Cracking the egg: Which came first - Stigma or affirmative action?

California Law Review

Volumn 96, Issue 5, 2008, Pages 1299-1352

  Onwuachi Willig, Angela ^a   Houh, Emily ^b   Campbell, Mary ^a  

^a UNIVERSITY OF IOWA   (United States)

^b UNIVERSITY OF CINCINNATI   (United States)

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EID: 56149098341     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (135)

1. Compare Ian Ayres & Richard Brooks, Response, Does Affirmative Action Reduce the Number of Black Lawyers?, 57 STAN. L. REV. 1807 (2005) (arguing that affirmative action does not create, but rather mitigates, racial disparities in the law school context), Dorothy A. Brown, The LSAT Sweepstakes, 2 J. GENDER RACE & JUST. 59 ( 1998) (critiquing the racially biased nature of the LSAT and its value as a predictor of law school performance), David L. Chambers et al., The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander's Study, 57 STAN. L. REV. 1855, 1898 (2005) (arguing that "without affirmative action, both the enrollment of African American law students... and the production of African American lawyers would significantly decline"), Sumi K. Cho, Multiple Consciousness and the Diversity Dilemma, 68 U. COLO. L. REV. 1035, 1061 (1997) (describing, in the affirmative action context, dominant conceptions of merit as embracing a "white baseline of experience" and dominant conceptions of societal discrimination as embracing a "Black baseline of experience" and advocating an "alternative racial formation analysis that would conceptually link the experiences of various groups of color through the critique of white supremacy"), Richard Delgado, Ten Arguments Against Affirmative Action - How Valid?, 50 ALA. L. REV. 135, 139 (1998) (arguing, in part, that stigma "predates and operates independently of affirmative action"), and Kevin R. Johnson & Angela Onwuachi-Willig, Cry Me A River: The Limits of "A Systematic Analysis of Affirmative Action in American Law Schools, " 7 AFR.-AM. L. & POL'Y REP. 1 (2005) (arguing that existing structural and systemic forms of race and gender inequality within institutions of higher learning, rather than affirmative action, are the most likely causes of racial disparities in law school grades and bar passage), with Kingsley R. Browne, Affirmative Action: Policy-Making by Deception, 22 OHIO N.U. L. REV. 1291 (1996) (critiquing implementation of affirmative action programs in various contexts as confused and inconsistent, and defending notions of objective standards and merit), Terry Eastland, The Case Against Affirmative Action, 34 WM. & MARY L. REV. 33 (1992) (arguing that affirmative action policies both penalize innocent white people who have not themselves perpetrated discrimination and stigmatize their purported beneficiaries, and advocating a return to "race neutral" principles), Lino Graglia, Gratz and Grutter: Race Preferences To Increase Racial Representation Held "Patently Unconstitutional" Unless Done Subtly in the Name of Pursuing "Diversity", 78 TUL. L. REV. 2037 (2004) (arguing that affirmative action admissions policies such as those at issue in the Gratz and Grutter cases are designed only to increase black enrollment, not to increase diversity), Gail Heriot, Thoughts on Grutter v. Bollinger and Gratz v. Bollinger as Law and as Practical Politics, 36 LOY. U. CHI. L.J. 137, 138 (2004) (critiquing the Supreme Court's decisions in Gratz and Grutter as "tragically misguided" and politically impractical, and arguing that race neutral alternatives should have been more closely considered and mandated by the Court), Richard H. Sander, A Systemic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004) (arguing that affirmative action admissions policies at American law schools create an academic mismatch effect that significantly reduces the number of black lawyers), and Antonin Scalia, The Disease As Cure: "In Order to Get Beyond Racism, We Must First Take Account of Race, " 1979 WASH. U. L. Q. 147 (critiquing the then-existing Supreme Court affirmative action jurisprudence as incoherent and misguided).
2. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
3. The Arizona Civil Rights Initiative currently is campaigning for a November 2008 ballot initiative. Its operative language states: "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." Arizona Civil Rights Initiative, ADVERSITY.NET NEWS, http://www.adversity.net/ supertuesday2008/arizona.htm.
4. The Colorado Civil Rights Initiative is also moving forward with plans for an anti-affirmative action ballot measure for November 2008. The language of the Colorado initiative mirrors that of Arizona's, see supra note 3. See Colorado Civil Rights Initiative Coming to 2008 Ballot, Apr. 23, 2007, http://coloradocri.org/ (last visited July 28, 2008). Similar initiatives passed previously in the states of California, Washington, and Michigan. See id.
5. Throughout this Article, we capitalize the words "Black" and "White" when we use them as nouns to describe a racialized group; however, we do not capitalize these terms when we use them as adjectives. Also, we prefer to use the term "Blacks" to the term "African Americans" because the term "Blacks" is more inclusive. See Why "Black" and Not "African-American, " 3 J. HIGHER EDUC. 18, 18-19 (1994) (describing why the term "black" is a more inclusive term than "African-American"). Additionally, we find that "[i]t is more convenient to invoke the terminological differentiation between black and white than say, between African-American and Northern European-American, which would be necessary to maintain semantic symmetry between the two typologies." Alex M. Johnson, Jr., Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 U. ILL. L. REV. 1043, 1073 (1992).
6. See, e.g., Lino A. Graglia, Special Admission of the "Culturally Deprived" to Law School, 119 U. PA. L. REV. 351, 352 (1970) ("Discrimination in favor of some racial or ethnic groups necessarily is or appears to be discrimination against others.... Further, discrimination in favor of particular racial or ethnic groups is largely or entirely unnecessary to achieve true equality in educational opportunity and is unjust to those who have been denied such opportunity on other grounds."); Scalia, supra note 1, at 153-54 ("I am not willing to prefer the son of a prosperous and well-educated black doctor or lawyer - solely because of his race - to the son of a recent refugee of Eastern Europe who is working as a manual laborer to get his family ahead."). But see Goodwin Liu, The Causation Fallacy: Bakke and the Basic Arithmetic of Selective Admissions, 100 MICH. L. REV. 1045, 1049 (2002) ("In any admissions process where applicants greatly outnumber admittees, and where white applicants greatly outnumber minority applicants, substantial preferences for minority applicants will not significantly diminish the odds of admission facing white applicants."); Thomas Ross, Innocence and Affirmative Action, 43 VAND. L. REV. 297 (1990) (unpacking the loaded concept of "innocence" in the affirmative action debate).
