Against individualized consideration

Indiana Law Journal

Volumn 83, Issue 4, 2008, Pages 1405-1422

  Rodríguez, Cristina M ^a  

^a NEW YORK UNIVERSITY SCHOOL OF LAW   (United States)

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[No Author keywords available]

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EID: 56049116713     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (64)

1. Grutter v. Bollinger, 539 U.S. 306, 393 (2003) (Kennedy, J., dissenting).
2. See Brief for the Petitioner at 43, Grutter v. Bollinger, 539 U.S. 306 (2003) (No. 02-241), available at http://www.cir-usa.org/legal_docs/ grutter_v_bollinger_SupCt_brief.pdf.
3. Id. at 47.
4. See id. at 43.1 explore the logical basis for these distinctions infra Part III.
5. The Court cited heavily to Justice Powell's opinion in University of California Regents v. Bakke, 438 U.S. 265, 315-20 (1978), in which he emphasized use of race as a mere "plus" factor, or one among many factors in an applicant's file, as essential to a constitutional affirmative action plan.
6. See Gratz v. Bollinger, 539 U.S. 244, 255 (2003).
7. Id. at 272.
8. See Grutler, 539 U.S. at 336-37 (discussing the "holistic, individualized" review given to each applicant by the University of Michigan Law School, according to which race is considered alongside a wide range of other variables).
9. For a discussion of the Court's use of individualized consideration over time and an argument that the Court has made such consideration the touchstone of narrow tailoring analysis in order to avoid balkanization, or inter-group tensions, see Neil S. Siegel, Race-Conscious Student Assignment Plans: Balkanization, Integration, and Individualized Consideration, 56 DUKE L.J. 781 (2006). Siegel notes that the Court struck down the college admissions plan in Gratz v. Bollinger because it gave a clearly identifiable weight to race-a policy likely to lead to resentment from other groups-but upheld the law school plan because the use of race was camouflaged from the public, which meant that any resentment the plan engendered was likely outweighed by the balkanization that would have resulted from prohibiting the state from taking account of race to address inequalities. See id. at 798-99; see also Robert C. Post, Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 56-77 (2003) (noting that the distinction between the two plans underscores that appearances do matter, and that the Court stuck a balance between constitutional law and culture in a way that legitimized the concerns of both sides of the dispute).
10. For the purposes of this short Artice, I use the terms race and ethnicity interchangeably, unless specifically noted otherwise.
11. 438 U.S. 265 (1978).
12. Grutter, 539 U.S. at 334.
13. Id. at 337.
14. 127 S. Ct. 2738 (2007).
15. The statements in Parents Involved that emphasized individualized consideration came from Justices who either were in dissent in Grutter (Kennedy) or were not on the Court when Grutter was decided (Roberts).
16. In his plurality opinion, Chief Justice Roberts observed that the Court in Grutter "was exceedingly careful in describing the interest... as 'not an interest in simple ethnic diversity'.. . but rather a 'far broader array of qualifications and characteristics' in which race was but a single element." Parents Involved, 127 S. Ct. at 2763. He also emphasized that the Seattle and Louisville plans, which classify "every schoolchild as black or white" and use that "classification as a determinative factor in assigning children to achieve pure racial balance," could be regarded as less burdensome than the individualized consideration upheld in Grutter, in which the Court emphasized the "importance of individualized consideration" as "paramount," and upheld a plan in which "race was one factor in a highly individualized, holistic review." Id. at 1264.
17. The plans adopted in Seattle and Louisville differed in their details, but they each took account of the race of students, along with sibling attendance and geography, to ensure that the student populations of the districts' schools remained racially integrated. See Parents Involved, 127 S. Ct. at 2746-50.
18. Id. at 2794 (Kennedy, J., concurring). Justice Kennedy noted that if Gratz were the measure for judging, the plans in Seattle and Louisville would be a fortiori invalid, because the Gratz plan placed much less emphasis on race. Id. Indeed, the college admissions plan at issue in Gratz, despite being mechanical in nature, took into account many more factors than the Seattle and Louisville plans, assigning points to applicants for their academic, artistic, athletic, and socioeconomic backgrounds, among other things, in addition to their racial and ethnic backgrounds. See Gratz v. Bollinger, 539 U.S. 244, 293-94 (2003) (Souter, J., dissenting).
19. Parents Involved, 127 S. Ct. at 2796 (Kennedy, J., concurring).
