A post-race equal protection?

Georgetown Law Journal

Volumn 98, Issue 4, 2010, Pages 967-1004

  Barnes, Mario L ^a   Chemerinsky, Erwin ^a   Jones, Trina ^b  

^a UNIVERSITY OF CALIFORNIA   (United States)

^b DUKE UNIVERSITY   (United States)

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EID: 77954071250     PISSN: 00168092     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (346)

1. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 284 (1978) (quoting Towne v. Eisner, 245 U.S. 418, 425 (1918)).
2. Additionally, as Justice Marshall once concluded, the government the Framers devised was prejudiced and flawed from its very inception, and it took a war and several amendments to arrive at our current Constitution. As such, "We the People" is not a phrase frozen in time, but it must be understood that the Constitution is an evolving document and that terms like "liberty," "equality," and "justice" will necessarily be contested. Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 HARV. L. REV. 1, 1-4 (1987).
3. However defined, equality is protected by the Equal Protection Clause of the Fourteenth Amendment which states, in part, "[N]or shall any State ... deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST, amend. XIV, §1. In addition to definitional challenges, determining the appropriate level of judicial review is critical in most equal protection cases, with varying levels of scrutiny applying to different'classifications. This tiered approach began in Carolene Products, where the Court first indicated that governmental action against "discrete and insular minorities" may require more searching judicial review.
4. United States v. Carolene Prods., 304 U.S. 144, 152 n.4 (1938). The Court later declared that "[A]ll legal restrictions which curtail the civil rights of a single racial group are immediately suspect... [C]ourts must subject them to the most rigid scrutiny."
5. Korematsu v. United States, 323 U.S. 214,216 (1944). This level of review is now typically referred to as strict scrutiny and requires the government to establish a compelling interest achieved through narrowly tailored (the least restrictive) means, for racial classifications.
6. Cf. Eric K. Yamamoto et al., Contextual Strict Scrutiny, 49 How. L.J. 241, 242 (2006) (arguing that the Court's application of strict scrutiny has been context specific and that through interpretation, the Court has shifted from a narrow means-ends analysis to one that involves a "genuine searching judicial inquiry into the linkage of racial group history to current social and economic conditions undergirding the challenged classification").
7. See, e.g.. Sumi Cho, Post-Racialism, 94 IOWA L. REV. 1589, 1594 (2009) ("[P]ost-racialism in its current iteration is a twenty-first-century ideology that reflects a belief that due to the significant racial progress that has been made, the state need not engage in race-based decision-making or adopt race-based remedies...."). Professor Cho claims that the ideology, one component of which is a belief in "race neutral universalism," is so powerful that post-racialism actually became a predominant strategy within the Obama presidential campaign.
8. Id. at 1592-93.
9. Given the latter, post-race should not be narrowly pigeonholed as an ideology held only by political conservatives.
10. See id. at 1592 (asserting that a "proliferation of intellectuals" of varying political ideologies have embraced post-racialism "as a guiding theoretical framework and gestalt").
11. For years, an array of scholars-; across racial and political perspectives-; has suggested that factors other man race (or race alone) are more important to life outcomes.
12. See, e.g., WILLIAM JULIUS WILSON, THE DECLINING SIGNIFICANCE OF RACE: BLACKS AND CHANGING AMERICAN INSTITUTIONS (1978) (asserting that socioeconomic class may be more important to life outcomes than race);
13. Angela P. Harris, From the Color Line to the Color Chart?: Racism and Colorism in the New Century, 10 BERKELEY J. AFR.-AM. L. & POL'Y 52 (2008) (discussing the emergence of color and identity performance, rather than racial categories, as bases upon which future race-based benefits or disadvantage may turn).
14. Critiques of post-racialism have been prevalent in academic and media circles. See Symposium, Beyond the Final Frontier: A "Post-Racial" America?, 25 HARV. BLACKLETTER L.J. 1 (2009);
15. Ian F. Haney López, Post-racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama 98 CAL. L. REV. (forthcoming June 2010), available at http://ssrn.com/abstract-1418212 (describing how crime control rather than the diminishing salience of race contributed to the election of Barack Obama and how contemporary colorblindness characterizes any mention of race as racist);
16. Gregory Parks, Jeffrey Rachlinski & Richard Epstein, Debate: Implicit Race Bias and the 2008 Presidential Election: Much Ado About Nothing?, 157
17. U. PA. L. REV. PENNUMBRA 210 (2009), http://www.pennumbra.com/debates/ pdfs/ImplicitBias.pdf (Parks and Rachlinski questioning why blogs and pundits embraced the 2008 election as post-racial, when there were numerous examples of implicit bias and the relevance of race to judgment; Epstein criticizing his co-authors as focusing on negative racial incidents in the face of our greatest racial achievement);
18. Trina Jones & Mario L. Barnes, Post-Racial? The US. Is Not Ready To Drop Safeguards, L.A. DATLY J., Aug. 28, 2009, at 1, 8 (providing several examples of contemporary racial inequality and racialized attitudes to suggest that America is not post-race);
19. Shelby Steele, Op-Ed., Obama Seduced Whites with a Vision of Their Racial Innocence Precisely To Coerce Them into Acting out of a Racial Motivation, L.A. TIMES, NOV. 5, 2008, at A31 (noting that persons committed to post-race select race as their primary frame of reference);
20. supra note 4.
21. See infra notes 24-28 and accompanying text (discussing the early post-racial views evinced by the Court in the Civil Rights Cases, 109 U.S. 3 (1883), and Plessy v. Ferguson, 163 U.S. 537 (1896)).
22. -109 U.S. at 31-32 (striking down the Civil Rights Act of 1875, which attempted to prohibit private discrimination in the provision of public accommodations)
23. -163 U.S. at 550-551 (holding that segregated railroad accommodations for blacks and whites did not violate the Equal Protection Clause).
24. The Thirteenth, Fourteenth, and Fifteenth Amendments, also known as the Reconstruction Amendments, were designed to eradicate the formal effects of slavery. For an argument that neither colorblind nor race-conscious jurisprudence serves the equality goals of these amendments, see Rhonda V. Magee Andrews, The Third Reconstruction: An Alternative to Race Consciousness and Colorblindness in Post-Slavery America, 54 ALA. L. REV. 483, 487-488 (2003).
25. These cases do not represent the abandonment of racial considerations, so they are not offered as precise examples of the modern iteration of post-race ideology. Quite to the contrary, in the Civil Rights Cases and Plessy, the Supreme Court "saw" race because it explored the meanings accorded racial classifications in that era. These cases, however, still represent powerful antecedents to, or early versions of, post-race-like perspectives. For example, the majority in the Civil Rights Cases suggested shortly after the end of slavery that former slaves should not continue to receive special protections under the law, which is akin to an assertion that freed blacks needed to "get beyond" race. See infra notes 24-26 and accompanying text.
26. The Court in Plessy adopted the ironic position that governments could constitutionally maintain systems of racial categorization or distinction without the categories being understood to create racial disadvantage.
27. See infra notes 27-28 and accompanying text. This approach to equal protection created a distinction between discrimination as difference, which was lawful, and discrimination as disadvantage, which would presumably be unconstitutional.
28. See Angela P. Harris, Equality Trouble: Sameness and Difference in Twentieth-Century Race Law, 88 CAL. L. REV. 1923, 1962-66 (2000). To the extent the Plessy majority claimed that laws maintaining "separate but equal" treatment created a distinction without disadvantage- except in the minds of blacks- the claim presumed that racial categories were neutral or of no consequence. As such, race was without salience, which is a claim at the heart of modern post-racialism.
29. As Justice Powell further opined in Bakke: The Equal Protection Clause, however, was "[v]irtually strangled in infancy by post-civil-war judicial reactionist-." It was relegated to decades of relative desuetude while the Due Process Clause of the Fourteenth Amendment after a short germinal period, flourished as a cornerstone in the Court's defense of property and liberty of contract.
30. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 291 (1978) (footnote omitted)
31. (quoting Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CAL. L. REV. 341, 381 (1949)).
32. -347 U.S. 483 (1954) (striking down state-sanctioned segregation and the separate but equal approach to equal protection within the area of education).
33. See, e.g.. Cooper v. Aaron, 358 U.S. 1, 18-20 (1958) (holding that by virtue of the Supremacy Clause of the Constitution and the Court's power of judicial review, Arkansas was bound by the decision in Brown).
