The declining significance of presidential races?

Law and Contemporary Problems

Volumn 72, Issue 4, 2009, Pages 89-107

  Onwuachi Willig, Angela ^a   James, Osamudia ^b  

^a UNIVERSITY OF IOWA   (United States)

^b UNIVERSITY OF MIAMI   (United States)

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[No Author keywords available]

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EID: 77954248615     PISSN: 00239186     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (116)

1. WILLIAM JULIUS WILSON, THE DECLINING SIGNIFICANCE OF RACE: BLACKS AND CHANGING AMERICAN INSTITUTIONS x, 144 (2d ed. 1980).
2. Throughout this article, the words "Black" and "White" are capitalized when used as nouns to describe a racialized group; however, these terms are not capitalized when used as adjectives. Also, the term "Blacks" is used instead of the term "African Americans" because the term "Blacks" is more inclusive.
3. See Why "Black" and Not "African-American," 3 J. OF BLACKS IN HIGHER EDUC. 18, 18-19 (1994).
4. Additionally, "[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.".
5. Alex M. Johnson, Jr., Defending the Use of Quotas in Affirmative Action: Attacking Racism in the Nineties, 1992 U. ILL. L. REV. 1043, 1044 n.4 (1992).
6. see also id. at 152 ("The recent mobility pattern of blacks lends strong support to the view that economic class is clearly more important than race in predetermining job placement and occupational mobility.").
7. PEW RES. CENTER, OPTIMISM ABOUT BLACK PROGRESS DECLINES: BLACKS SEE GROWING VALUES GAP BETWEEN POOR AND MIDDLE CLASS 1 (2007), available at http://pewsocialtrends.org/pubs/700/black-public-opinion.
8. Angela Onwuachi-Willig, The Admission of Legacy Blacks, 60 VAND. L. REV. 1141, 1186-90 (2007) (detailing stigmas that attach to blackness regardless of class and ancestral heritage).
9. Deborah C. Malamud, Affirmative Action, Diversity, and the Black Middle Class, 68 U. COLO. L. REV. 939, 967-88 (1997) (describing the discrimination and disadvantage that even middle-class Blacks face in housing, work, and education).
10. Ian Ayres, Fair Driving: Gender and Race Discrimination in Retail Car Negotiations, 104 HARV. L. REV. 817, 825, 827-57 (1991) (finding and analyzing discrimination against black testers in car negotiations, even though they were professionals and gave addresses for upper class neighborhoods).
11. cf. Richard Delgado, Ten Arguments Against Affirmative Action-How Valid?, 50 ALA. L. REV. 135, 140-41 (1998) (maintaining that race is more indicative of disadvantage than class).
12. see generally ELLIS COSE, THE RAGE OF A PRIVILEGED CLASS (1993) (describing the pervasive discrimination faced by middle-class African Americans).
13. Michael Powell, Democrats in Steel Country See Color, and Beyond It, N.Y. TIMES, Oct. 27, 2008, at A1.
14. See infra II.
15. Jim Galloway, Barack and Michelle Obama Are 'Uppity,' Says Representative Westmoreland, ATLANTA J. CONST., Sept. 4, 2008, available at http://www.ajc.com/metro/content/shared-blogs/ajc/politicalinsider/entries/2008/09/04/barack_and_michelle_obama_are.html.
16. See infra III.B. For example, one website advertised sales of "Obama Waffles." The most offensive items from the website have since been removed, but they included a picture of Obama with popping big eyes and thick lips and an image of Obama in cultural Mexican clothing, with a recipe for "Open Border Fiesta Waffles.".
17. Chip Berlet, Bigoted Obama Waffles; Bigoted Values Voter Conference, HUFFINGTON POST, July 15, 2008, available at http://www.huffingtonpost.com/chip-berlet/bigoted-obama-waffles-pac_b_126404.html.
