Brilliant disguise: An empirical analysis of a social experiment banning affirmative action

Indiana Law Journal

Volumn 85, Issue 4, 2010, Pages 1197-1254

  Bowen, Deirdre M ^a  

^a SEATTLE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77955006033     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (284)

1. Grutter v. Bollinger, 539 U.S. 306, 354 n.3 (2003) (Thomas, J., concurring in part and dissenting in part).
2. Id. at 372 (Thomas, J., concurring in part and dissenting in part) (footnote omitted).
3. In this Article, I concur with Tim Wise's assessment of "white": I am referring to those persons... who are able, by virtue of skin color or perhaps natural origin and cultures, to be perceived as "white," as members of the dominant group. I do not consider the white race to be a real thing, in biological terms.... But the white race certainly has meaning in social terms, and it is in that sense that I use the concept here. TIM WISE, WHITE LIKE ME: REFLECTIONS ON RACE FROM A PRIVILEGED SON, at ix (2005).
4. I suspect that some anti-affirmative action activists would assert that racism is no longer prevalent in the same way it may have been at the time President Kennedy developed affirmative action policies. Many of these activists would be further bolstered by the election of our first black president as the strongest evidence yet that affirmative action is outdated.
5. Justice Thomas is a great fan of this argument. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 243 (1995) (Thomas, J., concurring);
6. see also Terry Eastland, The Case Against Affirmative Action, 34 WM. & MARY L. REV. 33, 41-42 (1992).
7. But see Angela Onwuachi-Willig, Emily Houh & Mary Campbell, Cracking the Egg: Which Came First - Stigma or Affirmative Action?, 96 CAL. L. REV. 1299, 1325-26 (2008) (analyzing data from seven law schools demonstrating no difference in internal and external stigma between students attending schools with affirmative action and those attending schools without it).
8. See THOMAS SOWELL, CIVIL RIGHTS: RHETORIC OR REALITY? 118-19 (1984).
9. Grutter v. Bollinger, 539 U.S. 306, 330 (2003) (discussing the testimony of Erica Munzel). "Critical mass" in an educational context refers to the concentration of a "meaningful" number of underrepresented students necessary to create an environment in which such students can fully engage in the classroom as individuals rather than feeling like they have to be a spokesperson for their race or defy stereotypes. Id.;
10. see also Adeno Addis, The Concept of Critical Mass in Legal Discourse, 29 CARDOZO L. REV. 97, 97-100 (2007). The Supreme Court used this concept in a number of cases prior to Grutter, but it was the University of Michigan Law School faculty committee's use of the term to rationalize its race-based admission policies that captured the imagination of the Justices and academics alike. Id. The Law School used empirical studies to demonstrate the importance of critical mass.
11. See ANGELON. ANCHETA, THE CIVIL RIGHTS PROJECT, HARVARD UNIV., REVISITING BAKKE AND DIVERSITY-BASED ADMISSIONS: CONSTITUTIONAL LAW, SOCIAL SCIENCE RESEARCH, AND THE UNIVERSITY OF MICHIGAN AFFIRMATIVE ACTION CASES (2003), available at http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content-storage- 01/0000019b/80/la/e5/39.pdf;
12. Roxane Harvey Gudeman, Faculty Experience with Diversity: A Case Study of Macalester College, in DIVERSITY CHALLENGED: EVIDENCE ON THE IMPACT OF AFFIRMATIVE ACTION 251-76 (Gary Orfield & Michal Kurlaender eds., 2001).
13. 347 U.S. 483 (1954).
14. President Kennedy used the term affirmative action in an executive order designed to promote the integration of minorities in the workforce. Exec. Order No. 10, 925, 26 Fed. Reg. 1977 (Mar. 8, 1961). He stated that federally funded contractors should take affirmative action to hire and treat all employees the same regardless of race. Id. The concept received further attention in a speech given by President Johnson at Howard University, in which he pointed out that it was not enough to simply state that an oppressed racial group could now compete equally. President Lyndon B. Johnson, Commencement Address at Howard University: To Fulfill These Rights (June 4, 1965), available at http://www.lbjlib.utexas.edu/johnson/archives.hom/speeches.hom/650604.asp.
