The new racial preferences

California Law Review

Volumn 96, Issue 5, 2008, Pages 1130-1214

  Carbado, Devon W ^a   Harris, Cheryl I ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 56049098536     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (235)

1. The core provisions of Proposal 2 and Proposition 209, as incorporated into their respective states' constitutions, are identical: "The state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education or public contracting." MICH. CONST. art. I, § 26(2); CAL. CONST. art. I, § 31 (a). California's Proposition 209 was passed in November 1996 and took effect in August 1997 following the resolution of litigation challenging its constitutionality. See Coal, for Econ. Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997) (litigation challenging Proposition 209 as unconstitutional under the Equal Protection Clause).
2. This is not to say that gender-based programs were not targeted as well. As the Ballot Pamphlet for Proposition 209 provided: "A YES vote on [Proposition 209] means the elimination of those affirmative action programs for women and minorities run by the state or local governments in the areas of public employment, contracting and education." Coal. for Econ. Equity, 122 F.3d at 696 (quoting the California Ballot Pamphlet). Instead, the point is that public debates about affirmative action rarely ever focus on women, even though white women are the principal beneficiaries of the policy. See African American Policy Forum, Myth 5: Affirmative Action is an African American Entitlement Program, http://aapf.org/projects/myths/myth-5- affirmative-action-is-an-african-american-entitlement-program (last visited July 28, 2008) ("Affirmative action benefits a broad range of people and communities that continue to face discrimination in this country, including Latino, Native, Arab, Asian and African Americans. The primary beneficiaries, however, have been white women."); see also Sumi Cho, Understanding White Women's Ambivalence Towards Affirmative Action: Theorizing Political Accountability in Coalitions, 71 UMKC L. REV. 399, 400-01 (2002).
3. See Girardeau A. Spann, Proposition 209, 47 DUKE L.J. 187, 201 (1997) (noting that "[t]he point of [Proposition 209] was to eliminate affirmative action in response to political disenchantment with the direction in which it had developed"). Whether this objective has been completely achieved is not entirely settled. Because both initiatives ban "preferences" as distinct from affirmative action per se, questions remain regarding whether particular practices characterized as affirmative action are subject to the initiatives' proscriptions on preferences. See, e.g., Hi-Voltage Works, Inc. v. City of San Jose, 12 P.3d 1068 (Cal. 2000) (considering whether outreach programs are preferences within the meaning of Section 31 of the California Constitution). For a recent iteration of the debate regarding whether practices characterized as race-neutral in fact constitute racial preferences, see Coalition to Defend Affirmative Action v. Regents of the University of Michigan, 539 F. Supp. 2d 924 (E.D. Mich. 2008) (litigation over whether university admission policies eliminating considerations of race, while continuing to consider other diversity factors such as geography, socioeconomic status, alumni connections and athletic ability, effectively confer racial preferences for some applicants over others). Indeed, it has been argued that race-based affirmative action is not proscribed by the initiatives if it does not constitute "discrimination" or "preferential treatment." See MICH. CIVIL RIGHTS INITIATIVE COMM., PROPOSAL 2, ACTUAL BALLOT LANGUAGE 16, http://www. michigancivilrights.org/media/Actual%20Ballot%20Language.pdf (last visited May 27, 2008); see also Hi-Voltage Works, 12 P.3d at 1092, 1097 (George, C.J., concurring and dissenting) (noting ballot pamphlet language indicating that affirmative action programs would be eliminated "to the extent they involve 'preferential treatment' based on race"). Not only is the concept of "preferences" contestable; the concepts of " discrimination" and "preferences"-both of which are prohibited-are not equivalents and may in some instances push in different directions. See Spann, supra note 3, at 210 (noting that with respect to "discrimination" and "preferences," "[e]ach may prohibit what the other requires").
4. Proponents of both initiatives consistently characterize affirmative action as an unfair racial preference. See, e.g.. Ward Connerly, Michigan Win: Lessons in a Victory Over Racial Preferences, NAT'L REV. ONLINE, Jan. 30, 2007, http://article.nationalreview.com/?q=MjYwYThkMGNjZmE3OTE4ZjBmMzQ0YTBkNzZkNzA0 YWE ("In the view of most Americans, 'affirmative action' has become synonymous with race preferences. There is no longer any need to distinguish between the two and doing so will most likely lead only to confusion."); Ward Connerly, Vote Yes to Restore Equal Treatment Under Law and Fairness in Michigan; Should Voters Ban Racial Preferences?, DETROIT NEWS, Oct. 19, 2006, at A17 (arguing that Proposal 2 would end the preferential treatment reflected in "lowered standards for college admissions, minority and women set-asides in contracting, and quotas in hiring"); Gail Heriot, Racial Preferences Are Wrong, SAN DIEGO UNION-TRIB., Dec. 27, 2002, at B7 (equating affirmative action programs with preferences for racial and ethnic groups). As we discuss more in Part III, whether a particular action or policy counts as a preference depends upon whether the existing status quo is neutral or asymmetrical. If it is the former, then considerations of race, gender, or other factors might fairly be considered a preference. On the other hand, if the status quo is asymmetrical and disadvantages particular applicants, then considerations that offset that burden are not a preference. See infra notes 204-218 and accompanying text.
5. See Thomas J. Espenshade & Chang Y. Chung, The Opportunity Cost of Admission Preferences at Elite Universities, 86 SOC. SCI. Q. 293, 303-04 (2005) ("[E]liminating affirmative action would reduce acceptance rates for African American and Hispanic applicants by as much as one-half to two-thirds.... White applicants would benefit very little by removing racial and ethnic preferences... [But] Asian applicants would gain the most. They would occupy four out of every five seats created by accepting fewer African American and Hispanic students."); Peter Schmidt, Study Challenges Assumptions About Affirmative-Action Bans, CHRON. OF HIGHER EDUC., Feb. 8, 2008, at 20 (reporting on a forthcoming study by David R. Colburn, Charles E. Young Jr. and Victor M. Yellen that finds enrollment of Asian Americans at selective public universities has increased relative to other groups since affirmative action programs were abandoned). But see William C. Kidder, Negative Action Versus Affirmative Action: Asian Americans Are Still Caught in the Crossfire, 11 MICH. J. RACE & L. 605, 605-06 (2006) ("At some elite colleges and universities, Asian Pacific American (APA) applicants have a lesser chance of being admitted than equally qualified White applicants. This practice, termed 'negative action,' is distinct from affirmative action policies that give a plus factor to some African American, Latino, and American Indian applicants.... Espenshade and Chung's inattention to the distinction between negative action and affirmative action effectively marginalizes APAs and contributes to a skewed and divisive public discourse about affirmative action, one in which APAs are falsely portrayed as conspicuous adversaries of diversity in higher education."); see also Frank H. Wu, Neither Black nor White: Asian Americans and Affirmative Action, 15 B.C. THIRD WORLD L.J. 225, 226 (1995) ("The real risk to Asian Americans is that they will be squeezed out to provide proportionate representation to whites, not due to the marginal impact of setting aside a few spaces for African Americans.").
6. See Gail L. Heriot, Strict Scrutiny, Public Opinion, and Affirmative Action on Campus, 40 HARV. J. ON LEGIS. 217, 223 (2003) (arguing that by "establish[ing] preferences for minority applicants" at the University of Michigan Law School, the state is "engaging in old-fashioned racial discrimination" ). Under the foregoing framework, it is irrelevant that affirmative action can be characterized as racially benign-that is, as an equality-enhancing social policy that employs race to address embedded racial inequities - what Griggs called "built-in headwinds." Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971). What matters is the simple fact that race figures in the policy. That, without more, places affirmative action on the same normative footing as the invidious forms of racial discrimination Brown v. Board of Education expressly repudiated more than fifty years ago. 347 U.S. 483 (1954). Thus, all racial classifications - whether invidious or benign - trigger strict scrutiny. See, e.g., Johnson v. California, 543 U.S. 499, 505 (2005) ("We have insisted on strict scrutiny in every context, even for so-called 'benign' racial classifications, such as race-conscious university admissions policies."); Adarand Constructors, Inc., v. Pena, 515 U.S. 200, 227 (1995) ("[A]ll racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny.").
7. See, e.g., Bradley R. Gitz, Higher Education Diversity In, Standards Out, ARK. DEMOCRAT-GAZETTE, Mar. 22, 2001, at B9 ("The rage for diversity also implies a host of genuinely ugly, even racist notions; for example, that group identity should trump individual merit and that pigmentation constitutes a form of intellectual destiny foremost among them."); Joseph P. Hrutka, Diversity and the High Court, WASH. POST, June 25, 2003, at A22 ("Those who have merit don't need affirmative action, and those who need affirmative action are probably of questionable merit."); Sandy Mayo, Editorial, Yes on Proposal 2, GRAND RAPIDS PRESS, Oct. 26, 2006, at A14 ("I will be voting yes on Proposal 2 to ban affirmative action programs... . [P]eople should be judged on their merits, not their race, gender, color or ethnicity.").
8. See, e.g., Spann, supra note 3, at 201 (noting that Proposition 209 was a referendum not just on affirmative action, but on concepts of neutrality and merit); Leslie Wolf Branscomb. Defeat of Prop. 54 Is Called Win for Grass-Roots Politics, SAN DIEGO UNION-TRIB., Oct. 8, 2003, at All ("In 1996 Connerly sponsored Proposition 209... . He said his newest initiative would lead to a more color-blind society."); Henry Payne, Election Silver Lining, WASH. TIMES, Nov. 22, 2006, at A14 ("[Proposal 2] will potentially trigger similar initiatives in other states and revive the cause of a colorblind society... ."); Why Should Michigan Voters Approve/Reject Proposal 2?, DETROIT NEWS, Oct. 20, 2006, at A4 ("Proposal 2 moves Michigan toward a colorblind society by treating everyone equally when it comes to college admission and jobs.").
9. See, e.g., Ward Connerly, Proposition 54: Society's views, emphasis on race put to the test in Tuesday's election; It's time to take positive step toward making race, skin color irrelevant, FRESNO BEE, Oct. 1, 2003, at B9; Ward Connerly, Striving for the Color-Blind Ideal, LONG BEACH PRESS- TELEGRAM, Oct. 5, 2003, at A23; Ward Connerly, In Pursuit of Colorblind Justice. WASH. TIMES, Apr. 2, 2003, at A17; Gail Henot, Diversity on Campus, WASH. TIMES, July 24, 1996, at A17.
