are measured against those of the white majority. Garcia, supra note 41, at 123.
287. See supra notes 166-78 and accompanying text.
288. See Harris & Narayan, supra note 59, at 11 ("Nevertheless, affirmative action policies serve important purposes - to partially counter the ways in which factors such as class, race, and gender function in our society to impede equal access, equal opportunity and equal treatment; and to foster a greater degree of inclusion of diverse Americans in a range of institutions and occupations than otherwise would exist.").
289. See R. Richard Banks, "Nondiscriminatory" Perpetuation of Racial Subordination, 76 B.U. L. REV. 669, 680 (1996)
290. (reviewing MELVIN L. SHAPIRO & OLIVER, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY (1995)) ("Blacks from upper-white-collar backgrounds are twice as likely as whites to 'fall all the way to lower-blue-collar positions.' The expectation that occupational success will enable one to secure a better life for one's children is more true for whites than for blacks."); Delgado, supra note 11, at 140 (noting that "Blacks fall from the middle class more often and suddenly").
291. John O. Calmore, Racialized Space and the Culture of Segregation: "Hewing a Stone of Hope From a Mountain of Despair, 143 U. PA. L. REV. 1233, 1247 (1995) (noting that 67.2 percent of Laotians, 65.5 percent of the Hmong, 46.2 percent of Cambodians, and 33.5 percent of Vietnamese in the United States live in poverty);
292. Angelo N. Ancheta, Community Lawyering, 81 CAL. L. REV. 1363, 1382 & n.56 (1993) (book review) (summarizing 1980 census data regarding poverty rates among Asian Pacific American subgroups).
293. See Kalmijn, supra note 23, at 917 ("Black Caribbeans have higher earnings than African American blacks. On the other hand, men from the French- and Spanish speaking Caribbean have lower earnings than African American blacks."); see also Dodoo, supra note 84, at 527-28, 541-43 (highlighting the British Caribbean advantage). The social status of French-speaking Caribbeans is further reflected in this country's immigration policies as they relate to Haitians. See Malissia Lennox, Note, Refugees, Racism, and Reparations: A Critique of the United States' Haitian Immigration Policy, 45 STAN. L. REV. 687, 699-23 (1993) (asserting that Haitian immigrants are systematically returned to Haiti);
294. Rick Bragg, Haitian Immigrants in U.S. Face a Wrenching Choice, N.Y. TIMES, Mar. 29, 2000, at A1 (describing the fate of 3000 illegal Haitian immigrants who are awaiting deportation and must face the difficult question of whether to take their children, who are American citizens, back with them).
295. See Kalmijn, supra note 23, at 918-20 (summarizing human capital differences among black subgroups).
296. Id. at 918.
297. Id. at 919 tbl.1, 928 (also noting that Spanish-speaking Caribbeans may face double discrimination because they are both black and Latina/o). Another study revealed that in 2000, African-Americans had an average of 12.4 years of schooling, while black Caribbeans and Africans had an average of 12.6 and fourteen years of schooling, respectively. Kusow, supra note 168, at 299 tbl.2. This same study revealed that Africans had a higher educational attainment than whites and Asians, who were at 13.5 and 13.9 years, respectively. Id.; see also Massey et al., supra note 19, at 246 (noting that Africans' educational attainment was at fourteen years while Whites were at 12.9 years and Asians were at 13.1 years).
298. Kalmijn, supra note 23, at 920-22, 921 tbl.2. Compared to Dominicans and Haitians, Jamaicans were much less likely to be laborers - 13.3 percent as compared to 30.1 percent of Dominicans and 29.8 percent of Haitians). RANSFORD W. PALMER, PILGRIMS FROM THE SUN: WEST INDIAN MIGRATION TO AMERICA 13 tbl.2.2 (1995).
299. Kalmijn, supra note 23, at 918-22: see also Chacko, supra note 23, at 502 (acknowledging how "[l]anguage proficiency [of English] assists Ethiopian immigrants to assimilate more rapidly than their peers from non-English-speaking countries"): Garcia, supra note 41, at 121 (noting that language adjustments for young Haitians affects their educational ability).