20. This criticism of individualized consideration is similar to Justice Thomas' s critique of affirmative action generally. In his concurrence and dissent in Grutter v. Bollinger, 539 U.S. 306, 349-50 (2003) (Thomas, J., concurring in part and dissenting in part), as in his concurrence in the school desegregation case Missouri v. Jenkins, 515 U.S. 70, 114-22 (1995) (Thomas, J., concurring), Thomas assails affirmative action and race-conscious decision making for the ways in which it permits the majority to patronize blacks for the majority's own ends. When he deploys Frederick Douglass's admonition to whites to let blacks rise and fall on their own merits, Grutter, 539 U.S. at 349-50, Thomas is arguing against the attempt to mold blacks in the white image, calling on whites to retire their assumptions that blacks can only succeed with the help and in the presence of whites. The force of this critique informs my opposition to individualized consideration. I part company with Justice Thomas, however, in believing that this critique does not require us to jettison race-conscious decision making in the educational context. But I do believe that the way in which that decision making is conducted can contribute to affirmative action's demeaning of the very groups it purports to benefit.
21. Cf. Kevin R. Johnson, Comparative Racialization: Culture and National Origin in the Latina/o Communities, 78 DENV. U. L. REV. 633 (2001) (analyzing how the popularity of Latin music and the Elian Gonzalez case highlight the ways in which Latino groups become racialized and stereotyped).
22. Cf. ROBERTO SURO, CHANGING CHANNELS AND CRISSCROSSING CULTURE: A SURVEY OF LATINOS ON THE NEWS MEDIA 2 (2006), available at http://pewhispanic.org/files/reports/27.pdf (reporting that representations of Latinos in Spanish-language media are generally more positive than in the mainstream, English-language press).
23. Defining "Latino" to include a wide array of experiences is a delicate enterprise. While I believe Latinos as a group have an interest in defining themselves as more than victims of race discrimination, I also do not want to discount the experience of discrimination or elide the ways in which "Latino" has been socially constructed as a race, or express overinvestment in the fact that there is such a thing as a "white" Latino, or an advantaged Latino.
24. For scholarly commentary on the subject, see, Berta Esperanza Hernández Truyol, Building Bridges - Latinos and Latinos at the Crossroads: Realities, Rhetoric, and Replacement, 25 COLUM. HUM. RTS. L. REV. 369 (1994) (highlighting the varied demographics and histories of Latino subgroups); Kevin R. Johnson, Immigration and Latino Identity, 19 CHICANO-LATINO L. REV. 197 (1998) (exploring tensions between native-born and immigrant Latino groups); Ian F. Haney López, The Social Construction of Race: Some Observations on Illusion, Fabrication, and Choice, 29 HARV. C.R.-C.L. L. REV. 1 (1994) (illustrating the fluidity of Latino identity and the challenges with respect to Latino self-identification in an American context focused on the black-white paradigm). Cf. Ian F. Haney López, Race, Ethnicity, Erasure: The Salience of Race to LatCrit Theory, 10 LA RAZA L.J. 57 (1998) (arguing that Latinos should be considered a race, because race is socially constructed and the Latino experience in the United States has been characterized by racialization and discrimination); Juan F. Perea, Buscando America: Why Integration and Equal Protection Fail to Protect Latinos, 117 HARV. L. REV. 1420, 1425 (2004) (noting that the Spanish language is at the heart of the Latino experience in the United States).
25. I have elaborated on why I believe the Latino category to be a complex but meaningful one, despite these definitional difficulties, in other contexts. See, e.g., Cristina M. Rodriguez, From Litigation, Legislation, 117 YALE L.J. 101, 136-138 (2008) (discussing "Latino" as a meaningful associational group in the voting rights context); Cristina M. Rodríguez, Latinos and Immigrants, 11 HARV. LATINO L. REV. 501, 509-13 (2008).
26. Cf. Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN. L. REV. 855, 888-90 (1995) (arguing that there is little inter-group definition among Latinos and emphasizing that the decision about which Latino sub-groups to include in an affirmative action policy should depend on a given law school's rationale for its affirmative action program).
27. In her work on affirmative action, Lani Guinier expresses a preference for Justice Ginsburg's dissent in Gratz v. Bollinger, 539 U.S. 244, 298 (2003) (Ginsburg, J., dissenting), which asserts that a transparent numbers-based system helps avoid dangers, such as the stereotyping of blacks in the name of affirmative action, that are endemic to an individualized consideration model. She also emphasizes that the individualized consideration model gives admissions officers the power to act as gatekeepers for a small elite, making judgments about minority applicants that reflect conscious and subconscious biases. Lani Guinier, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 182-92(2003).
28. Cf. RICHARD THOMPSON FORD, THE RACE CARD 251-52 (2008) ("Admissions officers noticed a minor literary genre of 'cooking smells' essays, in which the applicant waxed nostalgic about the evocative aroma of a distant relative's ethnic cuisine. Students of every color and hue described their diverse backgrounds and experiences.").
29. Kenji Yoshino, Covering, 111 YALE L.J. 769, 910 (2002). Yoshino observes that women are more likely to be expected to reverse cover than non-whites and gays, because stereotypically feminine traits are "more likely to be valued as appropriate to at least some spheres of life." Id.
30. Cf. RICHARD THOMPSON FORD, RACIAL CULTURE: A CRITIQUE (2005) (arguing that civil rights protections should be focused on race discrimination, not discrimination on the basis of possession of cultural traits); CORNEL WEST, RACE MATTERS 21-32 (2001) (discussing the problems with assessing race through an authenticity lens).