18. see also Ali Frick, 'Obama Waffles' Featuring Racist, Stereotyped Images Sold at Values Voter Summit, THINK PROGRESS, Sept. 13, 2008, available at http://thinkprogress.org/2008/09/13/obama-waffles-featuring-racist-stereotyped-images-sold-at-valuesvoter-summit/.
19. The Huffington Post also reported the following about the waffles: "The recipe card on the Obama Waffles box including ingredients such as goats milk and jalepeno peppers, and advises as a 'Tip: While waiting for these zesty treats to invade your home, why not learn a foreign language.' The 'Recommended Serving' is '4 or more illegal aliens.'" Relying on the false rumor that Obama was a Muslim, not a Christian, the box also featured Obama with a Muslim headwrap, next to an arrow with the words "Point box toward Mecca for tastier waffles." Berlet, supra. Another example included an anti-Obama item that announced: "Use the 'N-Word'-Never.".
20. Jane Caputi, Character Assassinations: Hate Messages in Election 2008 Commercial Paraphernalia, DENV. U. L. REV. 585, 595 (2009) (including numerous other examples of racist images and rhetoric against Obama throughout his campaign).
21. "Other," in this context, means foreign, outside of the norm, not "like us," the "us" in this case being "white and American." Within the United States, being the "other" means being racialized in a world where whiteness is viewed as neutral. As Professor Martha Mahoney has explained, "the idea that noticing race is itself prejudiced rests on a fundamental sense that race involves the inferiority of the 'Other.'".
22. Martha R. Mahoney, Class and Status in American Law, Race, Interest, and the Anti-Transformation Cases, 76 S. CAL. L. REV. 799, 808 & n.35 (2003).
23. see also Marjorie Florestal, Is a Burrito A Sandwich? Exploring Race, Class, and Culture in Contracts, 14 MICH. J. RACE & L. 1, 9 (2008).
24. See, e.g., Christi Parsons, Blue Collar Politics Get Gray Volunteers Appeal to Pocketbooks to Overcome Doubts Over Obama's Race, CHI. TRIB., Oct. 15, 2008, at 6.
25. See text accompanying notes 24-26.
26. Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1713-14 (1993).
27. See Plessy v. Ferguson, 163 U.S. 537, 549 (1896) (affirming the notion that if Plessy had been white, he might have had an action for damages against the company for depriving him of the reputational value of his property as a white man). Professor Harris also notes that, although Brown v. Board of Education overruled Plessy in refusing to acknowledge a right to equality of resources, the Court failed to guarantee that white privilege would be dismantled, thus perpetuating a property interest in whiteness. Harris, supra note 16, at 1750-53.
28. Thomas Ross, The Unbearable Whiteness of Being, in CROSSROADS, DIRECTIONS, AND A NEW CRITICAL RACE THEORY 253 (Francisco Valdes, Jerome McCristal Culp & Angela P. Harris eds., 2002).
29. Loving v. Virginia, 388 U.S. 1 (1967) (striking down Virginia's anti-miscegenation statute designed to preserve white supremacy). Cf. Eggers v. Olson, 231 P. 483 (Okla. 1924) (upholding a statute intended to prohibit marriage between African Americans and any other race).
30. Plessy v. Ferguson, 163 U.S. 537 (1896) (recognizing a property interest in whiteness); Scott v. Georgia, 39 Ga. 321 (Ga. 1869) (declaring marriages between white persons and persons of African descent to be null and void).
31. Camille A. Nelson, Lovin' the Man: Examining the Legal Nexus of Irony, Hypocrisy, and Curiosity, 2007 WIS. L. REV. 543, 561-62.
32. Derrick Bell, Racism as the Ultimate Deception, 86 N.C.L. REV. 621, 623 (2008).
33. see also ANDREW HACKER, TWO NATIONS 217 (1992).