34. Prior to Brown, the Court allowed racial categorization and seemed to believe that equal protection only required equal treatment across categories (i.e., separate but equal). Not until Brown was the Court willing to hold that racial categorization itself was in certain circumstances inherently unequal. In that moment the consequences of racialization became real for the Court. The Court's race-conscious analysis in Brown was followed by a legislative revolution that furthered the destruction of the separate but equal doctrine.
35. See, e.g.. Civil Rights Act of 1964, 42 U.S.C. § § 2000d-2000d-7 (2006);
36. Voting Rights Act of 1965,42 U.S.C. §1971 (2006).
37. The point here is that the Court in Brown decided that government could not engage in systems of racial management where race was used as a basis to distinguish among groups but was also presumed not to matter. This acceptance of the substantive importance of racial distinction recognizes the salience of race, which of course is inconsistent with a portion of the modern post-race ideology. Ironically, however, to the extent one may claim that Brown stands for the proposition that observing racial distinctions is presumptively unlawful, Brown can also be viewed as a harbinger for the modem post-race perspective.
38. See Harris, supra note 11, at 2006 (noting that connoting discrimination with
39. differentiation undermines the Plessy era of racial management but also limits the availability of racial remedy).
40. Jerome M. Culp, Jr., Neutrality, the Race Question, and the 1991 Civil Rights Act: The "Impossibility" of Permanent Reform, 45 RUTGERS L. REV. 965, 966 (1993).
41. Here, "raced" is used as the antithesis of post-race. By "raced" we refer to the Court's acknowledgment of the consequences of racial differentiation. A number of post-Brown, pre-Bakke cases took such an approach.
42. See, e.g., Griggs v. Duke Power, 401 U.S. 424, 431 (1971) (holding that under Title VII of the Civil Rights Act of 1964, when workplace tests disparately impact ethnic minority employees, businesses must prove that the tests are consistent with business necessity and "reasonably related" to the jobs for which the tests are required);
43. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 443-44 (1968) (holding that Section Two of the Thirteenth Amendment gives Congress authority to prohibit private discrimination in the lease and sale of property).
44. Others have used race as a verb to convey the notion that racialization or using race and its attendant meanings as part of a system of assignment is an active and intentional process.
45. See, e.g., John a. powell, A Minority-Majority Nation: Racing the Population in the Twenty-First Century, 29 FORDHAM URB. L.J. 1395, 1415 (2002) ("Race is the vehicle through which we can include or exclude; stratify or equalize; divide or combine... . [R]ace is a verb.");
46. Kendall Thomas, The Eclipse of Reason: A Rhetorical Reading of Bowers v. Hardwick, 79 VA. L. REV. 1805, 1806-1807 (1993) ("[R]ace is a verb ... we are 'raced' through a constellation of practices that construct and control racial subjectivities.").
47. At least with regard to affirmative action programs designed to remedy the past effects of racial discrimination, the Court significantly retreated from allowing the state to use race as a basis for granting corrective benefits.
48. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 202 (1995) (adopting strict scrutiny as applicable to racial considerations in federal, state and local programs);
49. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 470 (1989) (holding that generalized assertions of past racial discrimination could not justify racial quotas in the awarding of public contracts);
50. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 319-20 (1978)
51. (striking down the University of California's consideration of race in the admissions program at the University of California, Davis, Medical School, but allowing a limited consideration of race as part of a multifactored process designed to ensure diversity). During this period of retrenchment the Court also adopted an analysis that provided for strict scrutiny under the Equal Protection Clause only for cases involving purposeful state discrimination.
52. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987)
53. (applying the Washington v. Davis intentional discrimination standard to racially disparate results in Georgia's administration of its death penalty);
54. Washington v. Davis, 426 U.S. 229, 239 (1976) (requiring discriminatory intent in order to find a racially disproportionate impact unconstitutional).
55. The plurality, consisting of Justices Rehnquist Stevens, Stewart, and Chief Justice Burger, concurred with Justice Powell's determination that the U.C. Davis Medical School admissions program was unlawful. Bakke, 438 U.S. at 271. Parts of Justice Powell's separate opinion, however, were also joined by Justices White, Brennan, Blackmun, and Marshall. They concurred with his determination that race could still be a factor in an appropriately designed admissions policy. Id. at 272.
56. Id. at 310.
57. Id. at 311-314
58. See infra notes 30-31, 35-36 and accompanying text (discussing the post-racial perspective advanced in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), and
59. Grutter v. Bollinger, 539 U.S. 306 (2003)).
60. -109 U.S. 3 (1883).
61. Id. at 25.
62. In the strictest sense, one could argue that the majority opinion in the Civil Rights Cases was not the dawn of the Court's earliest commitment to post-racialism because Justice Bradley attempted to distinguish between slavery and race or color discrimination. For instance, the Court declared that "[t]he [T] hirteenth [A]mendment has respect not to distinctions of race, or class, or color, but to slavery." Id. at 24. With regard to "badges and incidents" of slavery, the Court found: "Mere discriminations on account of race or color were not regarded as badges of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment it is not by force of the [T]hirteenth [A]mendment (which merely abolishes slavery)...." Id. at 20, 25;
63. see also Harris, supra note 11, at 1961 ("The decision in the Civil Rights Cases thus separated 'slavery' from 'race discrimination' and interpreted 'slavery' narrowly, reducing the Thirteenth Amendment to a rarely used provision.") (footnote omitted).
64. The idea that one could separate the institution of slavery from the enterprise of racial discrimination seems misguided. The principal justification for slavery was that it was practiced upon a race deemed socially valueless. The overlap between supposed inferior racial status and the propriety of slavery is demonstrated in the Dred Scott case, where the Court noted that blacks "had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations."
65. Dred Scott v. Sandford, 60 U.S. 393, 407 (1856).
66. The explicit message of Bradley's opinion in the Civil Rights Cases is that eighteen years post-slavery, the institution and its effects no longer justified legal protections for former slaves. That rhetoric is completely consistent with tenets of modern post-racial ideology.
67. -163 U.S. 537, 550-551 (1896).
68. Id. at 551.
69. See supra notes 6, 11, 26 (it is this difference without disadvantage approach that allows the Court to minimize the salience of race in Plessy-era cases). Although Plessy was ultimately overturned, the question of whether racial difference (in other words, treating racial groups differently) is tantamount to unconstitutional race discrimination has been a recurring and highly contested issue within constitutional jurisprudence. It was this idea that proponents of race-based affirmative action used in their unsuccessful defense of policies favoring minorities that were claimed to be "benign" or "remedial."
70. See Croson, 488 U.S. at 493 (rejecting the government's claim that some lesser form of judicial review should apply to race-based measures that are benign or remedial).
71. Although the Court has seemingly rejected the difference-without- disadvantage approach in affirmative action cases, it has embraced this approach in other contexts, especially in cases that rely heavily on racially disparate outcomes.
72. See, e.g., McCleskey v. Kemp, 481 U.S. 279, 292-97 (1987) (finding state discriminatory intent necessary for a violation of the Equal Protection Clause and rejecting statistical evidence alone of a racially disparate impact in the administration of the death penalty as evidence of discriminatory intent).
73. For a claim that the Plessy Court's commitment to formal rather than substantive equality remains in the Court's current equal protection jurisprudence,
74. see Cheryl I. Harris, The Story of Plessy v. Ferguson;
75. The Death and Resurrection of Racial Formalism, in CONSTITUTIONAL LAW STORIES 181, 182 (Michael C. Dorf ed.. 2004).
76. -551 U.S. 701,748 (2007) (citation omitted).
77. John a. powell, Post-Racialism or Targeted Universalism?, 86 DENV. U. L. REV. 785, 791 (2008).
78. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 240 (Thomas, J., concurring), discussed infra note 164.
79. ALEXIS DE TOCQUEVILLE, The Present and Probable Future Condition of the Three Races That Inhabit the Territory of the United States, in DEMOCRACY IN AMERICA 331, 331-381 (Phillips Bradley ed., Henry Reeve trans., Alfred A. Knopf 1991) (1835).
80. See supra notes 24-26 and accompanying text
81. -539 U.S. 306, 343 (2003).
82. Id. It is, of course, unclear whether Justice O'Connor intended to create a firm twenty-five-year cutoff for the consideration of race in college admissions or whether she was merely articulating a post-racial aspiration. Justice Thomas's opinion appears to have adopted the former position. See id. at 377 (Thomas, J., concurring in part and dissenting in part) ("I therefore can understand the imposition of a [twenty-five]-year time limit only as a holding that the deference the Court pays to the Law School's educational judgments- and refusal to change its admissions policies will itself expire."). At least one study related to Justice O'Connor's prediction in Grutier suggests her timeframe was far too hopeful.