10. 347 U.S. 483 (1954). Cf. Rachel F. Moran, The Heirs of Brown; The Story of Grutter v. Bollinger, in RACE LAW STORIES 490-95 (Rachel F. Moran and Devon W. Carbado eds., 2008) (discussing the extent to which the doctrinal battles over affirmative action are fundamentally about who can lay claim to the legacy of Brown).
11. Plessy v. Ferguson, 163 U.S. 537 (1896). See generally Cheryl I, Harris, The Story of Plessy v. Ferguson: The Death and Resurrection of Racial Formulism, in CONSTITUTIONAL LAW STORIES 181, 181-222 (Michael C. Dorf ed., 2004) (illustrating how the logic of Plessy lives on in current equal protection jurisprudence).
12. See Brian Richardson, Note, Thigpen v. Bibb County, Georgia, 7 WASH. & LEE RACE & ETHNIC ANC. L.J. 217, 225 (2001) ("The debate over affirmative action plans usually focuses on their use in higher education admissions."); see also Racial Representation in the Workplace, N.Y. TIMES UPFRONT, Feb. 21, 2003, ("The current debate over affirmative action focuses on higher education... .").
13. See generally WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER (1998).
14. There is a broad literature that questions whether standardized testing and the notion of merit more generally is objective. See Luke Charles Harris & Uma Narayan, Affirmative Action and the Myth of Preferential Treatment: A Transformative Critique of the Terms of the Affirmative Action Debate, 11 HARV. BLACKLETTER L.J. 1, 13 (1994) (arguing that the "transition to greater inclusiveness has provoked, among other things, some rethinking about the traditional criteria of 'merit' for admission to and promotion within various American institutions, and some reexamination of assessment procedures once thought to be unquestionably 'neutral'"); Lani Gunier, Reframing the Affirmative Action Debate, 86 KY. L.J. 505, 511-13 (1998) (providing examples of how the "SAT, the LSAT, and the GRE" are "coachable tests" and revealing that "[e]xamples like these show clearly that we're using certain aptitude tests to credentialize a social oligarchy and we're mistakenly calling it merit"); Daria Roithmayr, Deconstructing the Distinction Between Bias and Merit, 10 LA RAZA L.J. 363, 366-67 (1998) (observing that merit has been conceptualized as "ahistorical, objective measures of ability," and arguing that this understanding of merit obscures that "what constitutes ability itself is subjective and constructed under particular historical circumstances by particular social groups;"); see also Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 COLUM. L. REV. 928 (2001); Phoebe A. Haddon & Deborah W. Post, Misuse and Abuse of the LSAT: Making the Case for Alternative Evaluative Efforts and a Redefinition of Merit, 80 ST. JOHN'S L. REV. 41 (2006) (focusing specifically on the LSAT).
15. We do not presume that all admissions programs accord the same weight to personal statements. Indeed, many colleges and universities utilize basic screening mechanisms for undergraduate admissions under open admissions policies. See generally BOWEN & BOK, supra note 13.
16. See William C. Kidder & Jay Rosner, How the SAT Creates Built-in Headwinds: An Educational and Legal Analysis of Disparate Impact, 43 SANTA CLARA L. REV. 131, 145 (2002) (questioning the implications of race in standardized testing); Timothy T. Clydesdale, A Forked River Runs Through Law School: Towards Understanding Race, Gender, Age, and Related Gaps in Law School Performance and Bar Passage, 29 LAW & SOC. INQUIRY 711, 737 (2004) ("Something intrinsic to the structure or process of legal education affects the grades of all minorities."). While scholars and the judiciary have not focused on the way in which the letters of recommendation process is racialized, some have explored how both access to and the substance of mentoring is often related to race. See Gratz v. Bollinger, 539 U.S. 244, 304 (2003) (Ginsburg, J., dissenting) ("One can reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollment - and the networks and opportunities thereby opened to minority graduates... . In turn, teachers' recommendations may emphasize who a student is as much as what he or she has accomplished."); see also Daria Roithmayr, supra note 14, at 368-69 (arguing that the preferences for certain academic criteria "are necessarily subjective and race-conscious; they are developed in a historically contingent social context and are authored by members of groups who have enough social power - which historically has been based in part on their race and ethnicity - to define what counts as social value").
17. See ESSAYS THAT WORKED FOR LAW SCHOOLS 1 (Boykin Curry & Emily Angel Baer, eds., 2003) ("For some law schools, the essay is crucial: a great essay can make admissions officers discount poor grades or scores; a bad essay can ruin an otherwise sterling application."). The editors of Essays That Worked for Law Schools provide a graph illustrating the relative importance of the personal statement at selective law schools, including Harvard, Columbia, Yale, University of Michigan, Berkeley, UCLA, and Stanford. See id. at 2-3. Most of these law schools considered the role of the personal statement to be an important, if not vital, component of the law school application. Id. Given the increasingly intense competition for admissions to selective colleges and universities, the personal statement is likely to assume even greater importance since there are hundreds of applicants with very high academic qualifications. See Alan Finder, Elite Colleges Reporting Record Lows in Admissions, N.Y. TIMES, Apr. 1, 2008, at A16 (reporting that admissions rates are hitting record lows due to the high volume of applicants and thousands of applicants with perfect SAT verbal and math scores).
18. For example, the University of California, Los Angeles explains that the personal statement "[a]dds clarity, richness, and meaning to the information presented in other parts of your application" and "[a]llows you to make your best case for why you should be admitted to UCLA." UCLA, PERSONAL STATEMENT: FALL 2008, http://www.admissions.ucla.edu/Prospect/PersonalStatement.pdf (last visited Feb. 1, 2008). Moreover, in explaining the importance of the personal statement in graduate and professional school admission, a website from Dartmouth College explains, "The personal statement can be the factor that differentiates you from the other candidates. It gives the admissions committee a chance to get a glimpse of you as a person rather than as a set of numbers." Career Services, The Personal Statement, http://www.dartmouth.edu/∼csrc/students/ gradschool/artsci/statement.html (last visited Feb. 1, 2008).
19. The University of California initially stopped considering race in making individual admissions decisions pursuant to Regents Resolution SP-1 which provided that effective January 1, 1997, the University of California "shall not use race, religion, sex, color, ethnicity or national origin as criteria for admission to the University or to any program of study." Office of Equal Opportunity and Diversity, UC Irvine, A Brief History of Affirmative Action, http://www.eod.uci.edu/aa.html (last visited May 27, 2008) (quoting Regents Resolution SP-1). Each campus was charged with revising its own admissions policies to eliminate consideration of race. See UNIV. OF CAL., UNDERGRADUATE ACCESS TO THE UNIVERSITY OF CALIFORNIA AFTER THE ELIMINATION OF RACE CONSCIOUS POLICIES 8 (2003) available at http://www.ucop.edu/outreach/aa_finalcx%202.pdf. The policies took effect for students seeking graduate and undergraduate admissions in the fall of 1998. Id. These policies also presumptively met the requirements of Proposition 209. While SP-1 instituted a ban on racial preferences in admissions policy only, Proposition 209 has been interpreted more broadly to also outlaw race-conscious outreach and financial aid programs. See id. at 7. Outreach policies were then created to comply with SP-1 and Proposition 209, See id. at 24 ("Consistent with Proposition 209, UC's outreach programs operate in a race-neutral fashion."); see also JOHN AUBREY DOUGLAUS, THE CONDITIONS FOR ADMISSION: ACCESS, EQUITY AND THE SOCIAL CONTRACT OF PUBLIC UNIVERSITIES 193 (2007) (discussing the emergence of a four-pronged outreach effort; "as in admissions, each needed to be race neutral."). While each UC campus has developed and refined its approach to admissions, all either explicitly exclude race as a criterion for admissions or do not include it as an admissions criteria. See UC Berkeley, Office of Undergraduate Admissions, UC Berkeley Freshman Selection Process, http://students.berkeley.edu/admissions/ freshmen.asp?id=56&navid=N (noting that race is excluded from the selection criteria) (last visited Apr. 10, 2008); Berkeley Law, Application Process, http://www.law.berkeley.edu/admissions/jddegree/appprocess/index.html [hereinafter Berkeley Law, Application Process] ("Race... [is] not used as criteria for admission to Boalt Hall."); UCLA, FRESHMAN SELECTION OVERVIEW 2 (2008) ("California law prohibits consideration of an applicant's race... in individual admissions decisions."), available at http://www.admissions.ucla.edu/Prospect/ Adm_fr/FrSel.pdf; UC Davis, Undergraduate Admissions, Freshmen: Criteria for Selection Process, http://admissions.ucdavis.edu/admissions/ fr_selection_process.cfm (race not listed among admission criteria) (last visited Apr. 10, 2008); UC Irvine, Office of Admissions and Relations with Schools, Freshman Selection Criteria at Irvine, http://www.admissions.uci.edu/ fr_adm.html (same) (last visited Apr. 10, 2008); UC Merced, Freshman Selection at UC Merced, http://admissions.ucmerced.edu/2.asp?uc=1&1v12=122&1v13= 122&1v14=126&contentid=50 (same) (last visited Apr. 10, 2008); UC Riverside, Paths to Admission: UC Riverside Comprehensive Review, http://www.futurestudents.ucr.edu/admissions/paths.aspx (same) (last visited Apr. 10, 2008); UC Santa Barbara, UCSB Admission Review Process, http://www.admissions.ucsb.edu/SelectionProcess.asp?section= selectionprocess&subsection=revi ewprocess&selectiontype= prospective_freshman (same) (last visited Apr. 10, 2008); UC San Diego, UC San Diego Comprehensive Review Admission Process: Freshman Selection, Fall 2008, http://www.ucsd.edu/portal/site/ucsd/menuitem.135225ab0c7ce3c0c0020010d34b01ca/? vgnextoid =f9d9a78f2c741110a78f2c741110cdca5105RCRD (same) (last visited Apr. 10, 2008); UC Santa Cruz, UC Santa Cruz Student Services, UC Santa Cruz Freshman Admissions Guide (last visited Aug. 7, 2007), http://admissions.ucsc.edu/pdf/ FreshmanGuide.pdf (same). Following the passage of Proposal 2, the University of Michigan eliminated race from the admissions criteria, while it continued to consider other factors such as geography, socioeconomic status, alumni connections and athletic ability in making selection decisions. Mary Sue Coleman, President, University of Michigan, Proposal 2 Next Steps (January 10, 2007), http://www.umich.edu/pres/speeches/070110prop2.html.