15. In 1964, Congress enacted Title VII of the Civil Rights Act, which banned employment discrimination and created the Equal Employment Opportunity Commission. Civil Rights Act of 1964, Pub. L. No. 88-352, tit. VII, 78 Stat. 241, 253-66 (codified as amended at 42 U.S.C. § 2000e (2006));
16. see also Nat'l Archives, Teaching with Documents: The Civil Rights Act of 1964 and the Equal Employment Opportunity Commission, http://www.archives.gov/ education/lessons/civil-rights-act/. This agency became central in enforcing affirmative action policies in employment cases. Nat'l Archives, supra. Congress enlarged the scope of Title VII with the Equal Opportunity Act of 1972 to include colleges and universities.
17. See generally Paul Finkelman, The Color of Law, 87 Nw. U. L. REV. 937 (1993)
18. (reviewing ANDREW KULL, THE COLORBLIND CONSTITUTION (1992));
19. Paul Finkelman, The Rise of the New Racism, 15 YALE L. & POL'Y REV. 245 (1996).
20. The University of Michigan used an index with points added for various academic and nonacademic factors. Statement by University of Michigan President Mary Sue Coleman to U-M Board of Regents (Jan. 16, 2003), http://www.ns.umich. edu/Releases/2003/Jan03/r0l1603a.html. Racial minorities could receive a +20 score under this scheme. University of Michigan Admissions Lawsuits, Q&A re University of Michigan Former Admissions Policies (Feb. 19, 2003), http://www.vpcomm.umich.edu/admissions/archivedocs/q&a.html.
21. The University of Texas School of Law applied lower admissions standards to underrepresented minorities so that it could achieve its admissions goal of enrolling a certain percentage of students from particular minority groups. HOUSE RESEARCH ORG., TEXAS HOUSE OF REPRESENTATIVES, FOCUS REPORT: SHOULD TEXAS CHANGE THE TOP 10 PERCENT LAW? 3 (2005), available at http://www.hro.house. state.tx.us/focus/topten79-7.pdf.
22. Other schools use a holistic approach in which race is one amongst many factors the admissions committee considers in deciding whether to accept a student. See Lisa W. Foderaro, The Whole Applicant, N. Y. TIMES, Nov. 1, 2009, at ED25. Finally, percent plans are also in use.
23. See James C. McKinley Jr., Texas Vote Curbs a College Admission Guarantee Meant to Bolster Diversity, N.Y. TIMES, May 31, 2009, at A25 (describing a former Texas plan to give students in the top ten percent of their high school classes automatic admission to state universities). Florida, for example, used a 'Talented 20" program in which the top twenty percent of each high school's graduates were guaranteed admission to Florida's state schools.
24. Blair S. Walker, Two States, Two Stories, DIVERSE: ISSUES HIGHER EDUC, Mar. 22, 2007, at 15, 15.
25. See, e.g., Susan Sturm & Lani Guinier, The Future of Affirmative Action, in WHO'S QUALIFIED? 3 (Lani Guinier & Susan Sturm eds., 2001);
26. Ian Ayres & Richard Brooks, Does Affirmative Action Reduce the Number of Black Lawyers?, 57 STAN. L. REV. 1807 (2005);
27. David L. Chambers, Timothy T. Clydesdale, William C. Kidder & Richard O. Lempert, The Real Impact of Eliminating Affirmative Action in American Law Schools, 57 STAN. L. REV. 1855 (2005);
28. Sumi K. Cho, Multiple Consciousness and the Diversity Dilemma, 68 U. COLO. L. REV. 1035 (1997);
29. Richard Delgado, 1998 Hugo L. Black Lecture: Ten Arguments Against Affirmative Action - How Valid?, 50 ALA. L. REV. 135 (1998);
30. Eastland, supra note 5;
31. Kevin R. Johnson & Angela Onwuachi-Willig, Cry Me a River: The Limits of "A Systematic Analysis of Affirmative Action in American Law Schools," 7 AFR.-AM. L. & POL'Y REP. 1 (2005);
32. D. Marvin Jones, Plessy 's Ghost: Grutter, Seattle and the Quiet Reversal of Brown, 35 PEPP. L. REV. 583 (2008);
33. Richard H. Sander, A Systematic Analysis of Affirmative Action in American Law Schools, 57 STAN. L. REV. 367 (2004);
34. Lauren Arms, Comment, It's Not All Black and White: Race-Based Admissions Purport to Achieve a Critical Mass of Diversity, but in Reality Merely Mask a Pre-Determined Quota of the Ideal Integrated Society, 49 S. TEX. L. REV. 205 (2007).
35. See, e.g., Khaled Ali Beydoun, Without Color of Law: The Losing Race Against Colorblindness in Michigan, 12 MICH. J. RACE & L. 465 (2007).