300. See Dodoo, supra note 84, at 533 (noting that "[w]hile African, and more so African-Americans, are most likely to live in the South, the modal residence for Caribbean immigrants is the Northeast"). As Haynie described, these extensive networks for first- and second-generation Blacks exists primarily on the East Coast. See Haynie, supra note 15, at 45 tbl.4 (reporting that 51.85 percent of black Caribbeans in her study were from the Northeast and 9.26 percent were from the Mid-Atlantic and that forty percent of black Africans in her study were from the Northeast and 24 percent were from the Mid-Atlantic).
301. Rong & Brown, supra note 23, at 557; see also Haynie, supra note 15, at 45-46 (describing networks that have enabled Caribbean black students to participate in high school preparatory programs in the Northeast that serve as feeder schools to elite northeast colleges and universities such as Harvard).
302. See Kusow, supra note 168, at 295-96: see also Elizabeth Heger Boyle & Fortunata Ghati Songora, Formal Legality and East African Immigrant Perceptions of the "War on Terror." 22 LAW & INEQ. 301, 305-06 (2004) (noting the shift to African immigration from East Africa in the mid-1990s).
303. Likewise, the Haitian immigrant population has changed since 1980. Whereas this population primarily consisted of professionals before 1980, the newer population of Haitians, if they are even allowed to remain in the United States, is not primarily professional. See Lisa Konczal & Alec Stepick. Haiti, in THE NEW AMERICANS 445, supra note 41, at 449-52.
304. JESSE MCKINNON, UNITED STATES CENSUS BUREAU, THE BLACK POPULATION IN THE UNITED STATES: MARCH 2002 1-2 (2003), http://www.census.gov/prod/2003pubs/p20-541.pdf.
305. I visited the websites for many of the elite colleges and universities identified in supra note 17. For many of them, the percentage of black students on campus was less than seven percent of the student population. In some cases, it was as low as three percent.
306. Steele, supra note 128, at 96-97; see also Dorothy A. Brown, The LSAT Sweepstakes, 2 J. GENDER RACE & JUST. 59, 63-64 (1998) (noting that the "LSAT overpredicts for minority students . . . [r]elative to whites with the same score, standardized tests actually overpredict the achievement that blacks will realize in law school," which suggests that environment in law schools plays more of a role than test scores for black law students).
307. The average white score was notably higher than both of these numbers at 1361. See Massey et al., supra note 19, at 260-61 tbl.5.
308. See id. at 263.
309. Id. at 263, 268.
310. Id. at 269.
311. See Rong & Brown, supra note 23, at 544 ("The dual status of being Black and immigrant causes some researchers to anticipate academic difficulties for these youths . . . . These researchers argue that Black immigrants face dual barriers of racism and xenophobia."); see also Fernandez-Kelly & Schauffler, supra note 99, at 675, 684 (finding in a study of second-generation students that "when Haitian children speak of discrimination, they are often thinking of the verbal and physical abuses they experience at the hands of native black Americans in their neighborhoods and schools").
312. Inniss, supra note 49, at 132 (emphasis added).
313. Fernandez-Kelly & Schauffler, supra note 99, at 684. In a strange way, this negative treatment of first- and second-generation Blacks by legacy Blacks can work to the advantage of first- and second-generation Blacks in terms of achieving traditional success because it prevents, as we see in the quotation above, their full integration into their host group.
314. Chacko, supra note 23, at 498. One young Ethiopian student described taunts from legacy Blacks, asserting "When you spoke, they would act like they didn't understand. They'd say, 'Speak English, man.'" Id. Another first-generation Black described resentment and discrimination she felt from African-Americans, noting: "[When I came to this country] I thought that [black Americans] were going to be very much like me, that they were going to accept me as one of them. But I found that was not so at all. They felt that they were above us. The few that I had to deal with even insulted me at times, and they were not as willing to help you as a white person would. Those are the simple things that at that level of my mixing with people I met, I found that the black[] [Americans] were rather standoffish and didn't like us very much." Waters, supra note 101, at 70.