20. One article does note controversy over whether UC Berkeley was improperly continuing to consider race through consideration of various racial identifiers in the application including the personal statement. See Daniel N. Lipson, Embracing Diversity: The Inslitutionalization Of Affirmative Action As Diversity Management At UC-Berkeley, UT-Austin, And UW-Madison, 32 LAW & SOC. INQUIRY 985, 1015 (2007) ("[T]he line between race-based and race-blind policy making can be quite blurry and that this leads some antiaffirmative action activists to accuse these university officials of failing to fully comply with the bans. Jack Citrin and Ward Connerly have both put forth and later partially retracted accusations that the admissions officials at UC-Berkeley were 'slipping' race in through the back door via individual assessment (e.g., by preferring applicants from school districts that are predominantly African American or Hispanic, by preferring applicants with names that are predominantly African American or Hispanic, and/or by preferring applicants who identify or give clues that they are African American or Hispanic in their personal statements")) (emphasis added). Another noted the potential uncertainty that anti-preference mandates created for applicants. See Garner K. Weng, Look at the Pretty Colors! Rethinking Promises of Diversity as Legally Binding, 10 LA RAZA L.J. 753, 806 (1998) (discussing criticism of steps taken by Boalt Hall to promote diversity in response to SP-1 and Proposition 209: "[S]tudents believe that printing the text of Resolution SP-1 near the instructions for the personal statement made applicants believe they could not discuss race even in the context of overcoming obstacles"). However, the articles do not provide an in-depth discussion of what the ban on racial preferences requires in terms of the personal statement. The personal statement is usually mentioned in discussions of how applicant characteristics other than race can be used to increase enrollment of underrepresented minorities. See Rachel F. Moran, Diversity and its Discontents: The End of Affirmative Action at Boalt Hall, 88 CALIF. L. REV. 2241, 2248 (2000) (discussing changes implemented in response to recommendations of the law school's Admissions Policy task force, including "expand[ing] its use of the personal statement to make subjective judgments about applicants"); see also Herma Hill Kay, The Challenge to Diversity in Legal Education, 34 IND. L. REV. 55, 65 (2000) (discussing Boalt Hall's new post-Proposition 209 admissions policy: "We also expanded the personal statement our applicants are asked to submit from two pages to four pages and invited them to 'separately discuss how [their] interests, backgrounds, life experiences and perspectives would contribute to the diversity of the entering class.'").
21. See, e.g., DOUGLASS, supra note 19, at 184-213 (2007) (analyzing the aftermath of SP-1 and Proposition 209 in California, including the decline in applications and admission rates for underrepresented minority students, the subsequent implementation of various strategies to increase underrepresented minority enrollment without violating the ban on racial preferences, and the statistical impact of these strategies); Moran, supra note 20, at 2249 (assessing through a survey of Berkeley Law students how changes in admissions in the wake of Proposition 209 affected the educational and social climate of the law school); see also D. Frank Vinik, Laura Cumin & James P. O'Brien, Jr., Affirmative Action in College Admissions: Practical Advice To Public and Private Institutions for Dealing with the Changing Landscape, 26 J.C. & U.L. 395 (2000) (providing practical advice for strategies to increase diversity without violating the law, including a discussion of "pitfalls" that may lead to violation, none of which mention the personal statement).
22. See Ralph J. Bunche Center for African American Studies at UCLA, Research: College Access Project for African Americans, College Access Project for African Americans (CAPAA), http://www.bunche.ucla.edu/frames/index.html (follow "CAPAA" hyperlink) (last visited May 27, 2008). The goal of the CAPAA is to examine the operations question of how the admissions procedures at different UC campuses are structured to not include racial preferences. E.g. RALPH J. BUNCHE CENTER FOR AFRICAN AMERICAN STUDIES AT UCLA, "MERIT" MATTERS: RACE, MYTH & UCLA ADMISSIONS (2006), available at http://www.bunche.ucla.edu/ publications/BuncheResearchReport952006.pdf (arguing that an overly narrow definition of "merit" limits African American access to UCLA and that UCLA's supposedly "neutral" admissions process, by disproportionately denying admission to high-achieving African American students, is an example of institutional racism); RALPH J. BUNCHE CENTER FOR AFRICAN AMERICAN STUDIES AT UCLA, ADMISSIONS & OMISSIONS: HOW "THE NUMBERS" ARE USED TO EXCLUDE DESERVING STUDENTS (2006) (examining how the most selective UC campuses have implemented the post-209 strategy of "comprehensive review," which considers academic achievement, personal achievement, and life challenges); RALPH J. BUNCHE CENTER FOR AFRICAN AMERICAN STUDIES AT UCLA, (E)RACING RACE, ERASING ACCESS 1 (2005) ("Concerns for equity and access have been replaced by a rigid reliance on supposedly objective and 'colorblind' indicators of merit... ."). While these reports provide a more textured account of how the UCs changed their admissions policies in the wake of Proposition 209, none specifically addresses the personal statement.
23. One could make a similar point about letters of recommendation - namely, that to the extent that letters of recommendation are a part of the process, implementing the colorblind imperative of Proposal 2 and Proposition 209 might not be possible. Indeed, many of the arguments we make about the personal statement are applicable to the letters of recommendation process.
24. See infra notes 70-71, 144 and accompanying text.
25. See infra note 145 and accompanying text.
26. See infra notes 146-147 and accompanying text.
27. Hi-Voltage Works, Inc. v. City of San Jose, 12 P.3d 1068, 1082 (Cal. 2000) (citing WEBSTER'S NEW WORLD DICTIONARY 1062 (3d college ed. 1988)) (holding the language of Section 31 of the California Constitution, formerly Proposition 209, was meant to prohibit minority outreach programs for government contractors since such programs amount to favoring one racial group over another).
28. See infra notes 68-71 and accompanying text.
29. Authors of letters of recommendation are under a similar incentive structure. That is, they have to decide whether to make the applicant's race salient in their characterization of the applicant's accomplishments. More fundamentally, they have to ascertain whether not doing so diminishes the applicant's profile or makes it incomprehensible or incomplete.
30. See Lipson, supra note 20 (discussing controversy regarding whether Berkeley was improperly considering race through the personal statement).
31. The reader is in a similar position with respect to letters of recommendations that explicitly invoke the applicant's race or racial experiences.
32. In employing the language of "a new racial preference" we do not mean to suggest that affirmative action polices are "old" racial preferences. As we explain more fully later, whether or not one conceptualizes affirmative action as a preference turns, at least in part, on whether one thinks racial groups are similarly situated with respect to their access to colleges and universities. See infra notes 204-218 and accompanying text. Our aim here is to broaden the terms upon which the notion of a racial preference is debated.
33. Whether and how we express our identities is racially communicative. How an applicant negotiates her identity in her personal statement can convey information about her sense of racial identity, her conception of racial community and her commitments with respect to racial politics. For example, at times when racial minorities engage in strategies to make their racial identity less salient, questions may arise about whether the person is "acting white." DEVON W. CARBADO & MITU GULATI, ACTING WHITE? (forthcoming Oxford University Press) (manuscript on file with authors). For some, presidential hopeful Barack Obama engenders that very question. See, e.g., Roddie A. Burris, Jackson Criticizes Obama, Presidential Candidate's Response to Jena, La., Case Called Too Weak, THE STATE, Sept. 19, 2007, at B3 (reporting that at a speech given at Benedict College, Jesse Jackson "sharply criticized presidential hopeful and Illinois Sen. Barack Obama for 'acting like he's white' in what Jackson said has been a tepid response to six black juveniles' arrest on attempted-murder charges in Jena, La."); Satta Sarmah, Is Obama Black Enough?, COLUMBIA JOURNALISM REV., Feb. 15, 2007, available at http://www.cjr.org/politics/ is_obama_black_enough.php (debating the significance of 60 Minutes correspondent Steve Kroft asking Senator Obama why he considered himself black when he was raised in a white household); Lynne Varner, Black Enough to Invite Hope, SEATTLE TIMES, Aug. 15, 2007, available at http://seattletimes.nwsource.com/html/opinion/2003836366_lynne15.html (reporting that in Senator Obama's address to the National Association of Black Journalists he said, "you guys keep asking whether I am black enough"). For a discussion on race as performance, sec generally Devon W. Carbado & Mitu Gulati, Working identity, 85 CORNELL L. REV. 1259 (2000) [hereinafter Carbado & Gulati, Working Identity]; Devon W. Carbado & Mitu Gulati, The Fifth Black Woman, 11 J. CONTEMP. LEGAL ISSUES 701 (2001); Devon W. Carbado & Mitu Gulati, The Law and Economics of Critical Race Theory, 112 YALE L.J. 1757 (2003) (book review) [hereinafter Carbado & Gulati, The Law and Economics of Critical Race Theory].
34. See generally ERWIN CHEMERINSKY, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES § 11.2.1, at 932 (3d ed. 2006) (stating that "[t]he Supreme Court has frequently declared that the very core of the First Amendment is that the government cannot regulate based on its content"). Moreover, content neutrality requires that government "cannot regulate based on the ideology of the message," making a distinction among speakers based on the viewpoint they express or on the topic they address. Id.
35. The distinction between permissible content neutral regulation and impermissible distinctions between viewpoints and subject matter is of course complex. See id. Thus, we do not intend by this analogy to argue that the problem we describe here necessarily rises to the level of a First Amendment violation. This is an issue we plan to take up in our future work.
36. This is not the same thing as saying that race is real in some pre-social or biological sense. Indeed, most scholars across disciplines now agree that race is a social construction. See, e.g., MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 19608 TO THE 1990s (1994); Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1709 (1993) (demonstrating the law's role in constructing whiteness as racial identity and racial privilege); Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994).
37. See, e.g., IAN HANEY-LOPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE (1996) (describing how courts assigned individuals to races based on factors such as biology and culture). For a comprehensive list of historical cases and opinion excerpts where courts assigned individuals to races based on these factors see id. at 163-167 (appx. A), 169-182 (appx. B).