34. W. E. B. DU BOIS, BLACK RECONSTRUCTION IN AMERICA 700-01 (1966).
35. see generally DAVID R. ROEDIGER, THE WAGES OF WHITENESS (2d ed. 2007) (chronicling how and why whiteness has become so important to working-class Whites).
36. Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Anti-Discrimination Law, 101 HARV. L. REV. 1331, 1374 (1988).
37. Derrick Bell, Getting Beyond a Property in Race, 1 WASH. U. J.L. & POL'Y 27, 32 (1999).
38. Derrick Bell, Racism: A Major Source of Property and Wealth Inequality in America, 34 IND. L. REV. 1261, 1269-71 (2001).
39. Exploitation of this tendency still occurs today, as exemplified by Hillary Clinton's election statements suggesting that she was the candidate favored by "hard-working Americans, white Americans.".
40. Bob Herbert, Seeds of Destruction, N.Y. TIMES, May 10, 2008, at A19.
41. Derrick Bell noted that in the 2000 election, the Republican party was supported by enough working and middle-class white voters to ultimately render a Republican victory, despite the party's tendency to favor the privileged with policies that cut funding for social programs, institute tax cuts for the wealthy, repeal the estate tax, and undermine the social security system. Bell, supra note 29, at 1264-66. Working-class and poor white voters nevertheless supported the party because of its seeming commitment to sustaining the privilege of whiteness, and to protecting Whites from incursions by minorities, illustrated, for example, by Republican opposition to affirmative action. Bell, supra note 29, at 1266.
42. Patrick Healy, For Democrats, Questions Over Race and Electability, N.Y. TIMES, Apr. 24, 2008, at A1.
43. Patrick Healy, Clinton Beats Obama Handily in West Virginia, N.Y. TIMES, May 14, 2008, at A1.
44. Frank Rich, Party Like It's 2008, N.Y. TIMES, May 11, 2008, at WK12.
45. see John Harwood, The White Working Class: Forgotten Voters No More, N.Y. TIMES, May 26, 2008, at A12 (arguing that Obama had to come within only ten to twelve percentage points of Senator McCain among working-class white voters to win the presidency).
46. Herbert, supra note 30, at A19 (suggesting that she was the candidate favored by "hard-working Americans, white Americans").
47. Harwood, supra note 37, at A12.
48. Michael Powell, Rural Swath of a Big State Tests Obama, N.Y. TIMES, Aug. 21, 2008, at A1 (noting that voters believed an economic disaster in the region had exacerbated existing racial tensions, and that one in five primary voters surveyed in a poll admitted that race was a factor in his decision).
49. Editorial, The Candidates' Health Plans, N.Y. TIMES, Oct. 28, 2008, at A30.
50. Steven Greenhouse, For Incomes Below $100,000, a Better Tax Break in Obama's Plan, N.Y. TIMES, Oct. 30, 2008, at A14.
51. Id. According to the Census Bureau, the median household income in the United States is $50,233. Id.
52. Elisabeth Bumiller, In Ohio, McCain Is Everywhere Even if Joe the Plumber Isn't, N.Y. TIMES, Oct. 30, 2008, at A19.
53. Larry Rohter, Plumber from Ohio is Thrust into the Spotlight, N.Y. TIMES, Oct. 15, 2009, available at http://www.nytimes.com/2008/10/16/us/politics/16plumber.html.
54. See BarackObama.com, Meet the Candidate, http://www.barackobama.com/about (last visited June 30, 2009).
55. Adam Nagourney et al., Near-Flawless Run is Credited in Victory, N.Y. TIMES, Nov. 5, 2008, at P1.
56. Rick Montgomery & Darryl Levings, Will Long History of Racial Divide Figure in Election? KANSAS CITY STAR (MO), Oct. 7, 2008 (citing a poll finding that twelve percent of both Democrats and Republicans polled in July believed Obama was a Muslim).