31. See Gratz v. Bollinger, 539 U.S. 244, 298-305 (2003) (Ginsburg, J., dissenting).
32. Id. at 305.
33. Cf. Ian Ayres & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517, 559 (2007) (concluding that the law school admissions scheme gave more weight to race than did the undergraduate admissions program and emphasizing that in upholding the law school plan despite evidence that it differentiated among applicants more than the undergraduate plan, the Court was expressing something of an aesthetic preference against overt quantification).
34. The Court in Grutter may well have approved of individualized consideration precisely because of its black box quality-because it enables the state to conceal its use of race-either for appearances sake or in an attempt to tamp down the majority's resentment of affirmative action. But the very existence of an affirmative action policy, regardless of its execution, is likely sufficient to generate the sort of majority opposition that leads to litigation and efforts to stop affirmative action by referendum. Indeed, even in the wake of the Grutter/Gratz compromise, voters in Michigan approved the Michigan Civil Rights Initiative, which essentially banned affirmative action, despite Grutter having left the state with the authority to do no more than engage in individualized consideration. In other words, the costs of individualized consideration described in Part I are unlikely to be offset by the supposed benefit of obfuscation.
35. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2797 (2007) (Kennedy, J., concurring).
36. Recognizing this point does not preclude also acknowledging that the specific point value given to race might itself have demeaning effects if the point value is considerable, or appears excessive. Those designing mechanical points system should be attentive to these sorts of concerns, which the Court in Gratz seemed to be flagging by criticizing the twenty points assigned on the basis of race as inflexible, out of proportion to point values assigned for other attributes, and decisive in most cases. See Gratz, 539 U.S. at 272.1 discuss this issue infra notes 42-43 and accompanying text.
37. See Morales v. Daley, 116 F. Supp. 2d 801 (S.D. Tex. 2000).
38. Id. at 810-11.
39. Id. at 814.
40. Id. at 815.
41. Id. at 814.
42. See Gratz v. Bollinger, 529 U.S. 244, 293-97 (2003) (Ginsburg, J., dissenting) ("The college simply does by a numbered scale what the law school accomplishes in its 'holistic review,' ... the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis of all the various merits their applications may disclose.") (citations omitted).
43. See Grate, 539 U.S. at 279 (O'Connor, J., concurring).
44. The most obvious instance in which Latino parsing continues to occur is in the Census, which permits individuals and families to define their races and ethnicities with ever-greater specificity. My claims in this Article about broad definition of racial groupings are not meant to suggest that this trend is misguided. To the contrary, for information-gathering purposes, as well as out of respect for those who participate in the Census, it is important to develop as clear a sense as possible of how our demography breaks down and how large, socially salient groups break down internally along lines of race, national origin, income, language ability, etc.
45. 78 F.3d 932, 934 (5th Cir. 1996).
46. See supra note 34 for further discussion of this point.
47. See Guinier, supra note 27, at 135 (discussing how the task of constituting a class is a political act, because it implicates the institution's sense of itself as a community, as well as the larger society's sense of itself as a democracy, in the context of exploring how colleges have evolved from being elite, exclusionary institutions to being engines of economic and social mobility).
48. Similar claims can be made for our understanding of what the category "Asian" means, or "African American" for that matter. In the former case, the issue does not arise in the affirmative action context, because most Asian groups do not require race-based preferences in order to gain admissions to elite universities in large numbers, though it may well be that under a diversity calculus like the University of Michigan Law School's, Asian applicants are benefiting. However, the category "Asian" paints with an exceptionally broad brush, obscuring the fact that certain Asian groups, such as Filipinos and Cambodians, may not be succeeding at the same rate as other students of Asian descent.
49. See, e.g., Goodwin Liu, Seattle and Louisville, 95 CAL. L. REV. 277 (2007) (arguing that narrow tailoring is context-dependent and that individualized consideration is inappropriate in the primary school assignment context); James E. Ryan, Voluntary Integration: Asking the Right Questions, 67 OHIO ST. L.J. 327 (2006) (arguing that it would be inappropriate for the Court to apply an individualized consideration requirement in the school assignment cases because the goal in the primary school context is diversity in itself, without the overlay of merit-based competition).
50. I discuss the significance of group power as it relates to the definition of Latino in the voting rights context elsewhere. See Rodriguez, From Litigation, Legislation, supra note 25.
51. For a more extended discussion of this point with a view to the evolution of the Court's standards for determining whether section five of the Voting Rights Act has been violated, see id.