7. White women are rarely included as a topic in these debates about affirmative action, even though white women are the largest beneficiaries of affirmative action. See Gloria J. Ladson-Billings, Can We At Least Have Plessy? The Struggle for Quality Education, 85 N.C. L. REV. 1279, 1282 (2007). But see Sacha E. de Lange, Toward Gender Equality: Affirmative Action, Comparable Worth, and the Women's Movement, 31 N.Y.U. REV. L. & SOC. CHANGE 315, 320-38 (2007) (challenging, from a feminist perspective, the well-accepted assumption that white women are the biggest benefactors of affirmative action).
8. See infra notes 10 & 17 and accompanying text (providing definitions for internal and external stigma).
9. Eastland, supra note 1, at 41-42.
10. Ashley M. Hibbett, The Enigma of the Stigma: A Case Study on the Validity of the Stigma Arguments Made in Opposition to Affirmative Action Programs in Higher Education, 21 HARV. BLACKL ETTER L.J. 75, 77 (2005).
11. Eastland, supra note 1, at 42 (quoting Sonia L. Nazario, Many Minorities Feel Torn by Experience of Affirmative Action, WALL ST. J., June 27, 1989, at A1).
12. See Aya Gruber, Navigating Diverse Identities: Building Coalitions Through Redistribution of Academic Capital - An Exercise in Praxis, 35 SETON HALL L. REV. 1201, 1229 (2005) (discussing how conservatives minorities can use their "voice of color" to perpetuate subordination); Alex M. Johnson, Jr., Racial Critiques of Legal Academia: A Reply in Favor of Context, 43 STAN. L. REV. 137, 164 (1990) (arguing that the "voice of the new conservatives of color is so powerful, so damning to some, precisely because it emanates from people of color"); Mari Matsuda, Looking to the Bottom: Critical Legal Studies and Reparations, 22 HARV. C.R.-C.L. L. REV. 323, 324 (1987) (suggesting "that those who have experienced discrimination speak with a special voice to which we should listen").
13. Eastland cited to Steele in making his own arguments concerning the strength of the stigma argument against race-based affirmative action. Eastland, supra note 1, at 41-42. Likewise, Justice Clarence Thomas's external stigma arguments from Grutier, see infra note 15, were heavily cited by newspapers, scholars, and pundits, with many conceding the force of such arguments in their analyses.
14. SHELBY STEELE, THE CONTENT OF OUR CHARACTER 134 (1st ed. 1990).
15. See Tomiko Brown-Nagin, The Transformative Racial Politics of Justice Thomas?: The Grutter v. Bollinger Opinion, 7 U. PA. J. CONST. L. 787, 806 (2005) (declaring that Justice "Thomas's approach [in Grutter] open[ed] the door to an argument that these stigmatizing criteria should be understood as a form of discrimination that is cognizable and remediable at law"); Mary Kate Kearney, Justice Thomas in Grutter v. Bollinger: Can Passion Play a Role in a Jurist's Reasoning?, 78 ST. JOHN'S L. REV. 15, 35 (2004) (asserting that Justice Thomas "infused his reasoning [in Grutter] with a power that is difficult to ignore"); Joshua M. Levine, Comment, Stigma's Opening: Grutter's Diversity Interest(s) and the New Calculus for Affirmative Action in Higher Education, 94 CALIF. L. REV. 457, 480 (2005) ("The Thomas opinion presents a bracing case against affirmative action, but more importantly, his opinion sets forth a legal argument about a potential cost to racial minorities from affirmative action: stigmatic harm."); see also Gruber, supra note 12, at 1229 (noting that Justice Thomas's "manipulation of language seeks to show the reader his special insights on affirmative action because of his color"); 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, 987-96 (2005) (describing how Justice Thomas's stance on affirmative action is rooted in black conservative thought, which is distinct from white conservative thought).
16. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) (Thomas, J., concurring) (emphasis added).
17. Hibbett, supra note 10, at 77.
18. See, e.g., Kearney, supra note 15, at 25 (describing Justice Thomas's stigma argument as "a more personal critique of the majority's analysis"); Maureen Dowd, Editorial, Could Thomas Be Right?, N.Y. TIMES, June 25, 2003, at A25 ("[Justice Thomas] knew that he could not make a powerful legal argument against racial preferences, given the fact that he got into Yale Law School and got picked for the Supreme Court thanks to his race. So he made a powerful psychological argument.... [His dissent in Grutter] is a clinical study of a man who has been driven barking mad by the beneficial treatment he has received. It's poignant, really. It makes him crazy that people think that he is where he is because of his race, but he is where he is because of his race."); Michael C. Dorf, The Supreme Court's Divided Rulings in the University of Michigan Affirmative Action Cases: What Does it All Mean?, FINDL AW'S WRIT, June 25, 2003, http://writ.news.findlaw.com/dorf/ 20030625.html ("[T]he real heart of Justice Thomas's dissent in Grutter is more personal. He harbors an almost visceral hatred for what he terms 'know-it-all elites..... How did this graduate of Yale Law School come to despise the sort of institution that opened so many doors for him? The answer, it seems, is that he believes affirmative action stigmatizes not only its beneficiaries, but all people of color...").
19. Grutter v. Bollinger, 539 U.S. 306, 373 (2003) (Thomas, J., dissenting).
20. STEELE, CONTENT OF OUR CHARACTER, supra note 14, at 120.
21. Richard H. Sander, The Racial Paradox of the Corporate Law, 84 N.C. L. REV. 1755, 1812 (2006) (arguing that external stigma contributes to the high attrition rate of black associates at law firms in that partners "tend to [give] less responsibility and fewer 'proving' assignments" to black associates because they have low expectations of black associates). Shelby Steele made a similar comment concerning the external effect of affirmative action on black success in the workplace when he contended that the glass ceiling for Blacks may be the result of Blacks' reputation for advancing, not through their own merits, but because of their race. See Shelby Steele, A Negative Vote on Affirmative Action, in DEBATING AFFIRMATIVE ACTION: RACE, GENDER, ETHNICITY, AND THE POLITICS OF INCLUSION 37, 41 (Nicolaus Mills ed., 1994).