57. Powell, supra note 39, at A1 (quoting Mr. Ivan Stickles, a Pennsylvania voter who was interviewed after the primaries and said, "There's this e-mail that he didn't shake hands with the troops.... I don't have the time to check out if it's true, but if it is, it's very offensive.").
58. see also Michael Cooper & Michael Powell, McCain Camp Says Obama Plays 'Race Card,' N.Y. TIMES, Aug. 1, 2008, at A1.
59. Powell, supra note 9, at A1 (quoting Judy Miller, a store owner in Hookstown, West Virginia).
60. For example, McCain made comments, asking "Who is the real Barack Obama?" Adam Nagourney, Campaigns Shift to Attack Mode on Eve of Debate, N.Y. TIMES, Oct. 6, 2008, at A1.
61. The consistent questions about Obama's citizenship and religious background stood in stark contrast with the public's treatment of Sarah Palin on these issues. Although Palin was a virtual unknown in national politics, with no track-record to match either Obama's years in the Senate or his almost two years on the campaign road prior to the general election, we found no similar documents, clips, or blogs that questioned Palin's standing as an American or as a Christian.
62. Powell, supra note 9, at A1 (quoting Olga Permon, a steelworker's widow in Ambridge, Pennsylvania).
63. Jeff Zeleny et al., Obama Remarks Called 'Out of Touch,' N.Y. TIMES, Apr. 12, 2008, at A15.
64. In describing white working-class voters who fell through the cracks during the Bush and Clinton administrations, Obama noted that "it's not surprising then that they get bitter, they cling to guns or religion or antipathy to people who aren't like them or anti-immigrant sentiment or anti-trade sentiment as a way to explain their frustrations." Id.
65. Michael Powell & Jeff Zeleny, Tagged as Elitist, Obama Shifts Campaign From High-Flown to Folksy, N.Y. TIMES, May 6, 2008, at A23.
66. Harwood, supra note 37, at A12 (attributing resistance among blue-collar workers to "distance those voters felt from the liberal, Ivy League-educated candidate").
67. 58. Powell & Zeleny, supra note 57, at A23.
68. U.S. Dep't of State, Biography of Hillary Rodham Clinton, http://www.state.gov/r/pa/ei/biog/115321.htm (last visited June 30, 2009).
69. Powell & Zeleny, supra note 57, at A23. Lamenting the elitist caricatures into which he and his wife were turned, Obama noted, "[I]f you look back over the last two decades[,]... [w]e struggled with paying student loans, we tried to figure out how to make sure that we got adequate day care, I filled up my own gas tanks." Id.
70. For example, Hillary Clinton once proclaimed during a rally in Philadelphia, "Pennsylvanians don't need a president who looks down on them; they need a president who stands up for them, who fights for them, who works hard for your futures, your jobs, your families." Zeleny et al., supra note 56, at A15. Similarly, Steve Schmidt, a senior advisor to McCain, asserted, "It shows an elitism and condescension toward hard-working Americans that is nothing short of breathtaking." Id.
71. "In the history of African-American politics in this country there has always been some tension between speaking in universal terms and speaking in very race-specific terms about the plight of the African-American community.... By virtue of my background, you know, I am more likely to speak in universal terms." Juan Williams, Obama's Color Line, N.Y. Times, Nov. 30, 2007, at A23.
72. Alec MacGillis & Perry Bacon, Jr., Obama Rises in New Era of Black Politicians, WASH. POST, July 28, 2007, at A1. In response to questions regarding his "black authenticity," Obama referred to his difficulty hailing a cab in New York City and explained that he faces the same obstacles as any black man in the United States. Id.
73. BarackObama.com, Meet the Candidate, http://www.barackobama.com/about (last visited June 30, 2009).
74. Jim Rutenberg, The Ad Campaign: An Obama Infomercial, Big, Glossy and Almost Unavoidable, N.Y. TIMES, Oct. 29, 2008, available at http://thecaucus.blogs.nytimes.com/2008/10/29/the-ad-campaign-an-obama-infomercial-big-glossy-and-almost-unavoidable/.