315. Chacko, supra note 23, at 498 ("When native Blacks were vocally critically of them, young Ethiopian immigrants reported being more upset and offended than if the comments had been made by Whites.").
316. See Roy Simon Bryce-Laporte, Black Immigrants: The Experience of Invisibility and Inequality, 3 J. BLACK STUDS. 29 (1972) (arguing that Caribbean American Blacks face the double burden of xenophobia and racism on the labor market); see also Kalmijn, supra note 23, at 923 (noting "immigrants typically face some disadvantages in the labor market upon arrival in American society due to a lack of information on jobs and possibly a shortage of social capital to support the status attainment process as well").
317. Inniss, supra note 49, at 88. It is also important to note that, if we examine these issues of affirmative action in a global context, the inclusion of first- and second-generation Blacks in affirmative-action programs easily satisfies the social justice rationale of the policy. Like legacy Blacks, many Blacks from the Caribbean and South America descend from slaves. Additionally, many Blacks from the Caribbean, Africa, and South America come from economically depressed countries with huge poverty and unemployment rates. In other words, many first- and second-generation Blacks are facing the same obstacles as legacy Blacks in this country, with the primary difference being that the ancestors of first- and second-generation Blacks suffered such atrocities somewhere other than the United States. See Baynes, supra note 25, at 128-35 (arguing that, upon coming to the country, immigrant Blacks are subject to the same degree of de facto discrimination as African-Americans); Lewis, supra note 25, at 619-26 (examining the actual or perceived differences between native-born and immigrant Blacks in the context of a critical race feminist analysis); Sowell, supra note 120, at 45-46 (describing the lingering effects of slavery and racial attitudes in the West Indies).
318. See Harris & Narayan, supra note 59, at 11 ("Nevertheless, affirmative action policies serve important purposes - to partially counter the ways in which factors such as class, race, and gender function in our society to impede equal access, equal opportunity and equal treatment; and to foster a greater degree of inclusion of diverse Americans in a range of institutions and occupations than would otherwise exist.").
319. Such a rule could require each sub-group within a larger racial/ethnic minority category to justify its claim to redress. For example, would we then be forced to limit affirmative-action programs to the descendants of black slaves and not free Blacks and Chinese-Americans whose indentured servant ancestors were used to construct railroads? To some extent, practices of racial proof and past discrimination are necessary to receive benefits that are targeted toward certain racial minorities. For example, students who wish to receive financial aid due to their status as American Indians "must submit proof that they are members of federally recognized tribes." Mary Annette Pember, Ethnic Fraud?, DIVERSE ONLINE, Jan. 25, 2007, http://www.diverseeducation.com/artman/publish/printer_6918.shtml. As one author noted, this task may not be easy even for those who possess nearly 100% American Indian ancestry because their "ancestry may be so fractionalized that they are not eligible for enrollment in a single tribe." Id.
320. TERANCE J. REEVES & CLAUDETTE E. BENNETT, WE THE PEOPLE: ASIANS IN THE UNITED STATES, CENSUS SPECIAL REPORTS 12 fig.9 (2004) (examining persons who were twenty-five or older).