22. Since 2006, the University of Michigan Law School has not employed a race-based affirmative action program. In 2006, residents of the state of Michigan voted in favor of an initiative that banned the use of race-based affirmative action in public universities. See Michigan Votes Down Affirmative Action, INSIDEHIGHERED.COM, Nov. 8, 2006, http://insidehighered.com/news/2006/11/08/michigan.
23. See infra Part III.
24. WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS (1998); Richard O. Lempert, David L. Chambers, & Terry K. Adams, Michigan's Minority Graduates in Practice: The River Runs Through Law School, 25 LAW & SOC. INQUIRY 395 (2000); see also Grutter, 539 U.S. at 332 (O'Connor, J.) (highlighting that a significant percentage of the country's leaders come from "highly selective... schools"); Richard Delgado, Rodrigo's Riposte: The Mismatch Theory of Law School Admissions, 57 SYRACUSE L. REV. 637, 651 (2007) (arguing that Blacks at top law schools are more likely to succeed in those schools than in lower-tiered schools because, at the top law schools, the professors assume that all of their students will have distinguished careers).
25. Eva Jefferson Patterson, Affirmative Action and the California Civil Wrongs Initiative, 27 GOLDEN GATE U. L. REV. 327, 334 (1997); see also Christopher A. Bracey, Getting Back to Basics: Some Thoughts on Dignity, Materialism, and a Culture of Racial Equality, 26 CHICANO-LATINO L. REV. 15, 38 (2006) ("It is hard to imagine how providing the material preconditions to exercise freedom on an equal basis would prove stigmatizing.").
26. Eastland, supra note 1, at 41.
27. See infra Part I.B.2; see also Claude Steele, Stereotype Threat and African-American Student Achievement, in THERESA PERRY, CLAUDE STEELE, & ASA G. HILLIARD III, YOUNG, GIFTED, AND BLACK: PROMOTING HIGH ACHIEVEMENT AMONG AFRICAN-AMERICAN STUDENTS 109 (2003) [hereinafter Steele, Stereotype Threat]; Claude Steele, Expert Report, Reports Submitted on Behalf of the University of Michigan, 5 MICH. J. RACE & L. 439, 440, 444-46 (1999) [hereinafter Steele, Expert]. In his research on stereotype threat, Professor Steele discovered that black students comparable in ability to their white counterparts performed worse on examinations when they were told that their ability was being tested. When Professor Steele tested a different group of comparable black and white students but told them that the test was a problem-solving task rather than a test of ability, the performance of the black students matched that of their white counterparts. By changing the function of the test, Professor Steele "changed the meaning of the situation. It told Black participants that the racial stereotype about their ability was irrelevant to their performance on this particular task." Id. at 445.
28. For information on these organizations, see the official website of the American Civil Rights Institute at http://www.acri.org/, and the official website of the related American Civil Rights Coalition at http://www.acrcl.org/. See Natalie Moore, At it Again: Affirmative Action For Ward Connerly Returns, THE CRISIS, Winter 2008, at 9; Peter Schmidt, 4 States Named in Affirmative-Action Fight, CHRON. OF EDUC., May 4, 2007, at 34; Peter Schmidt, 5 More States May Curtail Affirmative Action, CHRON. OF EDUC., Oct. 19, 2007, at 1; Melody Drnach, Opponents of Equal Opportunity Determined to Protect Their Interests, NAT'L NOW TIMES, Jan. 1, 2008, at 10; Jan Erickson, Conservatives Push to End Affirmative Action, NAT'L NOW TIMES, Jan. 1, 2007, at 2; Louis Freedberg, The Man Behind Prop. 29, WASH. MONTHLY, Mar. 1998, at 20.
29. See Hibbett, supra note 10, at 78 (asserting that "many affirmative action opponents, in the interest of making their position appear benevolent, have a tendency to exaggerate the prevalence of internal stigma to suggest that the primary objection to affirmative action is that it harms its beneficiaries more than anyone else."); cf. Johnson, supra note 12, at 140 (noting how minorities are "able to espouse [conservative] views that, because [they are of color], are not viewed as racist," but that "[i]f similar arguments were made by a majority (white) scholar, charges of racism would be rife").
30. President Lyndon B. Johnson, Commencement Address at Howard University: "To Fulfill These Rights," 2 PUB. PAPERS 635, 636 (June 4, 1965).
31. Exec. Order No. 11246 § 202(1), 3 C.F.R. 339-48 (1964-65), reprinted in 42 U.S.C. 2000e (2000).
32. ERVING GOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY (1963).
33. Goffman's work on stigma has been far-reaching in the social sciences. Notably, however, its impact has been far more limited on the legal theorizing of stigma. See R.A. Lenhardt, Understanding the Mark: Race, Stigma, and Equality in Context, 79 N.Y.U. L. REV. 803, 815-16 n.46 (2004) (discussing, for example, how courts and constitutional scholars theorizing about stigma have not done so uniformly or with particular reference to Goffman's work on stigma).
34. See supra notes 7-21 and accompanying text.
35. See GOFFMAN, supra note 32, at 4.
36. Michael Omi and Howard Winant were among the first to theorize and name a social constructionist approach to race in RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960s TO THE 19805 (1986) [hereinafter OMI & WINANT, RACIAL FORMATION 1986] which has since been followed by a second edition - MICHAEL OMI & HOWARD WINANT, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 19905 (2d ed. 1994). Omi and Winant's theory of racial social construction rejects "biologistic notions of race." OMI & WINANT, RACIAL FORMATION 1986, supra, at 60. They define racial formation as "the process by which social, economic and political forces determine the content and importance of racial categories, and by which they are in turn shaped by racial meanings." Id. at 61. Further, Omi and Winant's theory of racial formation explicitly rejects conceptions of race that subsume race within other broader categories (such as ethnicity and/or class) and that do not treat race as a "central axis of social relations." Id. at 61-62.
37. "Normals" are defined as "those who do not depart negatively from the particular expectations at issue." See GOFFMAN supra note 32, at 5. Of "normals," Goffman further writes: The attitudes we normals have toward a person with a stigma, and the actions we take in regard to him, are well known, since these responses are what benevolent social action is designed to soften and ameliorate. By definition, of course, we believe the person with a stigma is not quite human. On this assumption we exercise varieties of discrimination, through which we effectively, if often unthinkingly, reduce his life chances. We construct a stigma-theory, an ideology to explain his inferiority and account for the danger he represents, sometimes rationalizing an animosity based on other differences, such as those of social class. Id.