75. Sasha Issenberg, In Ind., Obama Turns Focus on Midwestern Roots, BOSTON GLOBE, May 5, 2008, available at http://www.boston.com/news/nation/articles/2008/05/05/in_ind_obama_turns_focus_on_midwestern_roots/.
76. Earl Ofari Hutchinson, The Case For... John Edwards, DAILY NEWS OF L.A., Jan. 27, 2008, at V3.
77. See Senator Barack Obama, Acceptance Speech at the Democratic Convention: The American Promise (Aug. 28, 2008), available at http://www.barackobama.com/2008/08/28/remarks_of_senator_barack_obam_108.php.
78. For the men and women of Reverend Wright's generation, the memories of humiliation and doubt and fear have not gone away; nor has the anger and the bitterness of those years.... That anger is not always productive; indeed, all too often it distracts attention from solving real problems; it keeps us from squarely facing our own complicity in our condition, and prevents the African-American community from forging the alliances it needs to bring about real change. But the anger is real; it is powerful; and to simply wish it away, to condemn it without understanding its roots, only serves to widen the chasm of misunderstanding that exists between the races.... But I have asserted a firm conviction-a conviction rooted in my faith in God and my faith in the American people-that working together we can move beyond some of our old racial wounds, and that in fact we have no choice if we are to continue on the path of a more perfect union. For the African-American community, that path means embracing the burdens of our past without becoming victims of our past.
79. Senator Barack Obama, Public Address: A More Perfect Union (Mar. 18, 2008), available at http://www.barackobama.com/2008/03/18/remarks_of_senator_barack_obam_53.php.
80. The campaign strategy was to essentially avoid discussions about race, deciding instead to define Obama's candidacy in ways that transcended race. Nagourney et al., supra note 48, at P1.
81. For example, Cindy McCain released "a two-page Form 1040 from her 2006 return," which "listed $4.5 million in income from S corporations (such as Hensley), partnerships, rental real estate and other categories; capital gains of $743,000; and dividends of $283,000." David V. Halbfinger, McCain's Wealth Difficult to Track, SEATTLE TIMES, Aug. 23, 2008, available at http://seattletimes.nwsource.com/html/nationworld/2008133552_mcwealth23.html. Cindy McCain also owns 10 homes, including the "condominium in the Crystal City section of Arlington; two in an oceanfront tower in Coronado; her father's condo in the La Jolla section of San Diego; a $4.7 million condo atop one of Phoenix's newest luxury towers; another unit on its fourth floor; and a $700,000 town house nearby." Id.
82. See Verna L. Williams, The First (Black) Lady, 86 DENV. U. L. REV. 833, 833-34 (2009).
83. See Michelle Obama Takes Heat for Saying "I'm Proud of My Country" for the First Time, FoxNews.com, Feb. 19, 2008, http://www.foxnews.com/story/0,2933,331288,00.html.
84. see also Gregory S. Parks & Quinetta M. Roberson, Michelle Obama: A Contemporary Analysis of Race and Gender Discrimination Through the Lens of Title VII, 20 HASTINGS WOMEN'S L.J. 3, 5-6 (2008) (discussing how Michelle Obama was characterized in the public during the campaign). Michelle Obama actually included the adverb "really" in front of "proud" during her speech.
85. See id. Alessandra Stanley, Michelle Obama Shows Her Warmer Side, N.Y. TIMES, June 19, 2008, at A19, available at http://www.nytimes.com/2008/06/19/us/politics/19watch.html (titled "Michelle Obama Shows Her Warmer Side on 'The View'").
86. See Mike Allen, New Yorker Obama Cover Sparks Uproar, CBSNews.com, July 13, 2008, http://www.cbsnews.com/stories/2008/07/14/politics/politico/main4257077.shtml.