36. See, e.g., Antonin Scalia, Commentary, The Disease as Cure: "In Order to Get Beyond Racism, We Must First Take Account of Race," 1979 WASH. U. L.Q. 147;
37. Timothy Goldsmith & Morris B. Hoffman, Bench Versus Trench: A Judge and an Academic Debate the Affirmative Action Cases (Grater Inst. Working Papers on Law, Econ. & Evolutionary Biology, vol. 3, art. 1, 2004), available at http://www.bepress.com/giwp/default/vol3/issl/artl/.
38. See, e.g., andré douglas pond cummings, Grutter v. Bollinger, Clarence Thomas, Affirmative Action and the Treachery of Originalism: "The Sun Don't Shine Here in This Part of Town,"21 HARV.BLACKLETTER L.J. 1, 2-9, nn.5 & 19(2005).
39. 438 U.S. 265 (1978).
40. In 1996, Californians voted to ban the use of affirmative action in admissions decisions at all state institutions of higher education in Proposition 209. See CAL. CONST, art. I, § 31. Washington State voters followed suit with Initiative 200 in 1998. See WASH. REV. CODE ANN. § 49.60.400 (West 2008). Finally, Michigan voters decided to adopt the same policy with Proposition 2 in 2006.
41. See MICH. CONST, art. I, § 26. "There was a possibility that, following the November 2008 elections, more than 30 percent of Americans would live in states where racial preferences in public higher education had been outlawed." THOMAS J. ESPENSHADE & ALEXANDRIA WALTON RADFORD, NO LONGER SEPARATE, NOT YET EQUAL: RACE AND CLASS IN ELITE COLLEGE ADMISSION AND CAMPUS LIFE 5 (2009).
42. See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003);
43. Gratz v. Bollinger, 539 U.S. 244 (2003);
44. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996);
45. Smith v. Univ. of Wash. Law Sch., 2 F. Supp. 2d 1324 (W.D. Wash. 1998).
46. See WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS (1998) (detailing the long-term benefits of race-based affirmative action in higher-education admissions);
47. Kenneth R. Davis, Wheel of Fortune: A Critique of the "Manifest Imbalance" Requirement for Race-Conscious Affirmative Action Under Title VII, 43 GA. L. REV. 993 (2009);
48. Kimberly West-Faulcon, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. PA. L. REV. 1075 (2009);
49. Joshua M. Levine, Comment, Stigma's Opening: Grutter's Diversity Interest (s) and the New Calculus for Affirmative Action in Higher Education, 94 CAL. L. REV. 457, 461-75 (2006) (examining the benefits of diversity in higher education for society and educational institutions alike). Summarizing a wealth of empirical studies, Terry Anderson concludes that affirmative action has resulted in educational benefits to minorities, more minority-owned businesses, and, not surprisingly, higher rates of minority employment among institutions practicing affirmative action.
50. See TERRY H. ANDERSON, THE PURSUIT OF FAIRNESS: A HISTORY OF AFFIRMATIVE ACTION 278-80 (2004).
51. See, e.g., TERRY EASTLAND, ENDING AFFIRMATIVE ACTION: THE CASE FOR COLORBLIND JUSTICE (1996) (arguing that affirmative action causes reverse discrimination against white men particularly and that social engineering causes resentment);
52. FREDERICK R. LYNCH, INVISIBLE VICTIMS: WHITE MALES AND THE CRISIS OF AFFIRMATIVE ACTION (1991) (arguing that white males are victims of discrimination for a policy that is ill advised and creates resentment);
53. Robert J. Corry, Affirmative Action: An Innocent Generation's Equality Sacrificed, 22 OHIO N.U. L. REV. 1177 (1996);
54. Sander, supra note 11.
55. See infra notes 23-25 (discussing reductions in applications, admissions, and enrollments).
56. The language of color blindness came originally from Justice Harlan's dissent in Plessy v. Ferguson in which he stated, "Our constitution is color-blind, and neither knows nor tolerates classes among citizens." 163 U.S. 537, 559 (1896) (Harlan, J., dissenting). In the context of Plessy, color blindness is asserted as a lofty goal toward which United States society should work: racial distinctions should be eliminated in the hopes of remedying racial oppression. Id. However, the use of this concept has now been invoked to question the legitimacy of race-based remedies to amend race-based discrimination.