83. See Alan Krueger et al., Race, Income, and College in 25 Years: Evaluating Justice O'Connor's Conjecture, 8 AM. L. & ECON. REV. 282 (2006)
84. (claiming that even without continuing bias, the legacy of racial discrimination in this country has produced income and educational gaps that are likely to limit the number of blacks at selective institutions of higher education in twenty-five years if race-neutral selection is used). More generally, at least two legal scholars have surmised that race will remain salient long after the prediction from Grutter suggests.
85. Robert S. Chang & Jerome M. Culp, Jr., Business as Usual? Brown and the Continuing Conundrum of Race in America, 2004 U. III. L. REV. 1181, 1182
86. (writing on the occasion of the fiftieth anniversary of the Brown decision, they claimed, "[f]rom our findings, we believe that race will continue to have an unfortunate salience for racial minorities with regard to opportunity and outcome and that the promises of Brown will remain unfulfilled on Brown's hundredth anniversary....").
87. Albin Krebs, George Aiken, Longtime Senator and G.O.P. Maverick Dies at 92, N.Y. TIMES, Nov. 20, 1984, at B10.
88. See supra notes 27-28 and accompanying text.
89. See George F. Will, Misreading Obama's Identity, WASH. POST, Dec. 30, 2007, at B7 (describing racial fatigue as the "unbearable boredom occasioned by today's stale politics generally and by the perfunctory theatrics of race especially").
90. -163 U.S. 537,559 (1896) (Harlan, J., dissenting).
91. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist No. 1, 551 U.S. 701 (2007)
92. (plurality opinion by Chief Justice Roberts);
93. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring);
94. id. at 240 (Thomas, J., concurring).
95. Even if individuals cannot be colorblind, advocates assert that the law must be. Colorblindness and its connection to post-racialism is discussed infra Part III.C.
96. This simple social construction point borders on being regarded as a truism.
97. See, e.g., IAN F. HANEY LÓPEZ, WHITE BY LAW 15 (1996)
98. ("Race is not... simply a matter of physical appearance and ancestry....[T]t is primarily a function of the meaning given to these."). As the following commentary attests, athough race is neither truly biologically or scientifically significant this does not weaken the power of the construction:
99. This leads almost all-including me-to conclude that when we refer to race or reify race, we are referring to the social construction of race rather than a biologically constructed difference.
100. As a result I start with the assumption that race and the "one drop of blood" rule are not .based on any established scientific or biological definition. Of course, that does not mean race has no meaning or power in our society. Quite the contrary, race is an intractable force in American society touching every facet of day-to-day American life-often affecting where one goes to school, the job opportunities presented, who one marries, where one lives, the
101. health care one receives, and even where one is interred following death. Race, in other words, continues to matter in our society, whether its definitional base is scientific or not. In fact race has become a more powerful factor in American society because of its social construction. In sum, race, albeit socially constructed, continues to matter dearly in American society.
102. Alex M. Johnson, Jr., The Re-emergence of Race as a Biological Category: The Societal ImplicationsReaffirmation of Race, 94 IOWA L. REV. 1547, 1561-63 (2009) (footnotes omitted);
103. see also Howard Winant Racial Dualism at Century's End, in THE HOUSE THAT RACE BUILT 87, 89-90 (Wahneema Lubiano ed., 1997)
104. (criticizing contemporary racial categories as "North American designations" that are not "in any sense 'true' or original self-descriptions of the human groups they name" but still finding that the categories matter as a means of rendering the social world both intelligible and opaque).
105. See K. Anthony Appiah, Stereotypes and the Shaping of Identity, in PREJUDICIAL APPEARANCES: THE LOGIC OF AMERICAN ANTIDISCRIMINATION LAW 55, 68-70 (Robert C. Post ed., 2001) (noting that normative stereotypes, which are central to the construction of race and gender identity, need not be a basis for disadvantaging public actions);
106. Johnson, supra note 43, at 1587 (asserting that focusing on ethnicity rather than race allows individuals to benefit from identity categories while rejecting the historical "baggage" tied to preexisting racial categories).
107. See, e.g., Cho, supra note 4, at 1626-1627 (describing the conservative embrace of post-racialism as tracking with a belief in colorblindness).
108. See id. at 1597-1599
109. As this Essay was being written, we were reminded that there are places in the United States where people-; including those who are agents of the state-; still subscribe to and act upon racist ideologies.
110. See Interracial Couple Denied License in La., USA TODAY, Oct. 16, 2009, at 3A
111. (reporting that a Louisiana justice of the peace refused to issue a marriage license to interracial couples because of his concern for the children born of such relationships). Perhaps a post-racialist would claim that such views are aberrational. The problem is one cannot be sure of whether these views are truly rare or whether post-racialism seems so possible because people have typically learned not to voice obviously discriminatory beliefs. There is certainly evidence to suggest that people continue to make decisions based upon race without acknowledging it.
112. See, e.g., Angela I. Onwuachi-Willig &Mario L. Barnes, By Any Other Name? On Being "Regarded as" Black and Why Title VII Should Apply Even If Lakisha and Jamal Are White, 2005 Wis. L. REV. 1283 (2005) (analyzing studies that showed people use proxies for race, such as African-sounding names, to discriminate in employment and housing).
113. See, e.g., Jeffrey M. Chemerinsky & Kimberly C. Kisabeth, Tracing the Steps in a Historic Election, 86 DENV. U. L. REV. 615, 616-19, 624-629 (2009);
114. Cho, supra note 4; Camille A. Nelson, Racial Paradox and Eclipse: Obama as a Balm for What Ails Us, 86 DENV. U. L. REV. 743, 757-758 (2009);
115. Charles J. Ogletree, Jr., From Dred Scott to Barack Obama: The Ebb and Flow of Race Jurisprudence, 25 HARV. BLACKLETTER L.J. 1 (2009);
116. Angela Onwuachi-Willig & Osamudia James, The Inclining Significance of Presidential Races, 72 L. & CONTEMP. PROBLEMS (forthcoming 2010).
117. Recently, it has been revealed that at least one U.S. Senator believed candidate Obama's race- or at least his ability to manipulate it or perform it-; would be a political asset News reports of a newly released book,
118. JOHN HEILEMANN & MARK HALPERIN, GAME CHANGE: OBAMA AND THE CLINTONS, MCCAIN AND PAUN, AND THE RACE OF A LIFETIME (2010)
119. refer to Senate Majority Leader Harry Reid as follows: "[he] believed that the country was ready to embrace a black presidential candidate, especially one such as Obama-a 'light-skinned' African American 'with no Negro dialect unless he wanted to have one....'"
120. See Chris Cillizza, Majority Leader Reid Apologizes to Obama for 2008 Remarks, WASHINGTONPOST.COM, Jan. 10, 2010, http:// www.washingtonpost.com/wp- dyn/content/article/2010/01/09/AR2010010902141.html.
121. Jones & Barnes, supra note 5.
122. We wrote of the Birther Movement: Birthers claim Obama was not born in the U.S. and therefore is not lawfully president. A subtext to the Birthers' argument-; were it true-; is that because Obama has not been naturalized, not only is he not a U.S. citizen, he is not even entitled to be in this country....To be sure, the Birthers' claims are unlikely to gain traction given that Hawaii has released a birth certificate showing that the president was in fact bom on Oahu on Aug. 4, 1961....Could it be, however, that the Birthers' real goal is to undermine Obama's leadership by playing upon a racist stereotype-one that is usually leveled at Asian-Americansthat the president is foreign?
123. For example, defining Japanese-American citizens as foreign and presumptively disloyal contributed to the World War Q internment challenged in the 1944 case Korematsu v. United States. More recently, legal scholars... have pointed out a similar process being deployed against Arab-Americans who have been "racialized" as terrorists since Sept. 11, 2001.
124. Id. at 8. For discussions of the racialization of Arab-Americans and Asian-Americans as foreign, see Thomas W. Joo, Presumed Disloyal: Executive Power, Judicial Deference, and the Construction of Race Before and After September 11,34 COLUM. HUM. RTS. L. REV. 1, 3 (2002) (alleging that "racialized presumptions of 'Oriental' foreignness and disloyalty... have consistently influenced Asian American legal history");
125. Leti Volpp, The Citizen and the Terrorist, 49 UCLA L. REV. 1575 (2002);
126. Adrien Katherine Wing, Civil Rights in the Post 911 World: Critical Race Praxis, Coalition Building, and the War on Terrorism, 63 LA. L. REV. 717, 723 (2003)
127. (arguing that although "Arabs and Muslims are often stereotyped as dangerous, evil, sneaky, primitive, and untrustworthy, much as Blacks are, the criminality has a twist-they are considered potential or actual terrorists").