321. Id.
322. Id. at 16 fig. 13.
323. Johnson, supra note 165, at 199.
324. Holzer, supra note 59, at 227.
325. See Brest & Oshige, supra note 4, at 887 (stating that "American-born Latinos are better off than the foreign-born"); Marjorie Coeyman, The Story Behind Dropout Rates, CHRISTIAN SCI. MONITOR, Jul. 1, 2003, at 13 (noting that high school dropout rates among Hispanic students in 2001 remained extremely high at twenty-seven percent);
326. Angela Onwuachi-Willig, For Whom Does the Bell Toll: The Bell Tolls For Brown?, 103 MICH. L. REV. 1507, 1513 & n.26 (2005)
327. (reviewing DERRICK BELL, SILENT COVENANTS: BROWN V. BOARD OF EDUCATION AND THE UNFULFILLED HOPES FOR RACIAL REFORM (2004)) (reporting a dropout rate among sixteen-to nineteen-year-old Latina/os at twenty-seven percent, but also noting that "the dropout rate of high school age Latinos born in the United States is half that of all high school age Latinos, but still at an alarming 14%"). But see Deaux, supra note 128, at 649-50. Like with black
328. (citing ALEJANDRO PORTES & RUBEN G. RUMBAUT, LEGACIES: THE STORY OF THE IMMIGRANT SECOND GENERATION (2001)).
329. Fernandez-Kelly & Schauffler, supra note 99, at 678. But see Brest & Oshige, supra note 4, at 885 (noting that while the "first Cuban immigrants were well educated and from middle- or upper-class families[,] [e]ach subsequent group has been poorer and less well educated").
330. Fernandez-Kelly & Schauffler, supra note 99, at 678.
331. Id.; see also Deaux et al., supra note 128. at 30 ("In the case of Mexicans, however, it is not certain whether first-generation immigrants would be impervious to stereotype threat effects, given the negative stereotypes that often characterize both Mexican nationals and Mexican immigrants. Thus, first-generation Mexican immigrants might show equal or even greater stereotype threat effects than would later generations.").
332. Latina/os now outnumber Blacks as the largest minority group in the United States. Sheryll D. Cashin, Shall We Overcome? Transcending Race, Class, and Ideology Through Interest Convergence, 79 ST. JOHN'S L. REV. 253, 277 (2005).
333. See Michael A. Olivas, Constitutional Criteria: The Social Science and Common Law of Admissions Decisions in Higher Education, 68 U. COLO. L. REV. 1065, 1072-75 (1997) ("For minority students, moreover, studies by several admissions scholars reveal small or no meaningful statistical relationships between test scores and academic performance.");
334. Kevin R. Johnson & Angela Onwuachi-Willig, Cry Me A River: The Limits of "A Systematic Analysis of Affirmative Action in American Law Schools, 7 AFR. AM. L. & POL'Y REP. 1, 22 (2005) (analyzing possible factors which may explain why African-American law students underperform academically when their admissions criteria predict higher levels of success); see also supra note 240.
335. To be clear, this group, of course, excludes international students who moved to the United States temporarily to attend private boarding high schools away from their parents in their homeland.
336. See Kwame Okoampa-Ahoofe, The New Scapegoats, Part 3, 11 N.Y. BEACON 9 (2004) (asserting that "the problem still remains regarding how to scientifically identify these 'descendants of slaves'" for those who "insist on clearly differentiating recent continental African immigrants, as well as their Afro-Caribbean counterparts, from what these critics term as 'indigenous African-Americans' ").
337. See Leonard Baynes, Who Is Black Enough for You: An Analysis of Northwestern University Law School's Struggle over Minority Faculty Hiring, 2 MICH. J. RACE & L. 205 (1997) (examining an incident in which a minority faculty candidate's racial authenticity may have been questioned in the hiring process). I also acknowledge, again, that race is a social construct; thus, the idea of any person being racially pure is also a social creation.
338. See Haynie, supra note 15, at 54 ("The American ideal of equal opportunity appears to be somewhat undermined when it is found that black Americans, who endure not only present-day racism, but also the burden of dealing with the psychological disadvantages caused by [past] discrimination, benefit the least from affirmative action relative to other blacks at selective institutions.").
339. Brest & Oshige, supra note 4, at 859.
340. See Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (Powell, J., concurring) (proclaiming that in utilizing "the right to select those students who will contribute the most to the 'robust exchange of ideas,'" a university "seek[s] to achieve a goal that is of paramount importance in the fulfillment of its mission").