38. See Russell K. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093, 1127 (2008) ("While many whites view race-consciousness as an evil that must be strenuously avoided, blacks tend to see race-consciousness as critical to their survival in white-dominated realms."); id. at 1124 ("Whites tend to think about race less often than blacks because they have fewer incentives to be race-conscious... ."); see also, Barbara J. Flagg, "Was Blind, But Now I See ": White Race Consciousness & the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 953 ("Advocating race consciousness is unthinkable for most white liberals. We define our position on the continuum of racism by the degree of our commitment to colorblindness; the more certain we are that race is never relevant to any assessment of an individual's abilities or achievements, the more certain we are that we have overcome racism as we conceive of it."). This is sometimes supported via questionnaires in which people are asked to self describe; typically, people of color mention race very early in their self-definition. Whites, as a general matter, do not. See Ray Friedman & Martin N. Davidson, The Black-White Gap in Perceptions of Discrimination: Its Causes and Consequences, in RESEARCH ON NEGOTIATION IN ORGANIZATIONS 203, 213 (R. Bies et al. eds., 1999) (discussing surveys showing that blacks are more likely than whites to cite race as a key aspect of personal identity).
39. Moreover, each of them has particularly unique racial viewpoints and experiences: Obama - a political liberal - is both multiracial and the son of a Kenyan black father, while Thomas is a native-bom black conservative raised under Jim Crow. Conley is white, raised in a black segregated urban neighborhood, while Montoya is part of a Latino community that was racially marked as different through linguistic and cultural markers. Because of the diversity of their stories, together they help illustrate the ways in which colorblind or race neutral policies can suppress the vast range of racial viewpoints and experiences - a consequence that opponents of affirmative action paradoxically frequently contend is a result of affirmative action.
40. See, e.g., Univ. of Cal., Berkeley Sch. of Law (Boalt Hall), 2008 J.D. Program Application, at 3, available at http://www.law.berkeley.edu/ adinissions/jddegree/appprocess/2008Application.pdf ("Boalt Hall seeks to enroll a class with varied backgrounds and interests. If you wish, you may discuss how your interests, backgrounds, life experiences, and perspectives would contribute to the diversity of the entering class."); UCLA School of Law, Admission Application for Fall 2008, at 7 (asking for "any attributes, experiences or interests that would enable you to make a distinctive contribution to the law school or legal profession").
41. See, e.g., Univ. of Cal., supra note 40, at 3 ("If applicable, you may also describe any disadvantage that may have adversely affected your past performance or that you have successfully overcome, including linguistic barriers or a personal or family history of cultural. educational, or socio-economic disadvantage."); Univ. of Mich. Law School, Application to J.D. Program, at 4, available at http://www.law.umich.edu/ prospectivestudents/admissions/Documents/jdapp.2007.app.pdf (suggesting that applicants can write about "significant obstacles met and overcome" or "experiences and perspectives relating to disadvantage, disability, or discrimination").
42. See, e.g., ESSAYS THAT WORKED FOR LAW SCHOOLS (Boykin Curry & Emily Angel Baer eds., 2003); PRINCETON REVIEW, LAW SCHOOL ESSAYS THAT MADE A DIFFERENCE (2d. ed. 2006); PAUL BODINE, GREAT PERSONAL STATEMENTS FOR LAW SCHOOL (2005); Princeton Review, Writing the Statement of Purpose, http://www.princetonreview.com/grad/apply/articles/application/ purpose.asp (last visited Feb. 1, 2008); EssayPlus.com, The Personal Statement, http://www.essayplus.com/Personal_Statement.htm (describing how to write a good essay but also offering their services to help edit).
43. BARACK OBAMA, DREAMS FROM MY FATHER 10 (Three Rivers Press 2004) (1995).
44. Id.
45. Id. at 11-12.
46. Id. at 75.
47. Id. at 91-92.
48. Id. at 92.
49. Id. at 177.
50. Id. at 177-78
51. Id. at 123.
52. Id. at 125.
53. Id.
54. Id. at 126.
55. Id. at 128.
56. Id. at 129.
57. Id. at ix.
58. Id.
59. See Sumi Cho & Robert Westley, Critical Race Coalitions: Key Movements that Performed the Theory, 33 U.C. DAVIS L. REV. 1377 (2000) (describing the history of student activism at Berkeley, and more specifically, how student activism at Boalt Hall influenced other student activist movements in law schools throughout the nation).
60. A Minority of One: The Single Black First-Year Student at Berkeley's Boalt Hall Law School, 21 J. BLACKS IN HIGHER ED. 102, 102 (1998) ("Eric Brooks... deferred enrollment until the fall of 1997. He was the only African American among the 270 students in the 1997-98 first-year class."); Jack Greenberg, Affirmative Action in Higher Education: Confronting the Condition and Theory, 43 B.C. L. REV.
61. Michelle Locke, Blacks, Hispanics Rebound from Death of Preferences; Enrollment Back Up - With a Catch, CHIC. SUN TIMES, May 7, 2007, at 36 ("Last fall, 13 black students enrolled, a big increase from 1997 but still below the mid-'90s totals of 20 or more... . 'The bottom line on Proposition 209, from where I sit, is it has continued to suppress enrollment,' said Ed Tom, director of Boalt admissions.'"); Michelle Maitre, First Black Editor of Boalt Law Review Has Lofty Goals, OAKLAND TRIBUNE, Mar. 8, 2006 ("Robert Boone [a second year law student]... is one of only 44 African-American students who were accepted into Boalt in 2004 and is one of only 15 who ultimately enrolled in the law school... . The first-year class included 19 Latino students, nine African-American students and three American Indians."). Similarly, Proposition 209 negatively influenced admission rates of black students at UCLA School of Law. In the entering class in fall 1999 there were two Black students enrolled; the following year there were five. See Cheryl I. Harris, Critical Race Studies: An Introduction, 49 UCLA L. REV. 1215, 1236 app.A (2002). For the past three years - 2006 through 2008 - there have been between nine and fourteen Black students enrolled in the 1L class. Class size in these years has ranged from between 303 and 328 students. See ABA-LSAC Official Guide to ABA-Approved Law Schools, 2006, 2007, 2008 edition.
62. See Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613 (1997).
63. CAL. CONST. art. 1, § 31 (language of Proposition 209 as incorporated into the California State Constitution).
64. See Weng, supra note 20, at 806 (discussing criticism of steps taken by Boalt Hall to promote diversity in response to SP-1 and Proposition 209).
65. Berkeley Law, Application Process, supra note 19.
66. Boalt Hall, Application for Admission, http://www.law.berkeley.edu/ admissions/jddegree/ap_instructions_07.pdf (application for 2007 J.D. program).
67. Note that the words in italics were added or substituted for deleted words or phrases in order to make the statement legible.
68. In contrast, that such a firm would have only one black male employee is considered normal or completely unremarkable.
69. 388 U.S. 1 (1967) (declaring state anti-miscegenation statute barring whites from intermarrying with non-whites unconstitutional).
70. See Marianne Bertrand & Sendhil Mullainathan, Are Emily and Greg More Employable than Lakisha and Jamal? A Field Experiment on Labor Market Discrimination, (Nat'l Bureau of Econ. Research, Working Paper No. 9873, 2003), available at http://www.nber.org/papers/w9873.pdf (experiment finding that fictitious resumes randomly assigned African American sounding names received significantly fewer callbacks from employers than if the same resumes were assigned white sounding names).
71. See generally Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 DUKE L.J. 365 (discussing how minority racial characteristics such as skin color or hair are treated in anti-discrimination law).
72. While race and class are deeply connected, scholars continue to debate whether one can be a substitute for the other. For an argument that class is not an effective surrogate for race, see Cheryl I. Harris, Mining in Hard Ground, 116 HARV. L. REV. 2487, 2517-38 (2003) (book review); Deborah C. Malamud, Assessing Class-Based Affirmative Action, 47 J. LEGAL EDUC. 452 (1997); Deborah C. Malamud, A Response to Professor Sander, 47 J. LEGAL EDUC. 504 (1997). For an argument about the limitations of traditional anti-discrimination to address class-based inequalities, sec RICHARD D. KAHLENBERG, THE REMEDY: CLASS, RACE AND AFFIRMATIVE ACTION 83-84 (1996) ("As long as antidiscrimination laws work, race and gender are not impediments per se, but class differences remain, and civil rights legislation does nothing to address that inequality.") In addition, Kahlenberg contends that class-based remedies do not have the baggage of race or ethnicity based affirmative action plans. Id.
73. Many scholars contend that ethnicity and national origin are not proxies for race. See, e.g., OMI & WINANT, supra note 36; Ian F. Haney Lopez, Race, Ethnicity, and Erasure: The Salience of Race to Latent Theory, 85 CALIF. L. REV. 1143 (1997); Ian F. Haney Lopez, The Social Construction of Race: Some Observations on Illusion, Fabrication and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994). But see Orlando Patterson, The Race Trap, N.Y. TIMES, July 11, 1997, available at http://query.nytimes. com/gst/fullpage.html?res=9503E5DE1139F932A25754C0A961958260&sec=&spon= &pagewanted=all ("Ethnic categorization is a far more accurate measure of our population, and it is one that doesn't reinforce racial tensions or prejudices. Moreover, getting rid of racial categorization helps rid America of our biggest myth: that race is a meaningful, valid classification.")
74. Note that race-positive does not mean that the applicant has a positive view about race. It simply means that race shapes that applicant's sense of herself. Likewise, race-negative does not mean that the applicant has negative views about race. It simply means that the applicant does not believe that race figures meaningfully in her life.
75. ANNE MCGRATH, U.S. NEWS & WORLD REPORT: ULTIMATE GUIDE TO LAW SCHOOLS 37 (2d ed. 2006) ("Law schools across the country are reporting record numbers of applicants, so you'll be applying during the most intensely competitive era in history."); see also Finder, supra note 17, (reporting record low admission rates because of many applicants with very high academic credentials.).