128. In discussing the town hall meetings we observed: Unlike the Birther Movement whose reliance on the significance of race is not even thinly veiled, understanding what has been transpiring at congressional town hall meetings across the country is more complicated. Clearly, some of the disruptive behavior has been carefully orchestrated by and to protect the interests of private health insurers. Undoubtedly, some of the vitriol is a reflection of fears fueled by rumors of "death panels" and other misinformation. And some of the passion is likely caused by uncertainty concerning the effects of various proposals and legitimate questions about whether the country can bear the costs of a public option. But one cannot help but also wonder if health care reform is the real target of some of the angry hysteria. Strident cries to "take my country back" frequently sound more like frustrated anger over the fact that liberais are running the federal government and this time there is added tension related to the fact that their leader is black. After all, does one really need to take a loaded gun to a town hall attended by the president if [the] purpose is merely to question the wisdom of health care reform?
129. To be sure, many maintain that the Birther Movement and the brouhahas at town hall meetings are perpetuated by a radical fringe not representative of average Americans' beliefs. However, the unwillingness of Republican legislators and mainstream conservative organizations to do more to squelch the zeal of Birthers' and the most virulent town hall protestors suggests that these ideas resonate with mainstream America more than many care to admit.
130. Jones & Barnes, supra note 5, at 8. Interestingly, former President Jimmy Carter also came to the conclusion that the opposition to healthcare was based, in part, upon the President's race.
131. See Jeff Zeleny, Obama Rejects Race as the Lead Cause of Criticism, N.Y. TIMES, Sept. 19, 2009, at All (reporting former President Carter's claim that racism was the cause of opposition to the policies of the Obama administration and current President Obama's disagreement with the charge).
132. We noted of the Sotomayor nomination process: [T]he Senate Judiciary Committee held confirmation hearings for Sotomayor, the first Latina nominee to the U.S. Supreme Court.... Conservatives ... engaged in grandstanding that was racial and political in nature. In their efforts to defeat her nomination, Senate Republicans seized on Sotomayor's singular comment from a speech in which she espoused the comparative benefits of being a wise Latina judge. What was alarming about the senators' questions was their insinuation, ostensibly based on Sotomayor's comment that nominees of color, because of their race, are incapable of being impartial. The hearings were a blazing display of one of the hallmarks of the unidirectional application of the concept of race-that is, the privilege of white males to ignore that they have a race and that their racial experiences shape who they are and how they view the world....One of the privileges of whiteness is the imposition of colorblindness as the only acceptable framework to discuss race, even as people of color deal with the experience of being marked by racial difference on a daily basis. To have the mere mention of that experience be equated with bias in favor of one's own minority group is another form of racialized unfairness.
133. Jones & Barnes, supra note 5, at 8. Ironically, the nomination of Justice Sotomayor was described as the President backtracking on the post-race idea that he signaled would guide his administration.
134. See Peter Baker, Court Choice Pushes Issue of 'Identity Politics' Back to Forefront, N.Y. TIMES, May 31, 2009, at 20
135. (arguing that Obama, the post-racial symbol, had returned to identity politics by nominating Judge Sotomayor);
136. Shelby Steele, Sotomayor and the Politics of Race, WALL ST. J., June 8, 2009, at A17
137. (claiming "President Obama's nomination of Sonia Sotomayor for the Supreme Court points to a dilemma that will likely plague his presidency: How does a 'post-racialist' president play identity politics?");
138. see also Ogletree, supra note 48, at 38 (alleging that the confirmation process was steeped in racial politics and quoting President Obama's assertion that at the time of her nomination, Justice Sotomayor was the most qualified justice to be considered since Thurgood Marshall).
139. Finally, the Gates arrest and the fallout from the President's comments provided the most significant example of post-election racial relevancy. With regard to the incident we asserted: Few will forget the arrest of Harvard professor Henry Louis "Skip" Gates by Sgt James Crowley, a Cambridge police officer, after a neighbor reported what she thought was a break-in at Gates' home. When questioned about the incident during a primetime news conference on health care, Obama said, "the Cambridge police acted stupidly in arresting someone when there was already proof they were in their own home." For days, the national conversation on health care was derailed as the nation debated Obama's statement and whether the president was a racist For some people, Obama's comment seemed to confirm what they had suspected all along-; that beneath the veneer of mainstream acceptability, Obama was just another black man who could not be trusted to protect the interest of all citizens. Might this explain why Obama mostly avoided discussions of race during the election? To speak of race, to identify with a race, means you are racist? This reading of race is devoid of history and context. Much like the Civil Rights Cases, it ignores the country's history of racial oppression and the slow progression toward full racial inclusion. One need only look to the races of the 110 U.S. Supreme Court justices before Sotomayor and the 43 U.S. presidents before Obama, to see that race has mattered.
140. More important perhaps than the nation's reaction to Obama's observation was its response to the question of whether Gates was racially profiled. No one other than Gates and Crowley were present and the two men initially had very different accounts of what occurred. Yet Americans seemed split over whether the arrest was racially motivated. The popular post-race understanding of Gates' arrest was that it was an isolated incident a misunderstanding that should not be given too much weight....To reach a firm conclusion without all the facts is, of course, problematic. But equally troubling is the presumption, fueled by a post-race ideology, that race was not involved. This presumption is counter to the deeply troubled history between law enforcement and people of color in this country.... The race-neutral explanation for the Gates incident ignores this, as well as the instances of racial profiling recounted by both Harvard students and professors in recent years, and the disproportionate number of people of color incarcerated in this country.
141. Jones & Barnes, supra note 5, at 8.
142. See ROY L. BROOKS, RACIAL JUSTICE IN THE AGE OF OBAMA 12-14 (2009);
143. Mario L. Barnes, Reflections on a Dream World: Race, Post-Race and the Question of Making It Over, 11 BERKELEY J. AFR.-AM. L. & POL'Y 6 (2009)
144. (suggesting that the significance of race should be measured as a function of the life circumstances of the largest portion of disenfranchised minorities, rather than singular examples of individual success).
145. See, e.g., ROY L. BROOKS, RETHINKING THE AMERICAN RACE PROBLEM 106-09 (1992) (presenting statistics which suggest that "poor African Americans live at the low end of the American dream");
146. MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY (2003) (in various chapters discussing racial disparities in education, wealth accumulation, and treatment within the criminal justice system);
147. CHRISTOPHER EDLEY, JR., NOT ALL BLACK AND WHITE: AFFIRMATIVE ACTION, RACE, AND AMERICAN VALUES 41-73 (1996) (reviewing social science evidence of racial inequality);
148. ANDREW HACKER, Two NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL (1992);
149. see also Chang & Culp, supra note 36, at 1188-92 (presenting the "Inequality Cycle" to explain why, fifty years after the Brown decision, wealth accumulation had lagged for racial minorities due to systemic disparities in housing, education, family composition, employment and health care);
150. Reginald T. Shuford, Why Affirmative Action Remains Essential in the Age of Obama, 31 CAMPBELL L. REV. 503, 512-521 (2009)
151. (presenting recent statistics illustrating racial disparities in education, health, housing, wealth, and within the criminal justice system).
152. In the sections that follow, we look at comparative data for racial groups in the areas of employment wealth accumulation, education, and interactions within the criminal justice system, including incarceration. We realize that not all minority groups are represented and will mainly discuss those groups with the largest disparities. The data are intended to be illustrative, with the hope that a "better picture of the world as it is will enable us to create the world as it should be."
153. Frank H. Wu, Burning Shoes and the Spirit World: The Charade of Neutrality, 44 HARV. C.R.-CL.L. REV. 313, 313 (2009).
154. In 2008, the poverty rate for blacks was 24.7% and in 1959, the year for which data are first available, it was 55.1%. U.S. CENSUS BUREAU, CURRENT POPULATION SURVEY, ANNUAL SOCIAL AND ECONOMIC SUPPLEMENTS, TABLE 2: POVERTY STATUS OF PEOPLE BY FAMILY RELATIONSHIP, RACE, AND HISPANIC ORIGIN: 1959 TO 2008 (2009), http://www.census.gov/hhes/www/poverty/histpov/hstpov2.xls.
155. In 2008, the poverty rate was 8.6% for non-Hispanic whites, 24.7% for blacks, 11.8% for Asians, and 23.2% for Hispanics. U.S. CENSUS BUREAU, CURRENT POPULATION REPORTS, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE TN THE UNITED STATES: 2008, at 13 (2009), http://www.census.gov/prod/2009pubs/p60-236.pdf;
156. see also U.S. CENSUS BUREAU, supra note 57.