341. See David Orentlichter, Diversity: A Fundamental American Principle, 70 MO. L. REV. 777, 780 (2005) ("Diversity is central to the American legal and economic systems because diversity both promotes good outcomes and discourages bad outcomes. Diversity promotes good outcomes by multiplying options.").
342. For example, the Mission Statement of Dartmouth College in New Hampshire reads as follows: "Dartmouth embraces diversity with the knowledge that it significantly enhances the quality of a Dartmouth education." Dartmouth College, Mission, available at http://www.dartmouth.edu/~presoff/mission/ ; see also supra note 56 (describing mission statements at other colleges and universities that address the issue of diversity).
343. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 338 (2003) (noting that the University of Michigan Law School's "1992 policy makes clear '[t]here are many possible bases for diversity admissions,' and provides examples of admittees who have lived or traveled widely abroad, are fluent in several languages, have overcome personal adversity and family hardship, have exceptional records of extensive community service, and have had successful careers in other fields").
344. Id. at 306.
345. Id. at 316-21.
346. Id. at 328.
347. Id. at 329.
348. Id. at 334.-37.
349. Id. at 334, 337 (asserting that "a university's admissions program must remain flexible enough to ensure that each applicant is evaluated as an individual and not in a way that makes an applicant's race or ethnicity the defining feature of his or her application").
350. Id. at 338.
351. Id. at 330-31.
352. Id. at 330-31 (emphasis added).
353. Id. at 331-32.
354. Id. at 332.
355. Id. at 332.
356. Id. at 330-31 (emphasis added).
357. Id. at 331-32.
358. Id. at 332.
359. Accord Kevin R. Johnson & Luis Fuentes-Rohwer, A Principled Approach to the Quest for Racial Diversity on the Judiciary, 10 MICH. J. RACE & L. 5, 29 (2004) ("Racial diversity on the judiciary contributes to judicial legitimacy. In order for this argument to make sense, it requires a belief in courts as having large degrees of discretion to decide cases. It further requires a belief that a 'voice of color' in fact exists and must be represented in the judiciary.");
360. Sylvia R. Lazos Vargas, Does α Diverse Judiciary Attain a Rule of Law That Is Inclusive: What Grutter v. Bollinger Has to Say About Diversity on the Bench, 10 MICH. J. RACE & L. 101, 141 (2004) ("Inclusive judging provides a reason for minority citizens to continue to trust key governmental institutions and believe that they are neutral rather than political.");
361. Angela Onwuachi-Willig, Representative Government, Representative Court? The Supreme Court as a Representative Body, 90 MINN. L. REV. 1252, 1264 (2006) ("[D]iversity that reflects the make-up of the population in the United States would add greater legitimacy to the institution in the eyes of the public").
362. Roots, supra note 32, at 70 (emphasis added).
363. See Roberta Holland, Rejection Protection, BOSTON BUS. J., Oct. 8, 1999, available at http://boston.bizjournals. com/boston/stories/1999/10/11/smallb1.html?page=3.
364. See infra notes 285-90 and accompanying text.
365. The well-known elements of a cause of action for fraud are: (1) a misrepresentation which includes a concealment nondisclosure, (2) knowledge of the falsity of the misrepresentation, (3) intent to induce reliance on the misrepresentation, (4) justifiable reliance, and (5) resulting damages. See Cadlo v. Owens-Illinois, Inc., 23 Cal.Rptr.3d 1, 5 (Cal. Ct. App. 2004).
366. See Elizabeth F. Farrell, Students Identified as Being of 'Unknown' Race Tend to Be White, Study Finds. CHRON. HIGHER EDUC. Jan. 13, 2006, at A41.