38. See id. at 5.
39. See id. at 4.
40. See id. at 2.
41. See id.
42. In more contemporary social constructionist terms, we might refer to "normalization" as "assimilation." See OMI & WINANT, RACIAL FORMATION 1986, supra note 36, at 15-20 (discussing the rise of the assimilationist approach to race, which became dominant in the mid and late twentieth century). Assimilation - or "Anglo conformity" - was viewed as "the most logical, and 'natural,' response to the dilemma imposed by racism" and is sharply critiqued by Omi and Winant in RACIAL FORMATION. See id. at 17-18.
43. See GOFFMAN, supra note 32, at 110.
44. See id. at 3.
45. See id.
46. BOWEN & BOK, supra note 24, at xxvii-xxviii (1998).
47. Id. at xvii, xxvii-xxx.
48. See id. at 53-192.
49. See id. at 193-255.
50. In the Grutter opinion, for example, Justice O'Connor, writing for the majority, cited and relied on THE SHAPE OF THE RIVER to explain the educational benefits that flow from student body diversity, and held that such diversity was a compelling state interest. Grutter v. Bollinger, 539 U.S. 306, 330 (2003). Further, as leading scholars in the area, Professors Bowen and Bok each submitted expert reports on "The Compelling Need for Diversity in Higher Education," based in large part on their influential study, in both the Grutter and Gratz cases. See University of Michigan Admissions Lawsuits, http://www.vpcomrn.umich.edu/admissions/ research/#um (last visited July 28, 2008).
51. See supra notes 12-14 and accompanying text.
52. See BOWEN & BOK, supra note 24, at 261.
53. Id. at 261.
54. STEPHAN THERNSTROM & ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE: ONE NATION INDIVISIBLE 405-06, 408 (1997) (comparing dropout rates of black and white students at thirteen elite colleges and universities).
55. Richard H. Sander, supra note 1, at 473.
56. Richard H. Sander, supra note 1, at 473, 479. Sander's more specific claim is that the probability of a matriculating law student becoming a lawyer is determined in large part by the student's entering LSAT score and his or her undergraduate GPA, relative to others at his or her school. Sander uses a regression analysis, based on data collected through surveys at various law schools about their students' entering credentials and similar data collected by the LSAC, to argue that LSAT scores and UGPAs determine two things: law school grades and the likelihood of passing the bar. To the extent Sander argues that affirmative action programs create a mismatch between the LSAT scores and UGPAs of African American law students relative to white students at their respective institutions (which he refers to as a "cascade effect"), Sander claims that affirmative action results in increasing the likelihood for African American students that they will do poorly in law school and that they will fail the bar. Using the same data, Sander claims that in the absence of affirmative action (and, thus, of the cascade effect at various institutions), the class entering law school in 2001 would have produced 7.9% more new African American lawyers who entered the bar - even though it also would have resulted in decrease in the number of African Americans admitted to law school based on their entering credentials (LSATs and UGPAs). Sander thus concludes that affirmative action is the cause of racial disparities in law school and bar exam performance and, thus, the cause of a 7.9% reduction in black lawyers.
57. See BOWEN & BOK, supra note 24, at 258-59. Bowen and Bok wrote: [Within our database,] [w]e compared how black students with equivalent test scores performed at colleges where the average score for all students was much higher than their own scores and at colleges where their scores were more like the average score for the entire school (where the "fit" between the black student and the school was presumably better). The results are completely contrary to the claims made by the critics. The higher the average SAT score of the college in question, the higher the graduation rate of black students within each SAT interval (including the intervals for students with only very modest SAT scores).... We also found that black students who did drop out were not embittered or demoralized, as some critics of race-sensitive admissions have alleged. On the contrary, of the relatively small number of black students who dropped out of the most selective schools, a surprisingly large percentage were "very satisfied" with their college experience..." Id. at 259; see also Katherine Y. Barnes, Is Affirmative Action Responsible for the Achievement Gap Between Black and White Students?, 101 NW. U. L. REV. 1759, 1780 (2007); Transcript of Briefing at 23, U.S. Civil Rights Commission (June 16, 2006) (testimony of Richard Lempert) (indicating that "data suggests particularly for those attending the best schools a reverse mismatch effect").
58. See Ian Ayres & Richard Brooks, supra note 1, at 1853 (arguing that a closer analysis of racial disparities in law school achievement does not show, as Sander claims, that affirmative action dominantly or solely creates such disparities, but instead that affirmative action mitigates racial disparities and "even more affirmative action would have been likely to produce more black lawyers").
59. See David L. Chambers et al., supra note 1, at 1857, 1898.
60. See David B. Wilkins, A Systematic Response to Systemic Disadvantage: A Response to Sander, 57 STAN. L. REV. 1915, 1919 (2005) (contextualizing the need for affirmative action in the American history of racism, and arguing that Sander's proposal to eliminate affirmative action, based on flawed analysis of data, "runs the risk of making many of the problems he identifies worse"); see also Michele Landis Dauber, The Big Muddy, 57 STAN. L. REV. 1899, 1903, 1914 (2005) (challenging, in particular, Sander's claims about black lawyers and the labor market and arguing that the poor vetting of Sander's empirical analysis has created "unjustified doubt" in the minds of judges, lawyers, and the public at large, about the value of racial diversity); Johnson & Onwuachi-Willig, supra note 1, at 4-5 (offering alternative explanations for racial disparities in law school performance, such as racially hostile law school environments and the taking on of time-consuming and psychically stressful race-based leadership responsibilities). In testimony before the Commission on Civil Rights on June 16, 2006, Richard Lempert, the Eric Stein Distinguished University Professor of Law and Sociology at the University of Michigan and Division Director for the Social and Economic Scientists at the National Science Foundation, indicated that he knew of no other empiricists "who have supported Rick Sander's position in print or in [a] draft [he] kn[e]w of." Transcript of Briefing at 21, U.S. Civil Rights Commission (June 16, 2006) (testimony of Richard Lempert).
61. See, e.g., THE BLACK-WHITE TEST SCORE GAP (Christopher Jencks & Meredith Phillips eds., 1998) (collection of essays analyzing the myriad of causes of racial testing disparities, such as test biases, school culture, and stereotype threat, and critiquing the over-reliance on test scores as measures of scholastic aptitude).