157. U.S. CENSUS BUREAU, supra note 58.
158. See U.S. CENSUS BUREAU, supra note 57.
159. In 1959, the poverty rate for African Americans was 55.1%. By 1970, it had decreased to 33.5%. Since 1970, the rate has declined further to the current rate of 24.7%. Id.
160. See BROOKS, supra note 54, at xiv (describing the resource disparity experienced by African Americans as resulting from external factors such as racism and internal factors such as behavior and values);
161. HARRELL R. RODGERS, JR., POVERTY AMID PLENTY: A POLITICAL AND ECONOMIC ANALYSIS 41-58 (1979) (including racism among the four leading causes of poverty);
162. James W. Fox Jr., Citizenship, Poverty, and Federalism: 1787 - 1882, 60 U. PITT. L. REV. 421, 541 (1999) (exploring the historical relationship between race and poverty).
163. The connection between race, culture, and poverty has sparked heated discussion in recent decades.
164. See MICHAEL B. KATZ, THE UNDESERVING POOR: FROM THE WAR ON POVERTY TO THE WAR ON WELFARE 16-43 (1989) (discussing the Moynihan Report and various culture of poverty theories); see also Peter Edelman,
165. Where Race Meets Class: The 21st Century Civil Rights Agenda, 12 GEO. J. ON POVERTY L. & POL'Y 1, 2-7 (2005) (summarizing competing explanations for poverty among people of color).
166. See Edelman, supra note 63, at 4.
167. See infra notes 104-115 and accompanying text.
168. Jeanne Sahadi, Wealth Gap Widens, CNN.COM , Aug. 29, 2006, http://money.cnn.com/2006/08/29/news/economy/wealth-gap/
169. (analyzing Economic Policy Institute data which found, over a forty-year period beginning in the 1960s, that the top 1% of wealth-holding households increased their wealth from 125 times the median wealth in the U.S. to 190 times the median wealth, and that the top 20% of wealth-holding households increased during the same period from 15 times to 23 times overall median wealth).
170. Edelman, supra note 63, at 4.
171. Id.
172. These salaries were compared to the salaries of entry-level workers in the CEOs' companies. Id.;
173. see also James D. Cox, Fair Pay for Chief Executive Officers, in LAW AND CLASS IN AMERICA: TRENDS SINCE THE COLD WAR 99, 99-101 (Paul D. Carrington & Trina Jones eds., 2006) (detailing exorbitant pay increases among CEOs).
174. David Cay Johnston, Income Gap is Widening, Data Shows, N.Y. TIMES, Mar. 29, 2007, at C1 (reporting statistics based on 2005 data);
175. see also JULIA B. ISAACS, ISABEL V. SAWHTLL & RON S. HASKTN, GETTING AHEAD OR LOSING GROUND: ECONOMIC MOBILITY IN AMERICA 27-29, 47-50 (2008), http://econornicmobmty.org/assets/pdfs/PEW-EMP-GETTING-AHEAD-FULL.pdf (reporting that income and wealth inequality have been increasing since the 1970s and noting that the concentration of assets at the top of the income distribution has been growing since at least 1989).
176. ISAACS ET AL., supra note 70, at 4. The researchers also found that the stickiness at the top and bottom of the income distribution does not exist for children bom into middle-income families, who "have roughly an equal shot at moving up or moving down and of ending up in a different income quintile than their parents." Id.
177. Id.
178. Id. at 7.
179. See id. at 19.
180. U.S. CENSUS BUREAU, supra note 58, at 5.
181. See MELVTN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY 30-31 (2d ed. 2006).
182. See id. at 30.
183. Id.
184. COUNCIL OF ECONOMIC ADVISORS, ECONOMIC REPORT OF THE PRESIDENT 316 tbl. B-33 (2003), http://www.gpoaccess.gov/nsbudget/fy04/pdf/2003-erp.pdf;
185. OLIVER & SHAPIRO, supra note 76, at 100. For a summary of studies examining wealth differentials overtime, see id. at 97-98; BROOKS, supra note 54, at 129-136
186. OLIVER & SHAPIRO, supra note 76, at 7-8.
187. ISAACS ET AL., supra note 70, at 5.
188. Id.
189. At least one scholar has asserted that for African Americans, it is not white racism, but this continuing resource disparity- "a paucity of financial, human, and social capital"-that embodies the contemporary race problem and constitutes the central question of racial justice in what he terms the "Age of Obama." BROOKS, supra note 54, at xiv. As we have maintained throughout this Essay, others may simply refer to this as the post-race era.
190. OLIVER & SHAPIRO, supra note 76, at 8.
191. Id.
192. Id. at 4-5, 129-154
193. Id. at 22.
194. Homeownership rates for all U.S. households peaked at 69% in 2004 before declining to 67.8% in 2008. U.S. CENSUS BUREAU, HOMEOWNERSHIP RATES BY RACE AND ETHNICITY OF HOUSEHOLDER, HOUSING VACANCIES AND HOMEOWNERSHIP, TABLE 22 (2008), http://www.census.gov/hhes/www/housing/hvs/annual08/ann08t22.xls;
195. John Leland, Homeownership Losses Are Greatest Among Minorities, Report Finds, N. Y. TTMES, May 13, 2009, at A16.
196. See U.S. CENSUS BUREAU, supra note 88.
197. RAKESH KOCHHAR, THROUGH BOOM AND BUST: MINORITIES, IMMIGRANTS AND HOMEOWNERSHIP 4-5 (2009), http://pewhispanic.org/files/reports/109.pdf.
198. In 2006, 17.5% of white home buyers had subprime loans, compared with 44.9% of Hispanics and 52.8% of blacks. Leland, supra note 88.
199. For white households, home ownership rates fell from 76.1% in 2004 to 74.9% in 2008. For African Americans, rates fell from 49.4% in 2004 to 47.5% in 2008. For native-born Latinos, rates fell from 56.2% in 2005 to 53.6% in 2008. Id.
200. In 2007, 26.1% of Latino, 30.4% of black, and 12.1% of white applicants were rejected. Id.
201. See id.
202. OLIVER & SHAPIRO, supra note 76, at 8, 139-149
203. Id. at 140-149
204. Id at 139-149
205. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, HOUSEHOLD DATA ANNUAL AVERAGES 2009, EMPLOYED PERSONS BY DETAILED OCCUPATION, SEX, RACE, AND HISPANIC OR LATINO ETHNICITY 212, available at http://www.bls.gov/cps/cpsaat11.pdf;
206. see also U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM'N EEO-1 SURVEY ANALYSIS (2007), http://archive.eeoc.gov/stats/jobpat/2007/introduction.html.
207. In 2008, African Americans and Latinos constituted 11% and 14%, respectively, of employed persons. Yet they represented only 8.3% and 7.1%, respectively, of employees in management and professional occupations. In contrast they constituted 15.9% and 20.2% of employees in service occupations, 11.5% and 12.2% of employees in sales and office occupations, 6.9% and 25% of employees in natural resource, construction, and maintenance occupations, and 14.5% and 20.4% of employees in production, transportation, and material moving occupations.
208. Id. at 209-214
209. In 2007, the unemployment rate was 4.1% for non-Hispanic whites, 8.3% for blacks, 3.2% for Asians, and 5.6% for Hispanics or Latinos. BUREAU OF LABOR STATISTICS, U.S. DEP'T OF LABOR, HOUSEHOLD DATA ANNUAL AVERAGES, EMPLOYMENT STATUS OF THE CIVILIAN NONINSTTTUTIONAL POPULATION BY AGE, SEX, AND RACE 200-02, available at http://www.bls.gov/cps/tables.htm.
210. U.S. CURRENT POPULATION SURVEY AND THE NAT'L COMM. ON PAY EQUITY, THE WAGE GAP, BY GENDER AND RACE, available at http://www.infoplease.com/ipa/ A0882775.html.
211. See, e.g., ALFRED BLUMROSEN & RUTH BLUMROSEN, Discrimination Against Blacks, in THE REALTTY OF INTENTIONAL JOB DISCRIMINATION IN METROPOLITAN AMERICA-1999, at 111, 114 (2002), available at http://www.eeol.com/1999-nr.htm (concluding that over one-fourth of establishments studied did not hire roughly proportionate numbers of blacks in at least one occupational category);
212. Marianne Bertrand & Sendhil Mullainathan, Are Emily And Greg More Employable Than Lakisha And Jamal? A Field Experiment On Labor Market Discrimination, 94 AM. ECON. REV. 991, 997-98, (2004) (finding that resumes with white names resulted in 50% more callbacks than those with AfricanAmerican names);
213. see also Onwuachi-Willig & Barnes, supra note 47, at 1297-1305 (discussing the Bertrand and Mullainathan study and what its results suggest for employment discrimination laws).