367. Amy Argetsinger, College-Bound Students Often Skip Race Question, WASH. POST. June 1, 2003, at C01.
368. Id.
369. Id.
370. Id.
371. Id.
372. Id.
373. Id.
374. Id.
375. See id.
376. Id.
377. See Amy Harmon, Seeking Ancestry in DNA Ties Uncovered by Tests, N.Y. TIMES, Apr. 12, 2006, at A.1, available at http://www.nytimes.com/2006/04/12/us/12genes.html?ex= 1302494400&en= fa609519f8081dfe&ei=5088&partner=rssnyt&emc=rss (noting, too, that "[p]rospective employees with white skin are using the tests to apply as minority candidates"). In fact, the practice had grown so much that it prompted a letter in the New York Times from Bruce Poch, Vice President and Dean of Admissions at Pomona College in California. He wrote: To the Editor: The grasp for any presumed advantage in college admission has led to the specter of DNA sampling to find some genetic connection to a historically underrepresented racial group. But please know that most colleges will not consider this meaningful in their selection process. In ways that help and in ways that present challenges for many minority groups, race and ethnicity in this country do still generally connect directly to a set of life experiences. It is distressing to see an anxious parent reduce such considerations to a chit and reduce his own kids to a game piece in an attempt to help them gain admission to college. And it just plain won't work. Just as disheartening is what it says about popular perceptions of the state of the college admissions profession. Clearly, my colleagues and counterparts at other institutions and I need to be better teachers about what matters.
378. Bruce Poch, Letter to the Editor, Can a DNA Test Give You an Edge, Letter 3, N.Y. TIMES, Apr. 17, 2006, at A.20.
379. Harmon, supra note 283.
380. As Lester Monts, Senior Vice Provost for Student Affairs at University of Michigan, asserted, "If someone appears to be white and then finds out they are not, they haven't experienced the kinds of things that affirmative action is supposed to remedy." Id.
381. Id.
382. Id.
383. Id. A number of American Indian scholars have this same issue of ethnic fraud in faculty hiring, for which many colleges and universities do not require proof of tribal enrollment. See Mary Annette Pember, Ethnic Fraud?, DIVERSE ONLINE, Jan. 25, 2007, http://www.diverseeducation.com/artman/publish/printer_6918.shtml (asserting that "[f]or American Indian scholars, securing a job in higher education can sometimes be as simple as checking a box"). To address these claims, concerned American Indians have made suggestions for how to address this ethnic fraud, including through required documentation and a required statement to demonstrate past and future commitments to American Indians. See id.
384. See Christina Shanahan, DNA Testing Factors into Student Aid Applications, FORDHAM OBSERVER, May 4, 2006 (quoting the campus director of student financial services as saying, "As a practical matter it is not DNA composition that prompts our interest in ethnicity, but the diversity of the life experience and campus culture that students have the opportunity to share as part of their learning experience").
385. Harmon, supra note 283.
386. Flexibility in this requirement is important here because the quality of counselors at schools differs greatly. Indeed, in many of the most disadvantaged schools, counselors are often so swamped with problem students that they hardly get to know their best high school students. By no means do I intend for the counselor letter addition to be rigid. Again, I simply intend to begin a conversation here. Also, the proposed essay does not have to be an additional essay; it could also serve as a substitute for the primary college application essay for schools who desire this flexibility.
387. See Scott Jaschik, The Immigrant Factor, INSIDE HIGHER ED., Feb. 1, 2007, http://insidehighered.com/news/2007/ 02/01/black (quoting Lani Guinier as saying "I don't think, in the name of affirmative action, we should be admitting people because they look like us, but then they don't identify with us").
388. Grutter v. Bollinger, 539 U.S. 306, 331 (2003) (highlighting the breakdown of stereotypes as one of the benefits of diversity).
389. See Rebecca Parrish, The Meritocracy Myth, DOLLARS & SENSE, Jan.-Feb. 2006, at 24 (detailing an interview with Lani Guinier); cf. Haynie, supra note 15, at 44 (emphasis added) (noting that many first- and second-generation and mixed-race students did not identify in her survey, even though they were asked to check all that apply, as "black American"). Such an analysis would not require, for example, a black student to hang out with other Blacks or join the black student union. It would not be a judgment of whether a student is, for instance, "black enough," but rather what they are really bringing to the table in terms of diversity.