76. ERIC OWENS, LAW SCHOOL ESSAYS THAT MADE A DIFFERENCE 7 (2d ed. 2006) ("[The law school admission process is] time-consuming, and it's not known being fun."); RUTH LAMMERT-REEVES, GET INTO LAW SCHOOL: A STRATEGIC APPROACH 61 (3d ed. 2006) ("However you obtain your applications, once they begin arriving you'll notice that no two are exactly alike. Some require one recommendation, others two or three. Some ask you to write one essay or personal statement, while others may ask for two or even three. Some have very detailed forms requiring extensive background information; others are satisfied with your name and address and very little else."). EssayEdge.com, Law School Personal Statement Services, http://www.essayedge.com/ law/editing/ (last visited May 27, 2008) ("[L]aw school admissions officials expect candidates to demonstrate an airtight handle on grammar and the ability to write strong, persuasive prose. Whether you are pursuing a J.D., LL.M., or J.S.D., your essay must be a self-marketing masterpiece, clearly proving your commitment, character, and intellectual maturity, without a hint of indecision or pompous insincerity."); V.W. Barber, College-Admission- Essay.com, How to Write a Law School Personal Statement, COLLEGE-ADMISSION-ESSAY.COM, http://www.college- admission-essay.com/lawschoolpersonalstatement.html (last visited Feb. 3, 2008) ("You have two pages or less to present to the admissions board a fabulous, honest, and interesting first impression so that you will stand out among thousands and thousands of other applicants. No pressure."). Many companies now provide services to help law school applicants through the burdensome process of writing the personal statement. See, e.g., ACCEPTED, Initial Law Essay Package, http://www.accepted.com/services/servicesdetails.aspx? serviceid=140 (last visited May 27, 2008); EssayEdge.com, Law School Personal Statement Services, http://www.essayedge.com/law/editing/ (last visited May 27, 2008); Kaplan: Test Prep & Admissions, Basic 3 Hour Package, http://www.kaptest.com/Law/Admissions_Consulting/ Admissions-Consulting- Packages/LS_admiss_3hour.html?cid=494903 (last visited May 27, 2008).
77. See Carbado & Gulati, Working Identity, supra note 33, at 1263-70 (describing how outsiders negotiate their identities to fit into mainstream, predominantly white workplaces).
78. We are not saying that people have real or fixed identities - an existential essence. Our point is rather than any particular moment in a person's life, it is reasonable to assume that that person as a sense of herself. Expressions like "it was so unlike me to do X" or "I betrayed myself by doing Y" capture this idea. See Carbado & Gulati, Working Identity, supra note 33, at 1261 n.2 (discussing working a sense of identity and distinguishing it from ascriptive or attributional identity).
79. DALTON CONLEY, HONKY at xi (2000).
80. Id. at xi-xii.
81. Id. at xii.
82. Id. at 37.
83. Id. at 37-38.
84. Id. at 38.
85. Id. at 39.
86. Id.
87. Id.
88. Id.
89. Id. at 40.
90. Id.
91. Id. at 40-41.
92. Id. at 41.
93. Id.
94. Id. at 42.
95. Id.
96. Id. at 42-43.
97. See MICHAEL K. BROWN, ET. AL, WHITEWASHING RACE: THE MYTH OF A COLORBLIND SOCIETY (2003) (enlisting social science literature to document the persistence of durable racial inequality among Blacks and whites resulting from the intergenerational accumulation of advantages for whites and the concomitant disaccumulation for blacks).
98. Barbara J. Flagg, "Was Blind, But Now I See": White Race Consciousness and the Requirement of Discriminatory Intent, 91 MICH. L. REV. 953, 969 (1993).
99. Id.
100. Id. at 957.
101. Id. at 971.
102. See Peggy McIntosh, White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women's Studies, in POWER, PRIVILEGE AND LAW: A CIVIL RIGHTS READER 22, 25-27 (Leslie Bender & Daar Braveman eds., 1995). For an application of this methodology to a discussion of men's participation in feminism, see Devon W. Carbado, Straight Out of the Closet, 15 BERKELEY WOMEN'S L.J. 76 (2000).
103. Id. at 105.
104. Id. at 95.
105. Id. (making this argument with respect to heterosexism).
106. See generally Devon W. Carbado, Race to the Bottom, 49 UCLA L. REV. 1283 (2002) (unpacking whiteness in terms of gender, sexual orientation, ethnicity and class).
107. See generally Harris, supra note 36.
108. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 44 (1991).
109. Id. at 46.
110. Symposium, Excluded Voices: Realities in Law and Land Reform, 42 U. MIAMI L. REV. 1 (1987).
111. WILLIAMS, supra note 108, at 47.
112. Id.
113. Id.
114. Id.
115. Id. at 47.
116. Id. at 48.
117. Id.
118. See Kimberlé Williams Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. CHI. LEGAL F. 139, 139 (examining the "problematic consequence of the tendency to treat race and gender as mutually exclusive categories of experience and analysis" and evaluating how "this tendency is perpetuated by a single-axis framework that is dominant in antidiscrimination law and that is also reflected in feminist theory and anti racist politics").
119. See, e.g., Holder v. Hall, 512 U.S. 874 (1994). In considering a voting rights challenge to a single member district county government, Thomas concurred with the majority's finding, but went further to condemn the concept of vote dilution and the remedy of majority-minority districts: [I]n resolving vote dilution actions we have given credence to the view that race defines political interest. We have acted on the implicit assumption that members of racial and ethnic groups must all think alike on important matters of public policy and must have their own "minority preferred" representatives holding seats in elected bodies if they are to be considered represented at all. The assumptions upon which our vote dilution decisions have been based should be repugnant to any nation that strives for the ideal of a color-blind Constitution. Id. at 903, 905-06 (Thomas, J., concurring).
120. In Adarand Constructors, Inc. v. Pena. 515 U.S. 200 ( 1995), Thomas concurred in the majority's finding that congressionally enacted affirmative action programs in federal contracting were unconstitutional. In his concurring opinion, he went further to condemn the entire premise of such remedial action. See id. at 240 (Thomas, J., concurring in part) ("I believe that there is a 'moral and constitutional equivalence' between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality.").
121. See Grutter v. Bollinger, 539 U.S. 306, 353 (2003) (Thomas, J., concurring in part, dissenting in part) ("The Constitution abhors classifications based on race, not only because those classifications can harm favored races or are based on illegitimate motives, but also because every time the government places citizens on racial registers and makes race relevant to the provision of burdens or benefits, it demeans us all.").
122. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007).
123. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (Thomas, J., concurring in part and dissenting in part) ("[T]hat these programs may have been motivated, in part, by good intentions cannot provide refuge from the principle that under our Constitution, the government may not make distinctions on the basis of race. As far as the Constitution is concerned, it is irrelevant whether a government's racial classifications are drawn by those who wish to oppress a race or by those who have a sincere desire to help those thought to be disadvantaged.").
124. One of the authors has been exploring the extent to which Thomas's jurisprudence draws upon and invokes black cultural, historical and political references. See Cheryl I. Harris, Doubting Thomas and the Anti-Identity Identity (draft manuscript on file with authors); see also Angela Onwuachi-Willig, Just Another Brother on the SCt?: What Justice Clarence Thomas Teaches Us About the Influence of Racial Identity, 90 IOWA L. REV. 931 (2005); 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 (2005).
125. 505 U.S. 717(1992).
126. Id. at 745 (Thomas, J., concurring) (citing W.E.B. Du Bois, Schools, 13 THE CRISIS 111, 112 (1917)).
127. 515 U.S. 70, 114 (1995) (Thomas, J., concurring).
128. See, e.g., Grutter v. Bollinger, 539 U.S. 306, 349-50 (2003) (Thomas, J., concurring in part and dissenting in part) (quoting Frederick Douglass's speech that was delivered to a group of abolitionists); United States v. Fordice, 505 U.S. 717, 745 (1992) (Thomas, J., concurring) (quoting W.E.B. DuBois's work).
129. See Fordice, 505 U.S. at 745 (Thomas, J., concurring) (quoting W.E.B. Dubois).
130. One major approach to the "establishment clause" of the First Amendment is a theory of neutrality. See CHEMERINSKY, supra note 34, § 12.2.1, at 1193 (3d ed. 2006) ("[T]He establishment clause says that the government must be neutral toward religion" and "'prohibit[s] classification in terms of religion either to confer a benefit or to impose a burden.'") (citing Philip Kurland, Of Church and State and the Supreme Court, 29 U. CHI. L. REV. 1, 96 (1961)). At the same time the First Amendment is said to protect the free exercise of religion. See CHEMERINSKY, supra note 34, § 12.3.1, at 1247. Similarly Thomas could be said to be asserting that race and racial identity is a private matter and that one's racial identity, like one's religious beliefs, ought not to be imposed by government. Whether Thomas's racial philosophy is sound on this and other dimensions we do not consider here. That is part of another project. See Harris, Doubting Thomas, supra note 124.
131. CLARENCE THOMAS, MY GRANDFATHER'S SON at x (2007).
132. Id. at 2.
133. Id. at 3-4.
134. Id. at 4-5.
135. Id. at 5.
136. Id. at 6.
137. Id. at 7.
138. Id. at 8-9.
139. Id. at 13-14.
140. Id. at 21.
141. Id. at 21-22.
142. Id. at 26-21.
143. Proposal 2 went into effect on December 23, 2006. Implementation was temporarily enjoined in connection with a lawsuit filed challenging its constitutionality, however, the injunction was stayed by the Sixth Circuit. See Coal, to Defend Affirmative Action v. Granholm, 473 F.3d 237, 253 (6th Cir. 2006). The universities began implementation of Proposal 2 after July 1, 2007, and applied the new requirements to the 2006-2007 admissions cycle. Under the new policy, race was eliminated from the admissions criteria but other factors such as alumni connections, and socioeconomic status and athletic ability continued to be evaluated. Mary Sue Coleman, President, University of Michigan, Proposal 2 Next Steps (Jan. 10, 2007), http://www.umich.edu/pres/ speeches/070110prop2.html.
144. In so doing Phillips might be emulating the efforts of Ward Connerly in California to erase the box indicating race from the application in order to avoid using the information in making admissions decisions. See DOUGLASS, supra note 19, at 205 (noting university administrators' resistance to Connerly's proposal on the grounds that it eliminated needed data on the effects of admissions changes, and ultimate compromise in which the data was electronically erased from the applications before they were read by admissions staff).