214. From 1997 to 2008, the EEOC received between 26,000 and 34,000 charges alleging race discrimination per year, with a low of 26,740 in 2005, and a high of 33,937 in 2008. During that time period, EEOC findings of no reasonable cause remained roughly consistent at between 63.3% and 68.6%. The number of merit resolutions, however, increased from a low of 8.3% in 1997 to a high of 20.1% in 2006 with a 19.6% rate in 2008. The statistics are not broken out by racial category.
215. See U.S. EQUAL EMPLOYMENT OPPORTUNITY COMM'N, RACE-BASED CHARGES: FY 1997-FY 2008, available at http://archive.eeoc.gov/stats/race.html.
216. See EDUCATION MATTERS: SELECTED ESSAYS BY ALAN B. KRUEGER 11-13 (Krueger et al. eds., 2000) (discussing foundational studies proving a link between educational attainment and income).
217. According to the Center for Labor Market Studies at Northeastern University, approximately 6.2 million students in the United States between the ages of 16 and 24 in 2007 dropped out of high school. While the dropout rate for whites was 12.2%, it was 27.5% for Latinos and 21% for blacks. See High School Dropout Crisis Continues in U.S., Study Says, CNN.COM, May 5, 2004 http://www.cnn.com/2009/US/05/05/dropout.rate.study/index.html.
218. The U.S. Census Bureau educational attainment data for 2008 state that for both genders over the age of 18: of 182,714,000 non-Hispanic whites, 56,676,000 graduated high school, 35,759,000 attended some college (without graduating), and 33,159,000 received a bachelor's degree; of 26,363,000 blacks, 9,213,000 graduated high school, 5,659,000 attended some college (without graduating), and 3,215,000 obtained bachelor's degrees; of 30,286,000 Hispanics, 9,130,000 graduated high school, 4,684,000 attended some college (without graduating), and 2,539,000 received bachelor's degrees; of 10,277,000 Asians, 1,965,000 graduated high school, 1,478,000 attended some college (without graduating), and 3,106,000 received bachelor's degrees. U.S. CENSUS BUREAU, EDUCATIONAL ATTAINMENT IN THE U.S.: 2008, available at http://www.census.gov/ population/www/socdemo/education/cps2008.html (information on associates degrees was omitted).
219. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33-35 (1972) (finding no fundamental right to education and that distinctions premised on socioeconomic class would receive only rational basis review);
220. Mario L. Barnes & Erwin Chemerinsky, The Disparate Treatment of Race and Class in Constitutional Jurisprudence, 72 L. & CONTEMP. PROBLEMS (forthcoming 2010) (challenging the Court's decision in the Rodriguez case based on the claim that socioeconomic class currently functions in a substantially similar manner as suspect classifications, which receive heightened scrutiny by the courts).
221. See, e.g., Jeannine Bell, Hate Thy Neighbor: Violent Racial Exclusion and the History of Segregation, 5 OHIO ST. J. CRIM. L. 47, 66-68 (2007) (discussing discrimination, same-race preference, and violence as tools used to shape neighborhood racial composition);
222. Steven W. Bender, Knocked Down Again: An East L.A. Story on the Geography of Color and Colors, 12 HARV. LATINO L. REV. 109, 132-33 (2009) (discussing how race shapes economic investment in neighborhoods);
223. David A. Troutt, Ghettos Revisited: Antimarkets, Consumption, and Empowerment, 66 BROOK. L. REV. 1, 23-24 (2000) (examining the connection between education and wealth).
224. The term "achievement gap" describes statistically significant performance differences across identity categories such as race, gender, and class on standardized tests and other metrics of educational performance. Studies have tracked achievement gaps between whites and minorities on reading and math exams. See, e.g., NAT'L ASSESSMENT OF EDUC. PROGRESS (NAEP), REPORT, ACHIEVEMENT GAPS: How BLACK AND WHITE STUDENTS IN PUBLIC SCHOOLS PERFORM IN MATHEMATICS AND READING ON THE NATIONAL ASSESSMENT OF EDUCATIONAL PROGRESS 4, available at http://nces.ed.gov/nationsreportcard/studies/gaps/(documenting black-white achievement gaps);
225. NAEP, THE NATION'S REPORT CARD: NAEP 2008 TRENDS IN ACADEMIC PROGRESS, available at http://nces.ed.gov/pubsearch/pubsinfo.asp?pubid=2009479 (graphically representing the most recent data on reading and math gaps between blacks, whites, and Hispanics).
226. See CONTEMPORARY INTELLECTUAL ASSESSMENT: THEORIES, TESTS, AND ISSUES 242-43, 547-48 (Dawn P. Flanagan & Patti L. Harrison eds., 2d ed. 2005) (discussing studies of cultural loading-the degree to which knowledge or experience with mainstream U.S. culture is required by a test-and cultural bias in intelligence testing).
227. For a discussion of lowered expectations based on race, see ELLIS COSE, COLOR-BLIND: SEEING BEYOND RACE IN A RACE-OBSESSED WORLD 50-67 (1997) (claiming that narratives of the intellectual inferiority of minorities have been deployed against various groups throughout U.S. history, adding to the low expectations partially responsible for their underperformance). Cose also claims that blacks in particular have likely internalized some of the noxious stereotypes related to their capabilities.
228. Id. at 65.
229. This claim implicates the work of Columbia University Provost and social scientist Claude Steele, who has, for years, been researching the ways in which black student performance is affected by what he terms "stereotype threat"-''the threat of being viewed through the lens of a negative stereotype, or the fear of doing something that would inadvertently confirm that stereotype." Claude M. Steele, Thin Ice: "Stereotype Threat" and Black College Students, ATLANTIC, Aug. 1999, at 46.
230. Others, however, have sought to expose the ways in which unconscious bias and structural discrimination produce these disparities. Jerry Kang, Trojan Horses of Race, 118 HARV. L. REV. 1489, 1498-1528 (2005) (discussing studies demonstrating that subjects exhibited unconscious bias based on race);
231. Ian F. Haney López, Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination, 109 YALE L.J. 1717 (2000) (addressing the nature of institutional racism in judicial decision making);
232. Charles R. Lawrence, III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 329-44 (1987) (using Freudian psychoanalysis in constructing a model for unconscious racism).
233. See supra notes 35-36 and accompanying text.
234. Using the previously cited data from 2008 and computing the percentages for individuals within the population who are over 18 and are college graduates from the data, we find the following: 20% of adult whites have bachelor's degrees, as compared to 11.8% for blacks, 8.4% for Hispanics, and 30.2% for Asians. US Census Bureau, supra note 106.
235. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007) (signaling the Court's aversion to allowing the consideration of race in plans to integrate primary and secondary schools);
236. Gratz v. Bollinger, 539 U.S. 244, 275 (2003) (striking down the formulaic consideration of race in the University of Michigan undergraduate admissions).
237. In 2007, Michigan became another state to use a voter initiative to ban the consideration of race in state education and hiring decisions. See Transcription: From Proposition 209 to Proposal 2: Examining the Effects of Anti-Affirmative Action Voter Initiatives, 13 MICH. J. RACE & L. 461, 470 (2008).
238. See RANDALL KENNEDY, RACE, CRIME, AND THE LAW 76-134 (1997) (tracing the unequal treatment of blacks by state and federal criminal justice systems from slavery through the civil rights era);
239. CYNTHIA LEE, MURDER AND THE REASONABLE MAN 155-72 (2003) (demonstrating how stereotypes are deployed against Asian and Latino victims in criminal trials);
240. IAN F. HANEY LÓPEZ, RACISM ON TRIAL: THE CHICANO FIGHT FOR JUSTICE (2003) (describing the "legal violence" perpetrated against MexicanAmerican political activists during their trials in the late 1960s).
241. The most recent U.S. Census Bureau numbers for 2008 indicated that for individuals identifying themselves by just one race, whites comprised 74.3% of the population, while blacks were 12.3%, Hispanics were 15.1%, and Asians were 4.4%. U.S. CENSUS BUREAU, 2006-2008 AMERICAN COMMUNITY SURVEY 3-YEAR ESTIMATES: DATA PROFILE HIGHLIGHTS, available at http://factfinder.census.gov/servlet/ ACSSAFFFacts.