57. Ian F. Haney López, "A Nation of Minorities ": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 988 (2007).
58. Ian F. Haney López uses the term "reactionary colorblindness" specifically to discuss "an anticlassification understanding of the Equal Protection Clause that accords race-conscious remedies and racial subjugation the same level of constitutional hostility." Id. Moreover, Justice Thomas writes in Parents Involved in Community Schools v. Seattle School District No. 1, "The dissent attempts to marginalize the notion of a color-blind Constitution by consigning it to me and Members of today's plurality. But I am quite comfortable in the company I keep. My view of the Constitution is Justice Harlan's view in Plessy. . . ." 551 U.S. 701, 772 (2007) (Thomas, J., concurring) (citations omitted) (footnote omitted).
59. Race, in this context, is code for inequality amongst subordinate groups. The dominant group uses the language of "race no longer matters" to suggest that inequality is no longer an issue in society. Although anti-affirmative action activists have co-opted the ethnicity model to suggest that the United States does not need solutions to racial stratification, this is a misuse of the model. While some sociologists have long argued that the ethnicity model may give a more accurate portrayal of the social and historical context of groups in U.S. society than a race model whose origin comes from a history of mistaken science regarding the innate inferiority of certain groups, this model in no way suggests that inequality is no longer problematic. See Mario Barrera, Are Latinos a Racialized Minority?, 51 Soc. PERSP. 305, 321 (2008).
60. Although some have argued that racial discourse should be used to describe an ethnic group victimized by systematic discrimination, sociologists advocating for the ethnicity model make clear that the use of this model does not "preclude [examination of ethnic] relations of superordination- subordination and exploitation that are so readily identified with 'race' in the United States." Id. at 320; see also Fredrik Barth, Introduction to ETHNIC GROUPS AND BOUNDARIES: THE SOCIAL ORGANIZATION OF CULTURAL DIFFERENCE 27 (Fredrik Barth ed., Waveland Press, Inc. 1998) (1969). In other words, the desire to replace ethnicity discourse with racial discourse does not do away with the still fundamental problem of stratification in the United States.
61. For example, in 1995, after the Board of Regents for California eliminated race-based admissions, 21.5% of University of California system (UC) applicants were underrepresented minorities while they represented 38.3% of California's high school graduates. Symposium, From Proposition 209 to Proposal 2: Examining the Effects of Anti-Affirmative Action Voter Initiatives, 13 MICH. J. RACE & L. 461, 474 (2008) [hereinafter From Proposition 209 to Proposal 2] (remarks of Mark Rosenbaum, Legal Director, ACLU, Los Angeles). Three years later, the percentage of underrepresented minority UC applicants had dropped to 17.5%. Id.
62. In 2002, 17% of UC freshmen were from underrepresented groups despite making up 41.6% of California's high school graduates. Id. More specifically, African American enrollment dropped from 7.8% to 3.9%, and Latino enrollment dropped from 14.6% to 10.8%. Id. at 475. At the elite schools, the enrollment statistics were even more dire. One year after Proposition 209 took effect, UCLA's entering class of 5000 students included only ninety-eight African Americans, forty-nine of whom were athletes. Id. at 474. During that same time period, UC Berkeley's underrepresented minorities decreased from 22% to 12%. Id. at 474-75. Likewise, Washington State encountered precipitous drops in its applications of minority students. See Florangela Davila & Justin Mayo, I-200 Didn 't Erase Color on Campus: Minority Enrollment Dropped Initially, but Colleges Found Ways To Blunt Effects, SEATTLE TIMES, NOV. 24, 2002, at Al. Four years later, however, due to aggressive recruitment efforts, the state saw enrollment increase to levels higher than the previous decade, prior to a ban on race-based admissions policies. Id. Eight percent of incoming freshman came from underrepresented groups; in Washington, that includes African Americans, Latinos, and Native Americans. Regrettably, this number is still below the 12% of high school graduates that underrepresented minorities account for each year. Id.
63. See From Proposition 209 to Proposal 2, supra note 23, at 474-75. In 2006, only ninety-six of the 4852 entering freshmen at UCLA were black, representing 2% of the freshman class and the lowest number since 1973. Rebecca Trounson, A Startling Statistic at UCLA: At a School Whose Alumni Include Jackie Robinson and Tom Bradley, Only 96 Blacks A re Expected in This Fall's Freshman Class, L.A. TIMES, June 3, 2006, at Al.
64. See Student Academic Servs., Univ. of Cal. Office of the President, University of California Application, Admissions and Enrollment of California Resident Freshman for Fall 1995 Through 2003, http://ww.ucop.edu/news/ factsheets/flowfrc9503.pdf.