145. See Daniel M. Wegner, David J. Schneider, Samuel R. Carter III, & Teri L. White, Paradoxical Effects of Thought Suppression, 53 J. PERSONALITY & SOC. PSYCHOL. 5, 6 (1987) ("Whether people are instructed to ignore the information before they encounter it... or are told to disregard it afterwards..., they tend to incorporate it into subsequent judgments nonetheless."); Anthony Page, Batson 's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. REV. 155, 211 n.286 (2005) (citing Wegner for the proposition that "it is notoriously difficult for people to consciously avoid thoughts").
146. Since the majority of people enrolled in graduate school are white, the reasonable presumption is that the applicant pool is predominately white as well. See OFFICE OF RESEARCH & POLICY ANALYSIS, COUNCIL OF GRADUATE SCHOOLS, GRADUATE ENROLLMENT AND DEGREES: 1996 TO 2006, available at http://www.cgsnet.org/portals/0/pdf/R_ED2006.pdf.
147. This presumption derives from the fact that white identity is normative, or put another way, whiteness "goes without saying." See Felicia Pratto et al., When Race and Gender Go Without Saying, 25 SOC. COGNITION 221, 223 (2007) ("White Americans generally presume that being White and male is normative."); see also Steven Stroessner, Social Categorization by Race or Sex: Effects of Perceived Non-Normalcy on Response Times, 14 SOC. COGNITION 247, 248-249 (1996) (noting that particular category memberships such as white in American society are perceived as more "normal" than being Black due to the prominence of whites in media representations, the historical dominance of whites over Blacks, and the fewer number of Blacks than whites). Thus, when a racial identity is unspecified the "cultural expectation" is that the person is white. See Thierry Devos & Mahzarin R. Banaji, American = White?, 88 J. PERSONALITY & SOC. PSYCHOL. 447, 449 (2005) ("In Western cultures, White racial identity and male gender are treated as cultural expectations. Evidence for this 'White male norm' hypothesis comes from experiments showing that membership in nonnormative groups receives greater attention than membership in normative groups because of its incongruence.").
148. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring in part and concurring in judgment) ("In my view, government can never have a 'compelling interest' in discriminating on the basis of race in order to 'make up' for past racial discrimination in the opposite direction.... [U]nder our Constitution there can be no such thing as either a creditor or debtor race. That concept is alien to the Constitution's focus upon the individual..."); see also Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 289-290 (Powell, J.) (1978) ("The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color.").
149. THOMAS, supra note 131, at 7.
150. 163 U.S. 537 (1896).
151. THOMAS, supra note 131, at 2.
152. This is particularly so given the fact the one-drop rule (roughly, the notion that any amount of African ancestry renders one black), see, e.g., STATES' LAWS ON RACE AND LAW (Pauli Murray ed., 1997) (providing a history of state laws that instituted one-drop rules), continues to play an enormous role in defining racial identity; see also Nancy Leong, Multiracial Identity and Affirmative Action, 12 ASIAN PAC. AM. L.J. 1, 31-32 ("The 'one-drop' rule has a long history in American society, and continues to shape the way many people think about race.").
153. THOMAS, supra note 131, at 21-22.
154. See EssayEdge.com, supra note 76 (stating that "your essay must be a self-marketing masterpiece, clearly proving your commitment, character, and intellectual maturity, without a hint of indecision or pompous insincerity."); see also, Dennis J. Shields, A View from the Files: Law School Admissions and Affirmative Action, 51 DRAKE L. REV. 731, 737 (revealing how "[t]he application essays may (and often do) have a significant positive or negative impact on the ultimate decision whether to admit a particular candidate. A well written essay, beyond revealing the applicant to be an excellent writer, may reflect thoughtful introspection, potential contributions, and insight into the quality of student and lawyer the candidate has the potential to become."). When providing advice to applicants, some schools encourage students to focus on the substance of the essay because the admissions officers are interested in getting to know their personal experiences. See University of Michigan Office of Undergraduate Admissions, Tips for Writing a Great Essay, http://www.admissions. umich.edu/essay/tips/ (last visited Jul. 8, 2008) (suggesting applicants to "[b]e authentic" because the office "want[s] to hear [the applicant's] voice in [her] response - the experiences, opinions and values that have shaped [her]" and to "[f]eel free to write on something you are passionate about so we can get to know you better."). Although most books on college and university admissions suggest having strong form (spelling, grammar, etc.), they also greatly stress the critical importance of substance. See OWENS, supra note 76, at 42 (revealing that admissions officers want to hear more about "the kind of experience that led to the formulation of the candidate's attitudes and beliefs" and "a history of disadvantage, ethnic status, [and so on]... [because it] is very valuable to the admissions committee."); see also LAMMERT-REEVES, supra note 76, at 76-79 (providing the advice that essays should "[t]ell [s]tories," "[be] interesting," "[s]tart with a [g]reat [l]ead," "[h]ave a [g]eneral [t]heme," and "[e]xpress [o]pinions."). According to one report: The analyses reported here do not diminish the value of the personal statement for the various purposes described at the outset of this paper - for example, as a source of information about valued personal qualities and a means for learning about an applicant's goals and aspirations. The results of our research do, however, cast some rather serious doubt on the validity of the personal statement as an indicator of writing skill, even when carefully evaluated. If graduate (and other) admissions committees are to employ personal statements to evaluate writing skill, it would seem prudent to establish the personal statement as a clearer manifestation of writing proficiency than we have found it to be. Donald E. Powers & Mary E. Fowles, The Personal Statement as an Indicator of Writing Skill: A Cautionary Note, 4 EDUC. ASSESSMENT 75, 85-86 (1997), available at http://www.informaworld.com/smpp/content∼content=a784398048∼db=all. Moreover, some universities (especially at the undergraduate level) require additional statements that are used as writing samples (for form instead of substance). For example, Reed College requires a common application, a supplemental essay for the purpose of determining match between applicant and College ("Why Reed?") and a graded writing sample. See Reed College, Reed Application Supplement, available at http://www.reed.edu/ apply/applying_to_reed/applications/Reed07_app_supp.pdf. Pomona College also requires a common Application, plus Pomona Supplement, which has a strongly recommended but "optional" second essay, to provide more personal information, evaluated for both substance and form: "You should view this as an opportunity to share additional information about yourself with the Admissions Committee. The Admissions Committee is interested in both your ideas and in how you express them and will read your writing with regard to both content and style." Pomona College, 2007-2008 Required Common Application Supplement, available at: http://www.pomona.edu/adwr/admissions/Forms/ RequiredSupplement.pdf.
155. See supra note 38 and accompanying text (discussing research supporting the idea that blacks more so than whites see race as a central part of their identity). It is precisely the notion that a policy that is neutral on its face but that disparately impacts a particular group is not race neutral that helps to explain the broad literature criticizing the intent standard articulated in Washington v. Davis, 426 U.S. 229 (1976). See Charles R. Lawrence III, The Id, the Ego, and Equal Protection; Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); see also Alan David Freeman, Legitimizing Racial Discrimination Through Anti-Discrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978) (explaining the perpetrator perspective similarly criticizing intent).
156. See Seema Mehta, UCLA Accused of Illegal Admissions Practices, L.A. TIMES, Aug. 30, 2008, at B1, available at http://www.latimes.com/news/local/la-me-ucla30-2008aug30,0,6489043.story. The question of whether there is a difference between considering race and considering racial experience surfaced recently in Coalition To Defend Affirmative Action v. Regents of the University of Michigan, 539 F. Supp. 2d 924 (E.D. Mich. 2008), where plaintiffs challenged Proposal 2 as unconstitutional. The plaintiffs argued that because race is an important part of how minority students choose to define themselves, state universities cannot delete race and selectively deny applicants the opportunity to have central aspects of their identity considered; this creates an impermissible distinction based on race in violation of the Fourteenth Amendment. See Memorandum of Law in Support of the Cantrell Plaintiffs' Motion for Summary Judgment, Coal. To Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp. 2d 924 (E.D. Mich. 2008) (Nos. 06-15024, 06-15637), 2007 WL 4595210. In response, supporters of Proposal 2 countered that while there might be a distinction "between considering race as a per se plus factor in allocating admissions and financial aid" which would be proscribed by Proposal 2 and permitting consideration of "an applicants' unique experiences that might have racial overtones," "any such distinction whether valid or not in principle, as highly tenuous in practice, and therefore does not dispute the Cantrell Plaintiffs' implied assumption that Proposal 2's prohibition of 'preferential treatment' on the basis of race prevents the Universities from deliberately providing a forum, in their application process, for applicants... to highlight their 'racial identity' to sympathetic reviewers." See Defendant-Intervenor Eric Russell's Memorandum in Opposition to the Cantrell Plaintiffs' Motion for Summary Judgment at *7 n.3, Coal. To Defend Affirmative Action v. Regents of the Univ. of Mich., 539 F. Supp. 2d 924 (E.D. Mich. 2008) (Nos. 06-15024, 06-15637), 2008 WL 2155059. The advocates for Proposal 2 contend that the University of Michigan has in fact improperly provided such a forum in that the University of Michigan's Application for Undergraduate Admission quotes a speech from the University President: defying Proposal 2 and direct[ing] all undergraduate applicants to '[c]omment on how your personal experiences and achievements would contribute to the diversity of the University of Michigan. [citation omitted] In light of [the President's] speech, it is difficult to view this mandatory essay without cynicism, indeed, as a calculated ploy to encourage minority applicants to publish racial information, otherwise forbidden by law, to a sympathetic admissions committee." In the context of Proposition 209 similar allegations have been made regarding admissions to California schools. See Richard Sander, Colleges Will Just Disguise Quotas, L.A. TIMES, June 30, 2003 (asserting that Boalt evaded the law in the wake of Proposition 209 and that UCLA School of Law was engaged in different but equally problematic "rigging of their admissions systems").