390. Massey et al., supra note 19, at 253.
391. Id.
392. See Haynie, supra note 15, at 44 (emphasis added).
393. RICHARD FORD, RACIAL CULTURE: A CRITIQUE 25, 31 (2005) (warning against essentialist ideas of blackness).
394. What may be problematic, however, is an identification as a non-black American for the explicit reason of distancing one's self from African-Americans because the person believes that he or she is "better than" the negatively stereotyped group; after all, while a person with reasons for so identifying could add to the diversity of opinion on campus, thus enabling a greater exchange, they add nothing at all to the notion of critical mass. Nevertheless, this person also serves as an argument for why the numbers of Blacks on campus, if two of the goals are diversity and achieving a critical mass, should be more than token-worthy. Again, the point of the proposed essay is not to make applicants prove that they are a black person with certain beliefs or politics. In the words of Professors Catherine Fisk and Mitu Gulati, I am not calling for a "racial trial" of this type, but only a trial of an acknowledgement of a lived experience as a black person or as a person of African descent.
395. See also Neil Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 DUKE L.J. 781, 784 (2006) (noting that the Supreme Court "has imposed a legal requirement of individualized consideration . . . but it has not clearly explained what the concept of individualized consideration means and why particular forms matter").
396. See Grutter v. Bollinger, 539 U.S. 306, at 315 (2003) (affirming the law school's use of race as one soft variable that informed it of the "applicant's likely contributions to the intellectual and social life of the institution"); Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (Powell, J., concurring) (maintaining that a school may implement affirmative action to admit "those students who will contribute the most to the 'robust exchange of ideas'" (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967))).
397. See supra note 56 (citing Vassar College's mission statement); see also Siegel, supra note 297, at 788-89 ("'[I] ndividualized consideration' means that government must determine whether a given individual meets the selection criteria by examining all of the individual's relevant characteristics or circumstances, not just one characteristic that (like all individual characteristics) is also a group characteristic").
398. See Haynie, supra note 15, at 55 (suggesting "[a]cknowledgment and record-keeping of black ethnic enrollment at all American universities, such that ethnic enrollment may be monitored and/or adjusted according to appropriate standards set by the university"). One suggestion also includes having colleges and universities publish more detailed statistics about the percentages of different minority student populations on campus, including their categorization by ancestral background.
399. Argetsinger, supra note 273, at C01.
400. Id.
401. Social construction is "the idea that race does not exist at all antecedently of its invention in culture.... [R]ace does not exist outside of, but is instead the effect of, discourses . . . . [A] particular race consciousness emerges: namely, that race is real and that everyone has one." Carbado, supra note 162, at 978.
402. See Holland, supra note 269 (describing the services of College Coach, a company formed by two MBAs to advise students through the admissions process).
403. See id. ("With the national average of 500 students for one guidance counselor, more families are looking for outside assistance" with the admissions process.).
404. Grutter v. Bollinger, 539 U.S. 306, 332 (2003).
405. Roots, supra note 32, at 70.
406. McNamee, supra note 29, at 10.
407. See Roots, supra note 32, at 70 (quoting Harvard Professor Mary Waters as saying, "If it's only skin color, that's a very narrow definition of diversity. I would hate to see Harvard not reaching out to those African Americans who have been in the United States for generations. Are we not looking as hard as we should in Mississippi or Alabama for kids who would do well if they were recruited?").
408. Guinier, supra note 11, at A13. A recent study of students at the 146 most selective colleges revealed that seventy-four percent come from the upper twenty-five percent of the socioeconomic ladder, only three percent come from the bottom twenty-five percent, and roughly ten percent come from the bottom fifty percent. See Guinier, Admissions Rituals, supra note 34, at 148
409. (citing ANTHONY P. CARNEVALE & STEPHEN J. ROSE, THE CENTURY FOUND., SOCIOECONOMIC STATUS, RACE/ETHNICITY, AND SELECTIVE COLLEGE ADMISSIONS 8 (2003), available at http://www.tcf.org/Publications/Education/carnevale_rose.pdf); see also Parrish, supra note 294 (interviewing Lani Guinier, who asserted, "Currently, schools are more concerned about admitting people who have high SAT scores who will boost their status than recruiting leaders. Education is changing from an opportunity for students to explore and grow to institutions that are consumed with rankings.").