65. See supra note 24 (discussing underrepresented minority student applications). While law school enrollments dropped "precipitously" after California and Texas banned race-based admissions, medical school and graduate science schools admissions rates did not. Marcia Barinaga, Affirmative Action: Ban Has Mixed Impact on Texas, California Grad Schools, 277 SCIENCE 633, 633 (1997). Texas has since reinstituted race as a consideration in admitting students to higher education.
66. See Michael C. Dorf, Universities Adjust to State Affirmative Action Bans: Are the New Programs Legal? Are They a Good Idea?, FINDLAW, Jan. 29, 2007, http://writ.news.findlaw.com/dorf720070129.html. While the most competitive programs saw "significant drops," some programs saw the admissions rates for minority students increase. Barinaga, supra at 633.
67. On the other hand, at the University of Michigan, underrepresented minority student admissions dropped 43% after the ban on affirmative action took effect Walter Nowinski, Minority Admissions Plummet, MICH. DAILY, Feb. 19, 2007, available at http://www.rmcmgandaily.com/content/minority-admissions- plummet.
68. See Susan K. Brown & Charles Hirschman, The End of Affirmative Action in Washington State and Its Impact on the Transition from High School to College, 79 SOC. EDUC. 106, 125-26 (2006). In their empirical study on the impact of Washington State's ban on affirmative action, Brown and Hirschman concluded that the decrease in minority high school students attending college had more to do with fewer minority applicants than fewer minority admits. Id. They also asserted that affirmative action programs can neutralize an otherwise intimidating institution. Id.
69. See Daniel N. Lipson, Embracing Diversity: The Institutionalization of Affirmative Action as Diversity Management at UC-Berkeley, UT-Austin, and UW-Madison, 32 LAW & SOC. INQUIRY 985, 1014-15 (2007);
70. see also Univ. of Cal. Office of Strategic Commc'ns, Facts About the University of California (2001), http://www.ucop.edu/news/factsheets/2001/ admissionsoverview.pdf (describing in detail the programs undertaken to attract minority student applications and their impact).
71. "Underrepresented minority" refers to a racial or ethnic group whose proportional makeup of the enrolled student population is less than the proportional makeup of that group's population in the U.S. population. Cf Ass'n Am. Med. Colls., Underrepresented in Medicine Definition (Mar. 19, 2004), http://www.aamc.org/mededAirm/start.htm ("Underrepresented in medicine means those racial and ethnic populations that are underrepresented in the medical profession relative to their numbers in the general population.").
72. For example, while Asian Americans are considered a minority group in the U.S. population, this group is not considered underrepresented in the context of institutions of higher education because, typically, a higher percentage of Asian American students are enrolled in a university compared to their proportion of the U.S. population. Cf. U.S. Census Bureau, Asian/Pacific American Heritage Month: May 2010 (March 2, 2010), http://www.census.gov/Press- Release/www/releases/archives/facts-for-features-special-editions/014602.html (stating that in 2008, 50% of single-race Asians twenty-five or older had a bachelor's degree or higher level of education, compared to 28% of all Americans twenty-five or older). On the other hand, Pacific Islanders are considered underrepresented in higher education compared to their proportional representation in the U.S. population. Cf. id. (stating that in 2008,15% of single-race Native Hawaiians and other Pacific Islanders 25 or older had a bachelor's degree or higher level of education, compared to 28% of all Americans 25 or older).
73. See, e.g., Walter R. Allen & Daniel Solórzano, Affirmative Action, Educational Equity and Campus Racial Climate: A Case Study of the University of Michigan Law School, 12 BERKELEY LA RAZA L.J. 237 (2001);
74. Linda Hamilton Krieger, Civil Rights Perestroika: Intergroup Relations After Affirmative Action, 86 CAL. L. REV. 1251 (1998);
75. Onwuachi-Willig et al., supra note 5;
76. Daniel Solórzano, Walter R. Allen & Grace Carroll, Keeping Race in Place: Racial Microaggressions and Campus Racial Climate at the University of California, Berkeley, 23 CHICANO-LATINO L. REV. 15 (2002).
77. The other minority students with whom the respondents attended class were not necessarily members of the respondents' minority or ethnic group.
78. The purpose of studying these two groups of students is to examine the impact of two concepts that are frequently discussed in the literature: First, I wanted to explore how racial isolation in even one class affects students' college experiences. Second, I wanted to investigate the role of the critical mass on students' college experiences.