157. Philips could form this conclusion because of stereotypes about blacks as having a poor work ethic. See, e.g., Timothy Brezina & Kenisha Winder, Economic Disadvantage, Status Generalization, and Negative Racial Stereotyping by White Americans, 66 SOC. PSYCH. Q. 402 (2003); Kathryn M. Neckerman & Joleen Kirschenman, Hiring Strategies, Racial Bias, and Inner-City Workers, 38 SOC. PROBS. 433, 440 (1991) ("Employers were especially likely to say that inner-city blacks lacked the work ethic, had a bad attitude toward work, and were unreliable; they also expected them to lack skills, especially basic skills. About half said that these workers had a poor work ethic."). This is not to say that Philips would be consciously thinking that blacks are lazy. Instead, she could be drawing on implicit biases. See Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1494 (2005) ("[R]esearch demonstrates that most of us have implicit biases in the form of negative beliefs (stereotypes) and attitudes (prejudice) against racial minorities. These implicit biases, however, are not well reflected in explicit self-reported measures. This dissociation arises not solely because we try to sound more politically correct. Even when we are honest, we simply lack introspective insight."); see also Robinson, supra note 38, at 1139.
158. Some suggest that blacks are overly focused on race. See, e.g., FRANCIS FUKUYAMA, TRUST: THE SOCIAL VIRTUES AND THE CREATION OF PROSPERITY 295 (1996) ("[W]hites complain that blacks are too race conscious... ."); see also Robinson, supra note 38 (manuscript at 27-36) (discussing the differences between attentiveness to race and the disparity of incentives to attend to and perceive racial discrimination between blacks and whites); GEORGE YANCEY, WHO IS WHITE? LATINOS, ASIANS, AND THE NEW BLACK/ NONBLACK DIVIDE 100-04, 182-86 & tbl.A (in response to questions whether there was too much talk about race, very few black respondents agreed while most whites thought it was true). Sometimes, this idea is expressed via the claim that blacks all too often "play the race card." See, e.g., Kimberle Crenshaw, Playing Race Cards: Constructing a Pro-active Defense of Affirmative Action, 16 NAT'L BLACK L.J. 196 (1999); see also Robinson, supra note 38, at 1101.
159. See, e.g., Berkeley Law, Application Process, supra note 19.
160. See Ian F. Haney Lopez, Race, Ethnicity, and Erasure: The Salience of Race to Laterit Theory, 85 CALIF. L. REV. 1143 (1997) (exploring whether Latinas/os should be characterized as a race or an ethnicity and noting the fact that, formally, Latinas/os were classified as white).
161. See Hernandez v. Texas, 347 U.S. 475 (1954) (decided the same year as Brown v. Bd. of Educ., 347 U.S. 483 (1954)). In Hernandez, the Supreme Court refused to treat Mexican Americans as a distinct racial but nevertheless found an equal protection violation because of widespread evidence of social exclusion. Id. For an historical treatment of the racialization of Mexicans, see LAURA GOMEZ, MANIFEST DESTINIES (2007). See also IAN HANEY- LOPEZ, RACISM ON TRIAL: THE CHICANO FIGHT FOR JUSTICE (2003) (discussing the relationship between the racialization of Mexican Americans as non-white (Brown) and the establishment of the Chicano movement).
162. Margaret Montoya, Mascaras, Trenzas, y Grednas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 HARV. WOMEN'S L.J. 185 (1994).
163. Id. at 186-87.
164. Id. at 187.
165. Id. at 187-88.
166. Id. at 188.
167. Id. at 189-90.
168. Id. at 190.
169. Id. at 190-91.
170. Id. at 192.
171. Id. at 193-94.
172. Id. at 196-97.
173. Id. at 197.
174. Id. at 197-98.
175. Id. at 206.
176. Id. at 218.
177. Id. at 219.
178. Id.
179. Id.
180. Id.
181. Id. at 220.
182. See generally Carbado & Gulati, Working Identity, supra note 33.
183. See id. at 1304 (discussing "partial passing").
184. See Harris, supra note 36 (discussing the incentives to and pass and the costs of doing so).
185. See Kenji Yoshino, Covering, 111 YALE L.J. 769 (2002).
186. See Grutter v. Bollinger, 539 U.S. 306 (2003) (affirming the constitutionality of diversity as a justification for affirmative action); see also Devon W. Carbado and Mitu Gulati, What Exactly is Racial Diversity?, 91 CALIF. L. REV. 1149 (2003) (book review) (offering different formulations of racial diversity).
187. See supra note 147 and accompanying text (referring to studies that suggest that when decision-makers lack racial information about a person, they assume that the person is white).
188. See also Paulette Caldwell, supra note 71 (discussing the particular racial meaning and significance of black women's hair).
189. See generally Crenshaw, supra note 118 (criticizing anti-discrimination law for adopting a "single-axis" framework under which women of color have to decide whether to sound their discrimination claim in the language of race or gender - but not both).
190. See generally Gayatri Chakaravorty Spivak, Can the Subaltern Speak?, in MARXISM AND THE INTERPRETATION OF CULTURE 271, 313 (Cary Nelson & Lawrence Grossberg eds., 1988).
191. See, e.g., Media Release, American Civil Rights Institute, Connerly Declares Supreme Court Decision "Glorious Victory" (Jun. 28, 2007), available at http://www.acri.org/pr_062807.html (last visited June 9, 2008) (declaring that Supreme Court now recognizes that "[r]ace has no place in American public life").
192. Justice Thomas has been a vocal proponent of colorblindness and race neutrality, as well as and advocate of the proposition that race should not matter in governmental decision-making. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240-41 (1995) (Thomas, J. concurring) (stating his belief that there is a moral and constitutional equivalence between laws designed to subjugate a race and those that distribute benefits on the basis of race in order to foster some current notion of equality).
193. This section builds on the important work of Neil Gotanda on colorblindness. See Neil Gotanda, A Critique of "Our Constitution is Colorblind, " 44 STAN. L. REV. 1 (1991).
194. We suggest Justices Scalia, Alito, and Roberts in particular because, in their opinions, they have endorsed the principles of colorblindness and race-neutrality and have embraced the notion that race should not matter in governmental decision-making.
195. See, e.g., MELVIN OLIVER & THOMAS SHAPIRO, BLACK WEALTH, WHITE WEALTH (2006); DALTON CONLEY, BEING BLACK: LIVING IN THE RED (1999); MICHAEL BROWN ET. AL., WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY (2003).
196. See THOMAS, supra note 131, at 62 (describing his growing identity as a conservative who believes in the notion of individual rights: "we are all individuals... . What I wanted was for everyone - the government, the racists, the activists, the students, even Daddy - to leave me alone so that 1 could finally start thinking for myself").
197. As Gotanda argues, "Nonrecognition differs from nonperception. Compare color-blind nonrecognition with medical color-blindness. A medically color-blind person is someone who cannot see what others can.... To be racially color-blind, on the other hand, is to ignore what one has already noticed." Gotanda, supra note 193. at 18.
198. See Linda Hamilton Krieger, The Content of Our Categories: A Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 STAN. L. REV. 1161, 1240 (1995).
199. See Eleanor Rosch, Human Categorization, in STUDIES IN CROSS-CULTURAL PSYCHOLOGY 1, 40 (Neil Warren ed., 1977) (noting that social categories that help people explain and function in their natural or social environment are not going to be discarded simply as a result of an admonishment not to consider it).
200. Id. at 19.
201. Gotanda, supra note 193, at 18.
202. 448 U.S. 448 (1980).
203. Id. at 532.
204. This includes claims of both cultural bias as well as structural bias. On cultural bias see, e.g., David M. White, An Investigation into the Validity and Cultural Bias of the Law School Admission Test, in TOWARDS A DIVERSIFIED LEGAL PROFESSION: AN INQUIRY INTO THE LAW SCHOOL ADMISSION TEST, GRADE INFLATION, AND CURRENT ADMISSION POLICIES (David M. White, ed., 1981). While claims that the content is culturally biased have been widely disputed, the assertion that the way in which the tests are structured ensures unequal results has not been addressed. See William C. Kidder & Jay Rosner, How the SAT Creates "Built-in Headwinds ": An Educational and Legal Analysis of Disparate Impact, 43 SANTA CLARA L. REV. 131 (2002); Hidden Biases Continue to Produce Powerful Headwinds for College-Bound Blacks Aiming for Higher Scores on the SAT, 41 J. BLACKS HIGHER EDUC. 90 (2003).
205. See Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613 (1997); Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. PERSONALITY & SOC. PSYCH. 797 (1995).
206. See OLIVER & SHAPIRO, supra note 195. This is particularly problematic given the link between class and performance on standardized tests. See Susan Sturm & Lani Guinier, The Future of Affirmative Action: Reclaiming the Innovative Ideal, 84 CALIF. L. REV. 953, 987-92 (1996).
207. See GARY ORFIELD, DISMANTLING DESEGREGATION: THE QUIET REVERSAL OF Brown v. Board of Education (1996).
208. See Walter R. Allen, The Color of Success: African-American College Student Outcomes at Predominantly White and Historically Black Colleges and Universities, 62 HARV. EDUC. REV. 26 (1992).
209. See Jennifer M. Russell, Book Note, Stuck at the Bottom: Race, Work, and the American Dream, 3 AFR.-AM. L. & POL'Y REP, 325 (1997) (reviewing WILLIAM JULIUS WILSON, WHEN WORK DISAPPEARS: THE WORLD OF THE NEW URBAN POOR (1996)); Matthijs Kalmijn & Gerbert Kraaykamp, Race, Cultural Capital, and Schooling: An Analysis of Trends in the United States, 69 SOC. OF EDUC. 22 (1996).
210. See Harris & Narayan, supra note 14, at 13 (questioning the concept of merit as racially neutral); see also Lani Guinier, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 191 (2003) (discussing how merit is racialized: "Indeed, affirmative action opponents tend to embrace two internally contradictory rubrics: 'radical individualism' and 'quantifiable merit,' both of which are infused with, and in denial about, the collective experience of race"); Roithmayr, supra note 14.
211. See Richard Nisbett, "All Brains are the Same Color," N.Y. TIMES, Dec. 9, 2007 (reporting the comments of James Watson, the 1962 Nobel Laureate, who "recently asserted that he was 'inherently gloomy about the prospects of Africa' and its citizens because "all of our social policies are based on the fact that their intelligence is the same as ours - whereas all the testing says not really"); see also William Saletan, Created Equal: Race, Genes and Intelligence, SLATE, Nov. 28, 2007 (asserting that the IQ deficit of blacks relative to whites is partially the result of genetic differences).