410. See Guinier, Admissions Rituals, supra note 34, at 148.
411. See id. at 146-47 (2003) (detailing upper middle-class bias in admissions and asserting that "[q]uantitative measures often reflect family resources and influence rather than a student's resourcefulness or intelligence"); Harris, supra note 5, at 711 ("Affirmative action then is not a correction for societal discrimination, but a correction for the use of admissions criteria in which racial preferences are embedded."). In particular, colleges and universities should re-examine their reliance on standardized test scores, which have not proven to be good predictors of minority student performance. See Hölzer, supra note 59, at 223.
412. See Cho, Multiple Consciousness, supra note 10, at 1057 (emphasizing the need to question traditional standards of merit and warning that "deeper structures of domination may actually be strengthened when reforms are undertaken in ways that leave unchallenged the operational logic of subordinational systems");
413. see also Robin West, Constitutional Fictions and Meritocratic Success Stories, 53 WASH. & LEE L. REV. 995, 1016 (1996) ("If we wish to maintain our commitment to meritocracy and to maintain our belief that meritocracy is the normal . . . [w]e are forced to deny the extent to which the advantage, successes, and potentiality of every white person is a product of racial advantage rather than of individual merit standing alone. This denial, however, goes deeper. A belief in both the ideal and the typicality of meritocracy forces us to deny the extent to which success is a function not only of unearned racial privilege, but of any factor unrelated to merit. It forces us to deny, for example, both in our individual and in our collective histories, the influence of family connections in securing employment or education opportunities.").
414. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), cert. denied, 533 U.S. 929 (2001) (holding that the law school's admissions program which provided substantial racial preferences in favor of racial minorities in its admission program violated equal protection).
415. See Onwuachi-Willig, supra note 237, at 1507, 1536, 1538; Jonathan D. Glater, Diversity Plan Shaped in Texas Is Under Attack, N.Y. TIMES, June 13, 2004, at A1;
416. Clay Robison, Minority Leaders Urge State to Keep College 10% Rule, HOUSTON CHRON., June 24, 2004, at A17.
417. See Lewin, supra note 2, at 1. Lobbyists are working to revise a bill, which is next available for revision during the 80th Regular Session (2007). HB 78 (80R), which would cap admissions under the Plan to just forty percent of the entering class, is planned to be introduced during this session. Supporters of the cap argue that "the law discriminates against good students from high-performing schools who fall short of the top 10 percent category but whose SAT scores are higher than those of top 10 percent students at lower-performing schools." Posting of Ralph K.M. Haurwitz to College Admission Guide: College Search Guide, Legislative Battle Brewing Over College Admission Law, http://college-search-and-colleges.blogspot.com/2006/ 12/legislative-battle-brewing-over.html (Dec. 10, 2006 14:14 EST).
418. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (noting almost four years ago that "[w]e [the Court] expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today"); cf. Eboni Nelson, What Price Grutter?, 32 J. C. U. L. 1 (2005) (urging affirmative action supporters to begin to consider other ways of measuring and ensuring diversity at schools).
419. See Inniss, supra note 49, at 85 ("The black American experience is an immigrant experience. This is true, I submit, whether we speak of native or foreign-born blacks, poor or middle-class blacks."); cf. Johnson, supra note 165, at 200-01 ("Latinos should recognize the arbitrariness of treating immigrants and citizens differently under the law. . . . It divides a community with members who have much in common, including dominant society's classification of the entire group as 'foreigners' to the United States.").
420. Naturally, because each college and university has a limited number of spaces for students of all races, including more legacy Blacks necessarily means that others groups may be excluded, but such exclusion, unlike that currently of legacy Blacks, is unlikely to be grossly disproportionate or all encompassing.