62. See, e.g., Michael K. Brown et al., The Bankruptcy of Virtuous Markets: Racial Inequality, Poverty, and "Individual Failure", in WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY 66, 68 (2003) (analyzing African American prosperity and poverty by taking into account "the changing patterns of racial labor market competition since the 1940s, the impact of government policies on racial stratification, and the cumulative advantages resulting from white control of the labor and housing markets."); Michael K. Brown et al., Keeping Blacks in Their Place: Race, Education, and Testing, in WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY 104 (2003) (deconstructing conservative arguments about the racial education gap and offering a more nuanced and intersectional explanation for the gap).
63. See, e.g., Johnson & Onwuachi-Willig, supra note 1, at 4-5.
64. Id. at 5.
65. Claude M. Steele & Joshua Aronson, Stereotype Threat and the Intellectual Test Performance of African Americans, 69 J. OF PERSONALITY & SOC. PSYCHOL. 797 (1995).
66. Id. passim; see also Karolyn Tyson, William Darrity, Jr., & Domini R. Castellino, It's Not "a Black Thing": Understanding the Burden of Acting White and Other Dilemmas of High Achievement, 70 AM. SOC. REV. 582 (2005) (discussing the way school structures create stigmas experienced by African American students).
67. Glenn C. Loury, Foreword to WILLIAM G. BOWEN AND DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS xxii-xxiii (paperback ed. 2000).
68. Id.
69. See, e.g., Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978) (arguing that color-blind, perpetrator-focused antidiscrimination law fails to address conditions and causes of material and ideological racial inequality); Neil Gotanda, A Critique of "Our Constitution is Colorblind," 44 STAN. L. REY. 1 (1991) (asserting that color-blind constitutionalism's approach to race is oversimplified and distorted and thus can do little to meaningfully address American racism).
70. See, e.g., MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY 1-2 (2003) (contending that implementation of color-blind social policies have resulted in "durable racial inequality"); CHARLES R. LAWRENCE III & MARI J. MATSUDA, WE WON'T GO BACK: MAKING THE CASE FOR AFFIRMATIVE ACTION 67-87 (1997) (terming the anti-affirmative action, color-blind assumption of existing racial equality "the Big Lie"); PATRICIA J. WILLIAMS, RACE TALK: SEEING A COLOR-BLIND FUTURE: THE PARADOX OF RACE (1st Am. ed., 1998) (noting that racism has evolved in part because of the pervasiveness of color-blind jurisprudence and rhetoric); Kimberlé Crenshaw, Playing Race Cards: Constructing a Proactive Defense of Affirmative Action, 16 NAT'L BLACK L.J. 196, 198-202 (1998-2000) (revealing the hypocrisy of anti-affirmative action rhetoric on color-blindness, equality, and black "under-achievement"); Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985 (2007) (tracing the discourse of color-blindness developed in the mid-nineteenth century as a reactionary and neoconservative response to civil rights gains that now dominates liberal antidiscrimination jurisprudence); Reva B. Siegel, Discrimination in the Eyes of the Law: How "Color Blindness" Discourse Disrupts and Rationalizes Social Stratification, 88 CALIF. L. REV. 77, 78 (2000) (describing color-blind discourse as a "semantic code" that operates in many ways to "rationalize social stratification").
71. See BROWN ET AL., supra note 70, at 66-103 (discussing causes of growing family income, poverty, and unemployment gaps as between Whites and Blacks, particularly given the rise of the black middle class); id. at 104-31 (discussing causes for the existence of the black-white testing gap); id. at 132-60 (discussing causes for growing incarceration rates of black males).
72. See Loury, supra note 67, at xxvi.
73. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007).
74. Linda Hamilton Krieger, Civil Rights Perestroïka: Intergroup Relations After Affirmative Action, 86 CALIF. L. REV. 1251 (1998).
75. Id. at 1276.
76. Id.
77. Id. at 1333.
78. Walter R. Allen, Ph.D. & Daniel Solorzano, Ph.D., Affirmative Action, Educational Equality and Campus Racial Climate: A Case Study of the University of Michigan Law School, 12 BERKELEY LA RAZA L.J. 237 (2001).
79. Id. With respect to research methodology, Allen and Solórzano gathered and interviewed focus groups comprised of African American, Latino, Native American, Asian Pacific American, and white undergraduate students who were attending the subject schools at the time. Interviews with the focus groups covered several areas, including: the types of racial discrimination experienced by students; students' responses to such discrimination; the impact of racial incidents on students, including on their academic performance; the advantages of having a critical mass of minority students on campus; whether racial climate had improved or worsened over the years; and whether the students would recommend their respective university to other minority students. Id. at 243.
80. Id. See also Supplemental Expert Report of Stephen W. Raudenbush, Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) (811 No. 97-75231), available at http://www.vpcomm.umich.edu/admissions/research/swrjul13.pdf (concluding, in this study of the likely racial composition of students in various social contexts on campus under affirmative action and non-affirmative action admission policies, that a non-affirmative action admissions policy likely would result in the absence of a critical mass of minority students).
81. See supra notes 32-45 and accompanying text.
82. See Hibbett, supra note 10.
83. Id. at 91.
84. Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 54, 73 (David Kairys 3d ed., 1998).
85. See Hibbett, supra note 10, at 96; see also Angela Onwuachi-Willig, The Admission of Legacy Blacks, 60 VAND. L. REV. 1141, 1227-28 (2007) (contending that elite colleges and universities should take more conscious efforts to recruit Blacks who descend from slaves in the United States); "Roots" and Race, HARV. MAG., Sept.-Oct. 2004, at 69, available at http://harvardmagazine.com/on-line/090443.html (quoting Harvard Professor Mary Waters as saying, "'If it's only skin color, that's a very narrow definition of diversity. I would hate to see Harvard not reaching out to those African Americans who have been in the United States for generations. Are we not looking as hard as we should in Mississippi or Alabama for kids who would do well if they were recruited?'").
86. See Hibbett, supra note 10, at 97 (emphasis added).
87. 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, 134-35 (2005) (describing "the need for a 're-parameterization' of merit standards by revealing the weaknesses in factors that have been traditionally used for admission"); see also ANDREA GUERRERO, SILENCE AT BOALT HALL: THE DISMANTLING OF AFFIRMATIVE ACTION (2002) (chronicling stories of Boalt Hall students, faculty, and staff in immediate wake of the passage of Proposition 209).