212. See Richard Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004) arguing that blacks are frequently mismatched to institutions where their academic credentials are substandard and they are therefore unable to compete).
213. President Lyndon B. Johnson's Commencement Address at Howard University: "To Fulfill These Rights" (June, 4, 1965), in 2 PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: LYNDON B. JOHNSON, 1965, entry 301, at 635-40 (1966).
214. 438 U.S. 265 (1978), 306 n.43 (1978)
215. Id. at 306 n.43 (Powell, J., plurality opinion).
216. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995). Moreover, the court has refused to draw a distinction between what some refer to as benign racial consciousness, on the one hand, and invidious racial consciousness, on the other.
217. See, e.g., Linda Greenhouse, The Supreme Court: Affirmative Action; Justices Look for Nuance in Race-Preference Case, N.Y. TIMES, April 2, 2003, at A1 ("Opponents of affirmative action came to the Supreme Court today to make an absolute case against race-conscious government policies but found the justices impatient with absolutes and hungry for nuance."); Neil A. Lewis, Bush and Affirmative Action: Constitutional Questions; President Faults Race Preferences as Admission Tool, N.Y. TIMES, Jan. 16, 2003, at Al ("President Bush offered a sweeping denunciation of direct preferences for racial minorities in university admissions today and said his administration would file a brief with the Supreme Court urging that the affirmative action admissions policies at the University of Michigan be declared unconstitutional."); Tamar Lewin, Colleges Regroup After Voters Ban Race Preferences, N.Y. TIMES, January 26, 2007, at Al ("With Michigan's new ban on affirmative action going into effect, and similar ballot initiatives looming in other states, many public universities are scrambling to find race-blind ways to attract more blacks and Hispanics."); Tamar Lewin, Campaign to End Race Preferences Splits Michigan, N.Y. TIMES, October 31, 2006, at A1 ( "Three years after the Supreme Court heard Jennifer Gratz's challenge to the University of Michigan's affirmative action policy, she is still fighting racial preferences, this time in a Michigan ballot initiative."); All Things Considered: Michael Griffin, Political Editor of the Orlando Sentinel, Discusses Policy Banning Race-Based Admissions in State Universities and Racial Preferences in Government Contracts (National Public Radio broadcast, Nov. 11, 1999) ("Florida's Governor Jeb Bush has ordered an end to race-based admissions in state universities and racial preferences in government contracts. A move has been underway in Florida to hold a state-wide vote on banning affirmative action."); Morning Edition: Bush Administration's Emerging Stand on Affirmative Action Policies (National Public Radio broadcast, Aug. 7, 2001) ("The Bush administration is expected to help defend an affirmative action program before the US Supreme Court. Sources say the Justice Department will file a brief in support of a federal contracting program by the end of the week. That makes some conservatives angry. They say the Bush administration is missing an opportunity to roll back racial preferences.").
218. Kimberlé Crenshaw, Framing Affirmative Action, 105 MICH L. REV. FIRST IMPRESSIONS 123 (2007), at http://michiganlawreview.org/firstimpressions/vol105/crenshaw.pdf; see also African American Policy Forum, 13 Myths About Affirmative Action, http://aapf.org/projects/myths (last visited May 28, 2008); Harris & Narayan, supra note 14.
219. Consider this point with respect to law enforcement. Should we take race into account in determining whether a person is seized for purposes of the Fourth Amendment? See Devon W. Carbado, (E)racing the Fourth Amendment, 100 MICH. L. REV. 946 (2002) (discussing the absence of a serious engagement with race in the context of Fourth Amendment jurisprudence). Should the police be prohibited from acting on race-based suspect descriptions? See generally R. Richard Banks, Race-Based Suspect Descriptions and Colorblind Equal Protection Doctrine and Discourse, 48 UCLA L. REV. 1075 (2001) (urging rethinking about the line we draw between racial profiling and the employment of race-specific suspect descriptions). Should prisoners be separated based on race? See Johnson v. California, 543 U.S. 499 (2005). Part of reasons we do not have full and robust public discussions about the foregoing question is because of the ease with which we move from the normative claim that race should not matter to the normative claim that race does not matter. See also Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1535 (making a similar point about empirical and normative claims: "as a normative matter, we must not conflate 'is' and 'ought.' Even if it is descriptively true that we are hardwired to have implicit bias in favor of our 'race' (or clumps of people loosely affiliated with today's social construction of race), that says nothing about what we should do about it normatively.").
220. 163 U.S. 537, 559 (1896) (Harlan, J. dissenting).
221. U.S. CONST. art I, § 2, cl. 3 ("Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons."); see also WILLIAM WIECEK, THE SOURCES OF ANTISLAVERY CONSTITUTIONALISM IN AMERICA, 1760-1848 (1977) (enumerating the numerous ways that slavery was engrafted into the Constitution).
222. Devon W. Carbado, Racial Naturalization, 57 AM. Q. 633 (2005) (discussing the process by which the Fourteenth Amendment granted citizenship to blacks as an example of racial naturalization).
223. 169 U.S. 649 (1898)
224. Id. at 705-32.
225. Id.
226. Plessy v. Ferguson, 163 U.S. 537, 561 (1896) (Harlan, J., dissenting).
227. On exclusion of Chinese from citizenship, see In re Ah Yup, 5 Sawy. 155, 1 F. Cas. 223 (1878) (denying application of Chinese for naturalization); Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882) (repealed 1943). For a racial critique of Marian's dissent, see Carbado, supra note 106. See also Carbado, Racial Naturalization, supra note 222; Cheryl I. Harris, The Story of Plessy v. Ferguson: The Death and Resurrection of Racial Formalism, in CONSTITUTIONAL LAW STORIES, 181, 222 (Michael Dorf ed., 2004). Gabriel Chin was one of the first to complicate our understanding of Justice Marian's dissent. See Gabriel J. Chin, The Plessy Myth: Justice Harlan and the Chinese Cases, 82 IOWA L. REV. 151 (1996).
228. See Romer v. Evans, 517 U.S. 620, 623 (1996) ("One century ago, the first Justice Harlan admonished this Court that the Constitution 'neither knows nor tolerates classes among citizens.' Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake.") (citing Justice Harlan's dissent in Plessy v. Ferguson, 163 U.S. 537, 559 (1896)); David H. Gans, The Unitary Fourteenth Amendment, 56 EMORY L.J. 907, 921 (2007) ("The Equal Protection Clause ensures the integrity of that constitutional definition of citizenship, forbidding government from legislating favored and disfavored classes of citizens. The first Justice Harlan elegantly captured this idea in his famous Plessy dissent."); Allison Orr Larsen, Perpetual Dissents, 15 GEO. MASON L. REV. 447, 448 (2008) ("On the one hand, history has glorified many great dissenters on the Supreme Court (Justice Holmes in Lochner, Justice Harlan in Plessy) whose views were eventually redeemed and whose words seem all the wiser in the present when echoed from the past."); William H. Pryor, Jr., Not-So-Serious Threats To Judicial Independence, 93 VA. L. REV. 1759, 1776 (2007) ("The judiciary, of course, is not perfect. The twin evils of slavery and segregation were, to say the least, exacerbated by two decisions of the Supreme Court. Justice Harlan's dissent in Plessy v. Ferguson was prophetic: 'In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case.'"); Julie Chi-hye Suk, Equal By Comparison: Unsettling Assumptions of Antidiscrimination Law, 55 AM. J. COMP. L. 295, 336 (2007) ("In his now-celebrated dissenting opinion in Plessy v. Ferguson, Justice Harlan stated, 'Our constitution is color-blind.'"); Alexander Tsesis, A Civil Rights Approach: Achieving Revolutionary Abolitionism Through the Thirteenth Amendment, 39 U.C. DAVIS L. REV. 1773, 1829 (2006) ("At the turn of the twentieth century, Justice Harlan understood better than the politicians and theorists before him the extent of harm a segregated society would cause ostracized minorities.").
229. See Gotanda, supra note 193, at 16 ("This technique of 'noticing but not considering race' implicitly involves recognition of the employee's racial category and a transformation or sublimation of that recognition so that the racial label is not 'considered' in the employer's decisionmaking process.").
230. Chuck Lawrence's seminal article introduced the idea of unconscious discrimination into the legal domain. See Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987). Linda Hamilton Krieger developed this idea further in The Content of Our Categorizations: A Cognitive Bias Approach to Discrimination, 47 STAN. L. REV. 1161 (1995). Jerry Kang has explicated the relevance of the Implicit Association Test (IAT) and social psychology more generally, for race and legal analysis. See Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489 (2005). See also Jerry Kang & Mahzarin R. Banaji, Fair Measures: A Behavioral Realist Revision of "Affirmative Action," 94 CALIF. L. REV. 1063 (2006).
231. See, e.g., Gregory Mitchell & Phillip E. Tetlock, Antidiscrimination Law and the Perils of Mindreading, 67 OHIO ST. L.J. 1023 (2006) (arguing that implicit bias research should not be accepted as legislative authority or litigation evidence until more investigation as to its level of scientific predictability and broader societal value has been established).
232. See Jerry Kang, Cyber-Race, 113 HARV. L. REV. 1130, 1155 ("By making it easier for us to wear a racial veil, cyberspace promotes racial anonymity. This prompts fantasies about realizing Martin Luther King, Jr.'s dream in cyberspace. In the digital remix version, people are judged by the content of their text-characters, not the color of their skin.").
233. See generally Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331 (1988); Neil Gotanda, A Critique of "Our Constitution is Color-Blind," 44 STAN. L. REV. 1 (1991); Cheryl I. Harris, Equal Treatment and the Reproduction of Inequality, 69 FORDHAM L. REV. 1753 (2001).
234. See Gratter v. Bollinger, 539 U.S. 306, 329 (2003) ("In announcing the principle of student body diversity as a compelling state interest, Justice Powell invoked our cases recognizing a constitutional dimension, grounded in the First Amendment, of educational autonomy: 'The freedom of a university to make its own judgments as to education includes the selection of its student body.' From this premise, Justice Powell reasoned that by claiming '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.' Our conclusion that the Law School has a compelling interest in a diverse student body is informed by our view that attaining a diverse student body is at the heart of the Law School's proper institutional mission, and that 'good faith' on the part of a university is 'presumed' absent 'a showing to the contrary.'") (citations omitted).
235. See generally 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 (2004).