87. Alex Koppelman, Fox News Calls Michelle Obama "Obama's Baby Mama," Salon.com, June 12, 2008, http://www.salon.com/politics/war_room/2008/06/11/fox_obama/print.html. Readers can also see the picture at http://www.gawker.com/assets/images/gawker/2008/06/obamaBabyMama.jpg (last visited Feb. 19, 2009).
88. Though Michelle Obama once referred to Barack Obama as her "baby's daddy," Delilah Boyd, Michelle Obama: Barack Is "My Baby's Daddy," June 16, 2008, http://ascrivenerslament.blogspot.com/2008/06/michelle-obama-barack-is-my-babys-daddy.html, that reference was clearly a joke. The question remains: When serious news channels-which are not usually instruments known for making jokes-are willing to insult a woman of Michelle Obama's stature in such a way, what does it mean for all black and brown women?.
89. Baby Mama, Urban Dictionary, http://www.urbandictionary.com/define.php?term= baby+mama (last visited Feb. 19, 2009).
90. See Imani Perry, Do You Really Love New York?: Exposing the Troubling Relationship Between Popular Racial Imagery and Social Policy in the 21st Century, 10 BERKELEY J. AFR.-AM. L. & POL'Y 92, 95-96 (2008) (discussing the stereotype of black women portrayed on The Maury Povich Show).
91. cf. Abbe Smith, The Burdens of Representing the Accused in an Age of Harsh Punishment, 18 NOTRE DAME J.L. ETHICS & PUB. POL'Y 451, 454 (2004) (using the term when explaining why "teenage girls in the 'hood'" would be willing to "share the few guys who are around").
92. Dorothy E. Roberts, Racism and Patriarchy in the Meaning of Motherhood, 1 AM. U. J. GENDER & L. 1, 6, 26 (1993) ("Patriarchy does not treat Black and white motherhood identically. In America, the image of the Black mother has always diverged from, and often contradicted, the image of the white mother.... Society penalizes Black single mothers not only because they depart from the norm of marriage as a prerequisite to pregnancy, but also because they represent rebellious Black culture.").
93. Id. at 14 ("One of the most extreme forms of devaluation of Black motherhood is the sterilization abuse of Black women. The disproportionate sterilization of Black women enforces society's determination that we do not deserve to be mothers.").
94. See generally Angela Onwuachi-Willig, The Return of the Ring: Welfare Reform's Marriage Cure as the Revival of Post-Bellum Control, 93 CAL. L. REV. 1647 (2005).
95. David Kelly, Newsletter's Obama Illustration Denounced; Leader of GOP Club Denies Racist Intent in Use of Stereotypes., L.A. TIMES, Oct. 17, 2008, at 1, available at http://articles.latimes.com/2008/oct/17/local/me-foodstamps17 (last visited Feb. 19, 2009) (titled "Obama's Photo in GOP Club Newsletter Sparks Outrage").
96. Id. Ironically, the "Obama Bucks" image appeared first a liberal website "Please God No," which is "a satirical website devoted to skewering the Republican right." Obama Bucks Originated on a Liberal Website, L.A. TIMES, Oct. 20, 2008, at http://images.google.com/imgres?imgurl=http://latimesblogs.latimes.com/photos/uncategorized/2008/10/20/satire.jpg&imgrefurl=http://latimesblogs.lati mes.com/lanow/2008/10/obama-bucks-ori.html&usg=__nmUR0vXfGtrnIv0Reon-3WwbJ0I=&h=350&w=800&sz=89&hl=en&start=3&itbs=1&tbnid=quvySbWarRZBLM:&tbnh=63&tbnw=143&prev=/images%3Fq%3Dobama%2Bbucks%26hl%3Den%26gbv%3D2%26tbs%3Disch:1. The originator of the image found it amusing to "have the very Repuiblicans he mocks misunderstand the satire and go up in flames for his work." Id.