88. See Lenhardt, supra note 33, at 816-36.
89. See id. at 836-48. Group harms, according to Lenhardt, are those that are "emblematic or representative of the experience of a large number of a racial group's members." Id. at 836. Racial disparities, for example, in education, health care, and the criminal justice system, exemplify group harms. Id. at 837. Microaggressions - which might take the form of a verbal racial insult or simply being followed around as a person of color by a store employee while shopping - are more individualized, interactive, and often unconscious forms of conduct that contribute to group harm. Id. at 838. Individual stigmatic harm, discussed in much depth in Understanding the Mark, correlates roughly to the notion of internal stigma as already discussed in this paper. Race-based citizenship harm is related to individual stigmatic harm, and, more specifically, to harms that "have a negati ve
90. See id. at 809.
91. See id. at 877-78.
92. See id. at 885-87.
93. See id. at 887-990.
94. See Hibbett, supra note 10, at 91; see also notes 82-83 and accompanying text. In 2003, for example, Ward Connerly introduced Proposition 54, yet another ballot initiative in the state of California known as the "Racial Privacy Initiative." Through a constitutional amendment, Proposition 54 would have prohibited the state from collecting data based on race, ethnicity, color, or national origin. See Smart Voter, Proposition 54, http://smartvoter.org/2003/10/07/ca/state/prop/54/ (last visited May 26, 2008). Such a ban would have made it impossible for the state to track possible racial disparities in health care and disease patterns, educational resources and academic achievement, hate crimes, and employment rates. Proposition 54 was defeated by a margin of 63.9% (voting no) to 36.1% (voting yes). Id. See also Lee Cokorinos, The Big Money Behind Ward Connerly, http://www.equaljusticesociety.org/Cokorinos_Connerly_BigMoney.pdf (disclosing the identities of seven of Proposition 54's top funders and their various ties to traditional anti-civil rights causes).
95. Christopher A. Bracey, The Cul de Sac of Race Preference Discourse, 79 S. CAL. L. REV. 1231 (2006).
96. See id. at 1241-93.
97. See id. at 1237, 1241.
98. See id. at 1279.
99. See id.
100. See id. at 1280.
101. See, e.g., ALLAN BLOOM, THE CLOSING OF THE AMERICAN MIND: HOW HIGHER EDUCATION HAS FAILED DEMOCRACY AND IMPOVERISHED THE SOULS OF TODAY'S STUDENTS (1987) (criticizing same-race peer association on college campuses as racial balkanization); DINESH D'SOUZA, ILLIBERAL EDUCATION: THE POLITICS OF RACE AND SEX ON CAMPUS (1991) (same).
102. See, e.g., LANI GUINIER, ET AL., BECOMING GENTLEMEN: WOMEN, LAW SCHOOL, AND INSTITUTIONAL CHANGE (1997) (arguing that traditional standards of merit, structural barriers, and institutional barriers perpetuate race, gender, and class privilege, which in turn perpetuate stigma related to those identity categories); LAWRENCE & MATSUDA, supra note 70 (same); Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 COLUM. L. REV. 928 (2001) (same).
103. See Sumi Cho, Redeeming Whiteness in the Shadow of Internment: Earl Warren, Brown, and a Theory of Racial Redemption, 40 B.C. L. REV. 73, 75 (1998) (defining "racial redemption" as a "psycho-social and ideological process through which whiteness maintains its fullest reputational value"). The project of racial redemption has three components: "I) repudiating white supremacy's 'old' regime; 2) burying historical memories of racial subordination; and 3) transforming white supremacy into a viable contemporary regime." Id. We suggest that liberal opposition to affirmative action does "transformational" work in a larger project of racial redemption.
104. For a copy of the survey, see infra Appendix.
105. For example, we asked students of color at both types of schools whether they felt stigmatized by affirmative action, and we asked all students at both types of schools to estimate how many law students of color were admitted because of affirmative action.
106. Stereotype threat, discussed in Part I.B.2 of this Article, is the fear that poor performance will confirm negative racial stereotypes, which has been shown to undermine the actual performance of black students on standardized tests and in school. Steele, Stereotype Threat, supra note 27, at 109 (reporting that "Blacks performed a full standard deviation lower than whites under the stereotype threat of the test being 'diagnostic' of their intellectual ability"); id. at 117 (describing the same effects of stereotype threat on white male students - who were not expected to have a sense of group inferiority - when they were given a difficult math ability test with a comment that Asian-American students generally performed better than white students on the test); see also Steele, Expert, supra note 27, at 447 (noting also that "Black students performing a cognitive task under stereotype had elevated blood pressure").
107. Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, in PROMISE AND DILEMMA: PERSPECTIVES ON RACIAL DIVERSITY AND HIGHER EDUCATION 92, 101 (Eugene Y. Lowe, Jr. ed. 1999) ("Ironically, their susceptibility to this threat derives not from internal doubts about their ability (e.g., their internalization of the stereotype) but from their identification with the domain and the resulting concern that they have about being stereotyped in it."). Id. at 94.
108. In fact, the great irony of stereotype threat is that it is most likely to affect the most high-achieving students, or those who, under normal circumstances, would be least likely to perform poorly and are most invested in doing well. See Steele, Expert, supra note 27, at 446 ("Across our research, stereotype threat most impaired students who were the most identified with achievement, those who were also the most skilled, motivated, and confident - the academic vanguard of the group more than the academic rearguard."). This finding is also consistent with that of Bowen and Bok, who found that most traditional-looking minority students in their study - those most likely to be admitted under a race-blind process - performed the furthest below their potential. See BOK & BOWEN, supra note 24, at 261; see also Hibbett, supra note 10, at 88 (arguing that any feelings of demoralization by minority students likely stem "from long-standing racism and deep-seated prejudices than race-based admissions policies"). As Professor Laura Padilla has highlighted, unlike Whites, racial minorities are rarely judged as individuals, but are instead judged as a group. Her article regarding women of color and affirmative action suggests that qualified and successful Blacks are still perceived as the exception, a fact of which many high-achieving minorities are well-aware. See Laura M. Padilla, Intersectionality and Positionality: Situating Women of Color in the Affirmative Action Dialogue, 66 FORDHAM L. REV. 843, 880 (1997) ("[A]ffirmative action has made no significant difference in the way whites look at blacks. Competent and successful blacks are still seen as exceptional. Before and since affirmative action, most white people see another white as competent until proven incompetent and a black person as incompetent until proved competent.") (quoting THE JOINT CTR. FOR POL. & ECON. STUD., THE INCLUSIVE UNIVERSITY: A NEW ENVIRONMENT FOR HIGHER EDUCATION 18 (1993)); see also STEELE, CONTENT OF OUR CHARACTER, supra note 14, at 133 ("The accusation black Americans have always lived with is that they are inferior - inferior simply because they are black. And this accusation has been too uniform, too ingrained in cultural imagery, too enforced by law, custom, and every form of power not to have left a mark.").