242. U.S. DEP'T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, PRISON INMATES AT MIDYEAR 2008: STATISTICAL TABLES 17 (2008). These statistics are for midyear 2008 and include persons incarcerated in local, state, and federal prisons.
243. Id. The Bureau of Justice does not keep separate statistics for Asians, American Indians, and multiple-raced persons, even though those populations are included in the total number of inmates.
244. Justice Policy Institute, Cellblocks or Classrooms?: The Funding of Higher Education and Corrections and Its Impact on African American Men 10 (2003), available at http://www.justicepolicy.org/images/uploaad02-09-REP- CellblocksClassrcoms-BB-AC.pdf.
245. ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN PROSECUTOR 5 (2007) (discussing the ways in which prosecutorial discretion contributes to racial disparities);
246. Mario L. Barnes, Black Women's Stories and the Criminal Law: Restating the Power of Narrative, 39 U.C. DAVIS L. REV. 941, 945-46 (2006) (asserting that stereotypes related to race are deployed against people of color in the narratives of criminal trials);
247. Christian Halliburton, Neither Separate Nor Equal: How Race-Sensitive Enforcement of Criminal Laws Threatens to Undo Brown v. Board of Education, 3 SEATTLE J. SOC. JUST. 45, 46-47 (2004) (claiming that various forms of racism in the administration of criminal justice undermines Brown's move away from separate but equal);
248. see also Erwin Chemerinsky, Eliminating Discrimination in Administering the Death Penalty: The Need for the Racial Justice Act, 35 SANTA CLARA L. REV. 519, 521-24 (1995) (analyzing racial bias in the administration of the death penalty);
249. Tamara F. Lawson, "Whites Only Tree," Hanging Nooses, No Crime?: Limiting the Prosecutorial Veto for Hate Crimes in Louisiana and Across America, 8 U. MD. L.J. RACE RELIGION GENDER & CLASS 123, 171-79 (2008) (asserting the racialized nature of the charging decisions in the Jena Six case).
250. See, e.g., Richard Delgado, "Rotten Social Background": Should the Criminal Law Recognize a Defense of Severe Environmental Deprivation?, 3 L. & INEQ. 9, 18-23 (1985).
251. See EDUARDO BONILLA-SILVA, RACISM WTTHOUT RACISTS: COLOR-BUND RACISM AND THE PERSISTENCE OF RACIAL INEQUALITY IN THE UNITED STATES 26 (2d ed. 2006) ("However, it is also true ... that because people of color still experience systemic discrimination and remain appreciably behind whites in many important areas of life, their chances of catching up with whites are very slim.");
252. EDWARD ROYCE, POVERTY AND POWER: THE PROBLEM OF STRUCTURAL INEQUALITY 13 (2009) (describing structural inequality in various ways, including that "poverty is a function of power, and people are poor because of inequities in government policy and labor market institutions"). For a comment on institutional racism,
253. see SHIRLEY BETTER, INSTTTUTIONAL RACISM: A PRIMER ON THEORY AND STRATEGIES FOR SOCIAL CHANGE 24 (2002) (describing racism as enduring not because of individual discrimination, but because race is a factor in a system that maintains privileges and disadvantages through institutional practices);
254. see also Haney López, supra note 111.
255. This outcome is certainly possible in the near term. Four Justices (Scalia, Thomas, Roberts, and Alito) have voted essentially in favor of constitutional colorbindness, which works to achieve the post-race goal of eradicating race-based decision making. At present these Justices lack a locked-in majority only because Justice Kennedy seems to allow for a very narrow set of circumstances where he believes race can still be lawfully considered.
256. See, e.g.. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist No. 1, 551 U.S. 701,797 (2007) (Kennedy J., concurring);
257. see also Rachel F. Moran, Let Freedom Ring: Making Grutter Matter in School Desegregation Cases, 63 U. MIAMI L. REV. 475, 482-83 (2009).
258. Rosemary C. Hunter & Elaine W. Shoben, Disparate Impact Discrimination: American Oddity or Internationally Accepted Concept?, 19 BERKELEY J. EMP. & LAB. L. 108, 109 (1998).
259. The Court in Griggs required employers to articulate the employment-related purpose of any test producing disproportionately negative effects for groups protected under the statute. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971).
260. After Griggs, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(k) (2006), plaintiffs may bring employment discrimination claims if they establish that a facially neutral criteria caused a statistically significant impact on a protected group and that the use of the criteria was not justified by business necessity.
261. See, e.g.. Older Americans Act Amendments of 2006, 42 U.S.C. § 3030c-2(d) (2006) ("If the Assistant Secretary finds that there is a disparate impact upon low-income or minority older individuals or older individuals residing in rural areas in any State or region within the State regarding the provision of services, the Assistant Secretary shall take corrective action to assure that such services are provided to all older individuals without regard to the cost sharing criteria.");
262. CAL. GOV'T CODE § 12941 ("The Legislature... further declares its intent that the disparate impact theory of proof may be used in claims of age discrimination.");
263. see also 305 III. COMP. STAT. 5/4-23 (although not providing a private cause of action, nonetheless requiring the state to track the disparate effects on racial and ethic groups of various provisions of TANF).
264. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987).
265. See Washington v. Davis, 426 U.S. 229, 253 (1976) (Stevens, J., concurring) (asserting that intentional discrimination and disparate impact are connected, "[f]or normally the actor is presumed to have intended the natural consequences of his deeds").
266. Id.
267. Id. at 241-42;
268. see also BARBARA J. FLAGG, WAS BLIND, BUT NOW I SEE: WHITE RACE CONSCIOUSNESS AND THE LAW 50-51 (1998).
269. -129 S. Ct. 2658 (2009).
270. Id. at 2671.
271. Id. at 2666-2667
272. Id. at 2671.
273. See Ricci v. DeStefano, 554 F. Supp. 2d 142 (D. Conn. 2006);
274. Ricci v. DeStefano, 530 F.3d 88 (2d Cir. 2008).
275. Ricci, 129 S. Ct. at 2677.
276. We do not challenge the obvious truth that favoring one group may create disfavor for another group. We only contest the inference that all choices between groups should be viewed with equal skepticism. As John Hart Ely surmised over 30 years ago: "When the group that controls the decision making process classifies so as to advantage a minority and disadvantage itself, the reasons for being unusually suspicious, and consequently, employing a stringent brand of review, are lacking." John Hart Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 735 (1974).
277. Ricci, 129 S. Ct. at 2682 (Scalia, J., concurring). Justice Scalia's rejection of impact data appears to be limited to the facts of the Ricci case. He does not seem to claim that disparate impact analysis is never helpful in uncovering racial animus.
278. See id. ("It might be possible to defend the law by framing it as simply an evidentiary tool used to identify genuine, intentional discrimination- to 'smoke out' as it were, disparate treatment.... Disparate impact is sometimes... a signal of something illicit so a regulator might allow statistical disparities to play some role in the evidentiary process." (citations omitted)). Others have claimed that disparate impact evidence is problematic in other ways.
279. See, e.g., Michael Selmi, Was the Disparate Impact Theory a Mistake?, 53 UCLA L. REV. 701 (2006) (arguing that the theory was created to deal with past instances of discrimination, not as part of a coherent theory of equality, and that empirically it has been of limited success only in the area of challenging employer-written tests).
280. An expansion would include applying impact theory to constitutional claims, which was rejected in Washington v. Davis, 426 U.S. 229 (1976).
281. Greater refinement of impact theory might also be helpful in evaluating employer defenses in impact cases. See, e.g., Ian Ayres, Market Power and Inequality: A Competitive Conduct Standard for Assessing When Disparate Impacts Are Unjustified, 95 CAL. L. REV. 669 (2007) (asserting that business necessity in impact cases should turn on whether the employer engaged in pro- or anti-competitive practices).
282. Ignoring the disparate effects of policies on people of color may not be proof of racial animus, but perhaps it should still be regarded as an ill-advised form of "racially selective sympathy and indifference.'' Paul Brest The Supreme Court, 1975 Term-Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 7-8 (1976) (defining the phrase as "the unconscious failure to extend to a minority the same recognition of humanity... given as a matter of course to one's own group").
283. See McCleskey v. Kemp, 481 U.S. 279, 292 (1987);
284. Davis, 426 U.S. at 245.
285. See McCleskey, 481 U.S. at 308.
286. See supra note 111;
287. Anthony G. Greenwald & Linda Hamilton Krieger, Symposium on Behavioral Realism: Implicit Bias: Scientific Foundations, 94 CAL. L. REV. 945 (2006) (discussing the results of tests of implicit association bias).