52. Grutter v. Bollinger, 539 U.S. 306, 316 (2003) (emphasis added).
53. Overinclusiveness is a problem generally with mechanical rules; applicants can claim membership in a group without having to prove their bona fides. But leaving aside the fact that essays, too, can be manipulated to present a dishonest but appealing minority profile, I ultimately prefer to tolerate overinclusion in exchange for restraining the state from determining who constitutes a deserving minority qua minority,
54. Id. at 323.
55. 488 U.S. 469, 485-86 (1989) (striking down set-aside program for minority contractors adopted by city of Richmond, Virginia, on the ground that it did not address historical discrimination against the beneficiaries of the program by the city).
56. 515 U.S. 200 (1995) (striking down scheme administered by Department of Transportation to give preference to minorities when awarding contracting and subcontracting jobs).
57. See Grutter, 539 U.S. at 328. But cf. Adarand, 515 U.S. at 200 (requiring showing that the state institution utilizing affirmative action must itself have discriminated against preferred group in order for remedying past discrimination to qualify as a compelling state interest that justifies a narrowly tailored affirmative action plan).
58. See, e.g., Reva B. Siegel, Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown, 117 HARV. L. REV. 1470, 1538-44 (2004) (arguing that Grutter expands the concept of diversity by embracing antisubordination values despite deploying anticlassification discourse, such that the Court appears to be allowing racial allocation of opportunities when the state is looking to inhibit or break down caste relations, so long as the state acts in a way that will not unduly exacerbate race consciousness or resentment of majority group members).
59. A similar point can be made in the voting rights context, in which the race-consciousness of voting rights litigation brings groups, such as Cuban Americans, who have never been subject to the kind of systematic intimidation, violence, and exclusion from voting experienced by southern blacks and Mexican Americans in Texas and other parts of the Southwest, under the protection of the Voting Rights Act. For an articulation of how the voting rights claims of some advocates have become unmoored from these foundations, see Samuel Issacharoff, Groups and the Right to Vote, 44 EMORY L.J. 869, 872 (1995) ("[T]he current proliferation of group claims in the voting rights arena stems from a profound disorientation from the crucial factors that justify... the 'affirmative' reliance on racial or ethnic classifications. The rationale of Carolene Products... suggests that a claim for judicial reform of the political process requires a showing both of group disadvantage and of the group's historic inability to redress that disadvantage .... Whatever the merits of the 'rainbow coalition' as a matter of political program, not all members of the coalition share these features; not all are entitled to the special solicitude for which they clamor.") (emphasis in original). For my own assessment of these matters, see Rodríguez, From Litigation, Legislation, supra note 25.
60. For those who eschew race consciousness altogether, the inability to pinpoint past discrimination against a particular group by a particular institution should mean an end to race consciousness. But this conception of race in American life ignores that racial and ethnic differences will continue to be salient, and that racial groupings simply will not disappear, because human societies are constituted in part by subgroups. The nature and perhaps salience of race will change over time and across generations, particularly when it comes to the racial or ethnic identity of the descendants of immigrants, but the notion that racial and related differences will disappear seems blinkered.
61. I have developed this point more fully elsewhere. See Cristina M. Rodriguez, Language Diversity in the Workplace, 100 NW. U. L. REV. 1689, 1747-50 (2006).
62. See Pew Hispanic Center, Fact Sheet, From 200 Million to 300 Million: The Numbers Behind Population Growth, available at http://www.pewhispanic.org/files/factsheets/25/pdf.
63. As I note above, I explore the reasons why in more detail elsewhere. See supra note 25 and accompanying text.
64. Cf. ROGER WALDINGER, BETWEEN HERE AND THERE: HOW ATTACHED ARE LATINO IMMIGRANTS TO THEIR NATIVE COUNTRY? i (2007), available at http://pewhispanic.org/files/reports/80.pdf (noting that attachment to home country is less for Latinos who have spent more time in the United States or who arrived as children, and that most Latinos in the United States see their future as inside the United States, rather than their countries of origin). After the third generation, when connection to the culture of origin and the Spanish language is likely to be non-existent, or attenuated at best, Latino identity arguably becomes less complex and more traditionally American, in that non-white Latinos may persist in being defined as such, whereas white Latinos may have assimilated entirely into a white American majority. For a discussion of the linguistic assimilation of Latinos across three generations that results in the loss of Spanish-speaking ability by the third generation, see RICHARD ALBA & VICTOR NEE, REMAKING THE AMERICAN MAINSTREAM: ASSIMILATION AND CONTEMPORARY IMMIGRATION 219 (2003).