109. Anonymous E-mail to Professor Angela Onwuachi-Willig, (July 10, 2007, 12:54 CST) (on file with Professor Angela Onwuachi-Willig).
110. These statistics include all responses to the survey as of December 18, 2007, at which point we downloaded and analyzed the data. Response rates are approximate, because we had to estimate the size of one of the classes based on incomplete data. We had difficulty obtaining a precise number for the size of some classes because of transfers, dropouts, and other factors.
111. As one subject student noted, "I hope that when you look at the results of this survey, you consider the fact that students with strong opinions are much more likely to respond to it. I'm much too apathetic about most issues to take the time to fill out an online survey, affirmative action just happens to be an issue that gets me excited and angry. In fact, it's widespread apathy and misunderstandings on the part of the majority of white students that gets me so angry and would motivate me to answer this survey and also lead me to believe that this large group might not be adequately reflected in the data you collect."
112. Conclusions here are based on the 92 respondents who answered the questions asked only of people who believed their group was eligible for affirmative action. Average scores on these items can be found in Table 2. Throughout Table 2, plus signs indicate a marginally significant difference in responses based on a Wilcoxon rank-sum test for ordinal data (p<.10, which means that there is a lower than 10 percent probability that the difference we observe is due to chance), and asterisks indicate a statistically significant difference at the p<.05 level (meaning that there is a lower than five percent probability that the statistically significant differences we observe are due only to chance) between the respondents at schools with affirmative action programs and the respondents at schools without affirmative action programs. In other words, asterisks indicate that it is likely that there is a real difference between the two groups,
113. It is important to note that this conclusion, as discussed earlier, could be influenced by selection bias; it is possible that students who do perceive external stigma were less likely to respond to our survey, perhaps because of their negative experiences with affirmative action. However, if response bias led individuals who felt very strongly about affirmative action to respond to the survey, it would be surprising to find that people of color who feel strong negative reactions did not participate, while those with positive reactions did.
114. For example, as we mentioned in the Introduction, Justice Thomas describes affirmative action in Adarand and Grutter (respectively) as resulting in internal stigma by causing Blacks to "develop dependencies" and external stigma by leaving all black admitted students with the burden of being "tarred [and perhaps treated] as undeserving." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 241 (1995) (Thomas, J., concurring); Grutter v. Bollinger, 539 U.S. 306, 373 (2003) (Thomas, J., dissenting).
115. HOWARD SCHUMAN ET AL., RACIAL ATTITUDES IN AMERICA: TRENDS AND INTERPRETATIONS (rev. ed. 2007).
116. ROBERT F. DEVELLIS, SCALE DEVELOPMENT: THEORY AND APPLICATIONS (2d ed. 2003).
117. Before the scale was made, each item in the scale was standardized so that it had a mean of 0 and a variance of 1. Then the items in the scale were summed. The scale of stigma ranges from -.75 to 2.00, with higher numbers indicating greater experiences of stigma.
118. Before the scales were made, each item in the scale was standardized so that it had a mean of 0 and a variance of 1. Then the items in the scale were summed. Both scales therefore have a mean of zero. The scale indicating support of affirmative action ranges from -2.01 to 1.13, with higher numbers indicating higher levels of support for affirmative action on the 11 items. The scale indicating the diversity of the respondent's background ranges from -1.22 to 1.72, with higher numbers indicating reports of more racially diverse experiences in neighborhoods and schools. Students relied on their own definitions of diverse neighborhoods and schools for these questions. We did not provide any definitions in the survey of what a diverse neighborhood or school looks like or of what it means to have a diverse group of friends.
119. J. SCOTT LONG, REGRESSION MODELS FOR CATEGORICAL AND LIMITED DEPENDENT VARIABLES (1997) (describing the process of estimating and evaluating models for categorical dependent variables); JOHN NETER ET AL., APPLIED LINEAR REGRESSION MODELS (3d ed. 1990) (describing the process of estimating and evaluating regressions for continuous dependent variables). Although hierarchical models would be ideal for hierarchical data like this (students who are nested within schools), we lack sufficient numbers of schools to be able to estimate these models, pointing again to the utility of a broader study of law schools across the country. See TOM SNIJDERS & ROEL BOSKER, MULTILEVEL ANALYSIS (1999) for a discussion of sample size issues in multilevel data. We also estimated more parsimonious models that only include the most common predictors of racial attitudes (variables for attending an affirmative action school, being white, being male, having a diverse background, being the first generation to attend college, and having diverse friends in law school) because of our small sample size. These models have the same findings shown here regarding the effect of attending a school with affirmative action, and they are available on request from the authors.
120. Coefficients in these regression tables can be interpreted as the size of the change in the dependent variable we would expect if the respondent had the characteristic listed rather than the characteristic excluded. For example, the coefficients for males represent the difference between males and females.
121. The coefficients for "attends a school with affirmative action" are not significantly different from zero in Table 3. Models (not shown) that include only the variable "attends a school with affirmative action" also show no significant relationship between either of these dependent variables and school type.
122. See John C. Duncan, Jr., The American 'Legal' Dilemma: Colorblind I/Colorblind II - The Rules Have Changed Again: A Semantic Apothegmatic Permutation, 7 VA. J. SOC. POL'Y & L. 315, 433 (2000) (noting that low-income and first-generation students are disproportionately black or Latino).
123. This result suggests that the reason that these differences appear significant in Table 2 is that the sample of respondents from schools with affirmative action contains a greater share of Whites, males, and students attending school in politically conservative states than the sample from schools without affirmative action, and all of these groups are more likely to express negative attitudes towards affirmative action.
124. The coefficients for "attends a school with affirmative action" are not significantly different from zero in the first model.