288. For a discussion of the use of social science evidence in Brown, see Malik Edwards, Footnote Eleven for the New Millennium: Ecological Perspective Arguments in Support of Compelling Interest, 31 SEATTLE U. L. REV. 891, 898-902 (2008).
289. Remarkably, the Clark doll studies used in Brown were substantially recreated by a high school student in 2007, with results suggesting the self-esteem of black children is still deeply scarred by messages of racial inferiority.
290. See Video: A Girl Like Me (2005), available at http://video.google.com/ videoplay?docid=1091431409617440489#.
291. See supra notes 30-32, 35-36, 114 and accompanying text (discussing the limited affirmative action that remains after the decisions in Grutter, Gratz, and Parents Involved).
292. See infra notes 163-165 and accompanying text (discussing the demise of workplace affirmative action in the Croson and Adarand cases).
293. See supra note 30 and accompanying text.
294. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 723 (2007)
295. (quoting Grutier v. Bollinger, 539 U.S. 306, 330 (2003)).
296. See supra note 30 and accompanying text (Chief Justice Roberts stating in Parents Involved that to end racial discrimination the state must stop considering race);
297. infra note 161 and accompanying text (Justice Scalia suggesting in his concurrence in Adarand that there is no benign consideration of race and that the U.S. government should recognize one race- the "American" race).
298. Satisfying the narrowly tailored prong of strict scrutiny already requires the state to prove that there was no race-neutral alternative to the race-conscious method it employed. See Kenneth L. Marcus, Diversity and Race-Neutrality, 103 Nw. U. L. REV. COLLOQUY 163 (2008) (discussing the institutionalization of the race-neutral query in the Wygant, Grutier, Adarand and Parents Involved cases).
299. It would be quite easy for the Court to use this criterion to reject race-conscious policies as there will always be some race-neutral means, however impractical or ineffective they may be. This is certainly true in the higher education context. See id. at 168-70 (noting that to preserve diversity where race-neutral alternatives (RNAs) are truly required, schools would need to articulate "specific, demonstrable educational benefits" of diversity and demonstrate that "race-conscious programs achieve those benefits more effectively than RNAs do");
300. RICHARD THOMPSON FORD, THE RACE CARD 249-55 (2008) (discussing the precariousness of the diversity rationale).
301. Grutter, 539 U.S. at 339.
302. -163 U.S. 537, 559 (1896) (Harlan, J., dissenting). Importantly, Justice Harlan's vision of colorblindness did not ignore the reality of racial differences. Indeed, in the text preceding this famous language, he explicitly states: The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.
303. Id.
304. Dr. Martin Luther King, Jr., Address at the March on Washington: I Have A Dream (Aug. 28, 1963).
305. President John F. Kennedy, Radio and Television Report to the American People on Civil Rights (June 11, 1963).
306. See Haney López, supra note 5 ("Colorblindness is a form of racial jujitsu: co-opting the moral force of the civil rights movement it uses that power to attack racial remediation and simultaneously to defend structural racism.");
307. Harris, supra note 11, at 1926 ("Yet oddly enough, the language of 'colorblindness'-once a ringing call for equality-is now seen in many progressive quarters as code language for the perpetuation of racial inequality.");
308. see also BONILLA-SILVA, supra note 123, at 3 (asserting that colorblindness is just another form of racist disposition: "Compared to Jim Crow racism, the ideology of color blindness seems like 'racism lite.' Instead of relying on name calling ... color-blind racism otherizes softly ....");
309. COSE, supra note 110, at 179-190 (discussing how many use beliefs about the decline of overt racism as a proxy for the idea that race no longer matters).
310. By contrast Sumi Cho describes post-race as both consistent with and different from colorblindness.
311. See Cho, supra note 4, at 1597-1598 ("[T]he ideology of colorblindness shares many features and objectives with the ideology of post-racialism ... post-racialism is yet distinct as a descriptive matter, in that it signals a racially transcendent event that authorizes the retreat from race. Colorblindness, in comparison, offers a largely normative claim for a retreat from race that is aspirational in nature.").
312. Cheryl I. Harris & Devon W. Carbado, Loot or Find: Fact or Frame?, in AFTER THE STORM: BLACK INTELLECTUALS EXPLORE THE MEANING OF HURRICANE KATRINA 87, 91 (David Dante Troutt ed., 2006) ("Color blindness is a kind of metaframe that comprises ... interwoven racial scripts: (1) because of Brown v. Board of Education and the civil rights reforms it inaugurated, racism is by and large a thing of the past....").
313. Such a claim prevents discrimination from being understood as structural. See id. ("[W]hen racism does rear its ugly head, it is the product of misguided and irrational behavior on the part of self-declared racial bigots, who are few and far between....").
314. In the colorblind and post-racial world, all racial classifications by the State are immediately suspect and presumptively invalid. See id. ("[R]acial consciousness- whether in the form of affirmative action or Jim Crow-like racism- should be treated with suspicion....").
315. Washington v. Davis, 426 U.S. 229, 239-243 (1976).
316. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 307 (1978);
317. see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (holding that the goal of alleviating the effects of societal discrimination by providing minority students with minority role models was insufficient justification for using race in determining teacher layoffs).
318. -488 U.S. 469, 505 (1989).
319. Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 239 (1995) (Scalia, J., concurring).
320. Id. at 240 (Thomas, J., concurring) (citation omitted) (internal quotation marks omitted).
321. See LESLEY A. JACOBS, PURSUING EQUAL OPPORTUNITIES: THE THEORY AND PRACTICE OF EGALITARIAN JUSTICE 74 (2004) ("An egalitarian society must take responsibility for its particular design of advantages and disadvantages and the respects in which these track perceived natural differences ....");
322. CORNEL WEST, RACE MATTERS 64 (1993) ("Visionary progressives always push for substantive redistributive measures that make opportunities available to the have-nots and have-too-littles....").
323. See Brest supra note 141, at 48-49 (discussing the theories of Owen Fiss, John Rawls and others which proclaim the moral permissibility of resource redistribution to racial and ethnic groups that are "substantially worse off than others" without regard to the cause of the disadvantage).
324. Paul Brest & Miranda Oshige, Affirmative Action for Whom?, 47 STAN. L. REV. 855, 867 (1995).
325. See, e.g.. BROOKS, supra note 54, at 24-27 (discussing what the author describes as the traditionalist view of wealth disparity, which claims that resource disparity results from internal flaws of minority group members); Harris & Carbado, supra note 158, at 92 (discussing how colorblindness constructs racial disadvantage: "[W]ere black people to engage in normatively appropriate cultural practices- work hard, attend school, avoid drugs, resist crime-they would transcend their current social status and become part of the truly advantaged.").
326. See Richard Wolf & Susan Page, Obama Battles the Chatter: As Town Hall Meetings Turn Ugly, He Fights Back, USA TODAY, Aug. 8, 2009, at 1A.
327. See CHRISTOPHER J. METZLER, THE CONSTRUCTION AND REARTICULATION OF RACE IN A "POSTRACIAL AMERICA" 6 (2008) ("'Post-racial' is a moniker that represents an articulated vision of race steeped in rigid ideology, constrained by denial of historical realities and undermined by a need to move forward without acknowledging racism, exclusion, and oppression as continuing violations that impact all Americans, including Whites.").
328. -539 U.S. 306 (2003).
329. Trina Jones, The Diversity Rationale: A Problematic Solution, 1 STAN. J. C.R. & C.L. 171, 174-175 (2005).
330. Kennedy, supra note 155.
331. -438 U.S. 265, 395-396 (1978) (Marshall, J., dissenting and concurring).
332. Id. at 272.
333. -42 U.S.C. § 2000(a) (2006).
334. -347 U.S. 843 (1954).
335. BUREAU OF LABOR STATISTICS, supra note 98, at 209-211
336. See supra notes 75-86 and accompanying text.
337. See supra notes 98-99 and accompanying text.
338. See supra notes 100-101 and accompanying text.
339. See supra notes 57-61 and accompanying text.
340. See supra notes 87-93 and accompanying text.
341. See supra notes 55, 169 and accompanying text.
342. See supra notes 57, 75 and accompanying text.
343. See supra notes 88-90 and accompanying text.
344. See supra notes 58, 75 and accompanying text.
345. This was essentially the point of Justice Marshall's impassioned dissent in Bakke. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 387 (1978) (Marshall, J., dissenting and concurring).
346. Id. at 407 (Blackmun, J., dissenting and concurring).