97. Obama Bucks and Racist Cartoon, Zimbio.com, Oct. 18, 2008, http://www.zimbio.com/Chaffey+Community+Republican+Women,+Federated/articles/7/Obama+Bucks+and+Racist+Cartoon.
98. See Barbara A. Flagg, Fashioning a Title VII Remedy for Transparently White Decisionmaking, 104 YALE L.J. 2009, 2012-13 (1995) (discussing how Whites tend to view decisions of other Whites as being race neutral).
99. 347 U.S. 483 (1954).
100. See Derrick Bell, Diversity's Distractions, 103 COLUM. L. REV. 1622, 1625-26 (2003) (arguing Justice O'Connor accepted Michigan Law School's diversity-oriented admission policy in Grutter v. Bollinger, 539 U.S. 306 (2003), because it benefited nonminorities).
101. See generally Derrick Bell, Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980).
102. See, e.g., Obama's Inroads into Rival's Turf, N.Z. HERALD, Oct. 18, 2008, at A18 (asserting that Obama's gain among white voters with little education indicates that financial concerns are trumping racial concerns).
103. Tom Baldwin, Obama is Now the Plumber's Mate as Jobs Go Down the Tubes; US Elections 08, THE TIMES (UK), Oct. 17, 2008, at Overseas News 44 (discussing how some working-class voters who backed Bush in 2004 decided to support Obama as a result of the economic crisis).
104. Christi Parsons, Blue Collar Politics Get Gray; Volunteers Appeal to Pocketbooks to Overcome Doubts Over Obama's Race, CHI. TRIB., Oct. 15, 2008, at 6. 91. Parsons, supra note 90, at 6.
105. Thomas Fitzgerald, Polls Give Obama Clear Lead in PA, PHILA. INQUIRER, Oct. 12, 2008, at A1.
106. Cathleen Decker, Campaign '08: Voters Weigh In/The Times/Bloomberg Poll Obama Makes Broad Gains, L.A. TIMES, Oct. 15, 2008, at Main News 1.
107. Between a failing economy, the collapse of the mortgage industry, and an unpopular war in Iraq, Republican control of the White House for the previous eight years was the obvious scapegoat for the country's ills and should have rendered a Democratic win an all-but-sure thing.
108. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007) (striking down controlled-choice integration plans that assigned students to public schools based on race).
109. See, e.g., Eboni S. Nelson, Parents Involved & Meredith: A Prediction Regarding the (Un)constitutionality of Race-Conscious Student Assignment Plans, 84 DENV. U. L. REV. 293 (2006) (urging school officials, in light of the Supreme Court's desegregation jurisprudence, to consider raceneutral methods to achieve diversity).
110. Jonathan D. Glater & Alan Finder, Diversity Plans Based on Income Leave Some Schools Segregated, N.Y. TIMES, July 15, 2007, at A24.
111. Claire Smrekar, Commentary, A Practical End to Racial Diversity in Schools, TCHRS C. REC., July 16, 2007, http://www.tcrecord.org/PrintContent.asp?ContentId=14549.
112. See, for example, such frameworks outlined by Professors Devon Carbado and Mitu Gulati in their work about the pressures of performance identity for racialized peoples.
113. Devon W. Carbado & Mitu Gulati, The Fifth Black Woman, 11 J. CONTEMP. LEGAL ISSUES 701, 718-20 (2001) (arguing discrimination based on an individual's performance of racial identity violates Title VII).
114. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1262-63 (2004) ("Racial conduct discrimination derives, not simply from the fact that an employee is, for example, phenotypically Asian American... but also from how she performs her Asian-American identity in the workplace...").
115. See also Carbado and Gulati's more recent work with Professor Catherine Fisk on discrimination that occurs after inclusion in a workplace.
116. See Devon Carbado, Catherine Fisk, & Mitu Gulati, After Inclusion, Duke Law School Public Law & Legal Theory Paper No. 210 (May 29, 2008), available at SSRN: http://ssrn.com/abstract=1138795.