125. Responses related to exposure to others of different ethnic and racial backgrounds were self-reported, i.e., one respondent might have reported experiencing diversity, while another respondent might have perceived the same environment as lacking in diversity. We were interested in how respondents' perception of their background related to their attitudes, but it is important to remember that our measure of what it meant to experience diversity as a child was not an objective measure.
126. For example, "I am an Asian American who come [sic] from a very impoverished background.... My parents never made any more than $20K a year - less money than yearly law school tuition! Yet - because of our emphasis only on race as a factor in diversity - I am automatically lumped in with ALL non-Southeast Asians (all Chinese, Japanese, Koreans) whose backgrounds can be VERY different from mine. Yet, many Asian students in my school come from very affluent backgrounds and I have NOTHING in common with them. I am tired of affirmative action and "diversity" programs being centered only on race. A wealthy African American does not necessarily represent an African American from the projects of an inner city - yet our affirmative action programs do not seem to distinguish this." And: "Race does not automatically equate to disadvantage. Persons from well off families who also happen to be designated a member of a minority race may benefit from arbitrary racial status even though their race may not have disadvantaged them at any time. Poverty is a much more accurate measure of social disadvantage. Take for example a poor white person who lives in the inner city (perhaps in a predominantly black neighborhood) and has gone to substandard public schools. Is this person somehow better off than his or her black neighbors? If a student has had a particular experience with racial prejudice that has shaped their perspective then that experience can be mentioned in personal statements and taken into account in that way. It is not at all inappropriate for a school to take such an experience into account as long as they do so on an individual basis." And: "... to argue that affirmative action promotes viewpoint diversity is to assume that members of different races categorically have different viewpoints or come from materially different backgrounds. Race is not the most narrowly tailored proxy for differing backgrounds and ideas. Instead, economic status should be used." And: "In my experience the emphasis of AA is on race and ethnicity - a superficial diversity of skin color. Yet one of the common explanations of AA is to bring together diverse people with diverse experiences-a diversity that is more instructive and enlightening than merely race based diversity. This broader type of diversity comes not just from one's racial or ethnic background, but from their social and economic status, their nationality, political affiliations, the region of the world in which they were raised, and their religion. Too often society uses race and ethnicity as proxies for this more substantive diversity." And: "I think law schools should make special efforts to recruit minority students and encourage them to apply, but I find it too reductive to say that just because someone is a minority, they deserve special consideration for admission. I feel it would be better to use other proxies for race, such as socio-economic status and geographic origin, then race itself."
127. See Bracey, supra note 25, at 39 ("Individuals who are commonly associated with actual beneficiaries - in this instance because of shared racial characteristics - are stigmatized only if one believes the actual beneficiary has been previously stigmatized.") Bracey argues that the "[e]stablishment of the material preconditions of freedom is premised upon the idea of equal humanity and social worth," and "[i]f providing the material preconditions to exercise freedom on an equal basis is not stigmatizing to actual beneficiaries, then there is little reason to think that it would nevertheless prove stigmatizing to members of the same social group who ultimately do not receive any material benefit." Id.
128. See Ross, supra note 6, at 301 ("[T]he rhetoric of innocence avoids the argument that white people have generally benefited from the oppression of people of color, that white people have been advantaged by this oppression in a myriad of obvious and less obvious ways.").
129. See supra Part I.A.
130. Bracey, supra note 25, at 39 (emphasis added).
131. See Cho, supra note 1, at 1061 (asserting that the stereotype of "a uniformly successful, exemplary minority who do not face racial discrimination" is problematic); Harvey Gee, From Bakke to Grutter and Beyond: Asian Americans and Diversity in America, 9 TEX. J. C.L. & C.R. 129, 149-58 (2004) (discussing the model minority myth); see also William C. Kidder, Negative Action Versus Affirmative Action: Asian Pacific Americans Are Still Caught in the Crossfire, 11 MICH. J. RACE & L. 605 (2006) (arguing that "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 generally Angela Onwuachi-Willig & Mario L. Barnes, By Any Other Name?: On Being "Regarded As" Black, and Why Title VIl Should Apply Even If Lakisha and Jamal Are White, 2005 WIS. L. REV. 1283 (discussing the negative stereotypes that attach to Blacks and Latinos).
132. Generally, legacy students are those students who receive a preference in the admissions process on the basis of their familial relationship to alumni of a particular college or university. Onwuachi-Willig, supra note 85, at 1149 n.27; Daniel Golden, Family Ties: Preference for Alumni Children in College Admissions Draws Fire, WALL ST. J., Jan. 15, 2003, at A1.
133. The vast majority of legacy students are white. For example, in 2002 at Texas A&M, a school that has since abolished its legacy admissions policy, legacy preferences allowed for the enrollment of 321 white students who otherwise would not have been admitted, but only three Blacks and twenty-five Latinos in this category. Todd Ackerman, Legislators Slam A&M Over Legacy Admissions, HOUSTON CHRON., Jan. 4, 2004, at A1; see also Texas A&M University, Office of the President, Statement on Legacy, Jan. 9, 2004, available at http://www.tamu.edu/president/speeches/ 040109legacy.html (containing a speech in which the President Robert Gates asserted that "Texas A&M will no longer award points for legacy in the admissions review process"). In fact, Blacks were not allowed to gain admission to Texas A&M University until 1963. See Michael King, Naked City: Texas A&M's Racial Legacy, AUSTIN CHRON., Jan. 16, 2004, available at http://www.austinchronicle. com/gyrobase/Issue/ print?oid=oid%3A 193354. Likewise, one author reported that, at the University of Virginia, ninety-one percent of the legacy applicants who are accepted on an early-decision basis are white, but only 1.6 percent of such admits are black, 0.5 percent are Latino, and 1.6 percent are Asian-American. See Golden, supra note 132, at A1.
134. See Lani Guinier, Comment, Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 186-87, 190 (2003) (describing how racism is linked to stigma and helps to explain "why legacy preferences, which account for a larger percentage of admissions at selective colleges than do racial or ethnic factors, do not generate the same 'stigma'"). But see Carlton F.W. Larson, Titles of Nobility, Hereditary Privilege, and the Unconstitutionality of Legacy Preferences in Public School Admissions, 84 WASH. U. L. REV. 1375, 1418-39 (2000) (arguing that legacy preferences in public university admissions violate the Constitution's prohibition on titles of nobility).
135. See supra Part III.A.2.