79. Recall that the definition of color blindness changes significantly based on context As used in its original meaning, it was a normative goal to eliminate color distinctions on the basis of race. However, color blindness has become the blunt tool of those seeking to protect the status quo. While it was once a heralded concept used by Thurgood Marshall and others seeking to eradicate those laws that ensured racial subjugation, those resisting race-conscious remedies needed to remediate racial subordination hypocritically cloaked themselves in the term attempting to redefine the moral high ground. See Haney López, supra note 21, at 1004.
80. "Dominant group" can be defined as "that collectivity within a society which has preeminent authority to function both as guardians and sustainers of the controlling value system, and as prime allocators of rewards in the society." R.A. SCHERMERHORN, COMPARATIVE ETHNIC RELATIONS: A FRAMEWORK FOR THEORY AND RESEARCH 12-13 (1970). It is not defined by numbers, but rather, by power.
81. "Other" in sociology refers to the out-group or individuals who are not members of our ethnic group. MARTIN N. MARGER, RACE AND ETHNIC RELATIONS: AMERICAN AND GLOBAL PERSPECTIVES 14 (2000). Individuals tend to normalize the standards and values adopted by their ethnic group and judge other groups by these standards. Id. With every ethnic group there is a notion of distinction between "them" and "us."
82. See id. The danger is when a dominant group garners a sense of superiority by judging other groups according to a set of "correct" or "natural" values and sentiments that may not apply to other groups. Id. at 13-14. "Ethnicity is a communalistic form of social affiliation, depending, first, upon an assumption of a special bond among people of like origins, and, second,... a disdain for people of dissimilar origins." EDNA BONACICH & JOHN MODELL, THE ECONOMIC BASIS OF ETHNIC SOLIDARITY: SMALL BUSINESS IN THE JAPANESE AMERICAN COMMUNITY 1 (1980). In institutions of higher learning, the dominant group is that of whites in which all others are judged by white normativity.
83. Peggy Mcintosh defines "white privilege" as an invisible package of unearned assets about which most white Americans are unaware. Peggy Mcintosh, White Privilege and Male. Privilege: A Personal Account of Coming To See Correspondences Through Work in Women's Studies 1-2 (Ctr. for Research on Women, Wellesley Coll., Working Paper No. 189, 1988), available at http://www.eric.ed.gov/ERICDocs/data/ericdocs2sql/content-storage-01/0000019b/ 80/23/1e/8c.pdf. Because most white Americans believe that their mode of operating is normative, they do not see how their lives are filled with taken-for-granted benefits. Id. at 4. Mcintosh developed a list of fifty daily effects that are attached to skin color. Some examples include: 1.I can if I wish arrange to be in the company of people of my race most of the time. 2. I can avoid spending time with people who I was trained to mistrust and who have learned to mistrust my kind or me. 5. I can go shopping alone most of the time, pretty well assured that I will not be followed or harassed. 6. I can turn on the television or open the front page of the paper and see people of my race widely represented. 16. I can be pretty sure that my children's teachers and employers will tolerate them if they fit school and workplace norms. . . . 21. I am never asked to speak for all the people of my racial group. 24. I can be pretty sure that if I ask to talk to "the person in charge," I will be facing a person of my race. 25. If a traffic cop pulls me over or if the IRS audits my tax return, I can be sure I haven't been singled out because of my race. 26. I can easily buy posters, post-cards, picture books, greeting cards, dolls, toys, and children's magazines featuring people of my race. 32. My culture gives me little fear about ignoring the perspectives and powers of people of other races. Id. at 5-9.
84. "Indirect institutionalized discrimination" is the cumulative effect of a set of practices carried out without the intent to harm a particular group, but with the actual effect of doing so. Joe R. Feagin, Indirect Institutional Discrimination: A Typological and Policy Analysis, 5 AM. POL.Q. 177, 186(1977). For example, within the world of higher education, legacy admits were created to give the offspring of alumni preferential treatment in the admissions process.
85. See Marybeth Gasman & Julie Vultaggio, A "Legacy" of Racial Injustice in American Higher Education, DIVERSE: ISSUES HIGHER EDUC, Jan. 22, 2008, at 24. This preference program can account for a large percentage of a freshman class. For example, in recent years legacy students have made up between thirteen and sixteen percent of Yale's incoming classes.
86. See Alice Gomstyn, Top Colleges Mum on Legacy Admissions, ABCNEWS.COM, Apr. 11, 2008, http://abcnews.go.com/Business/IndustryInfo/story?id= 4626882&page=l. While the program was not designed to negatively affect underrepresented minority groups, it does, because students whose relatives did not attend college cannot take advantage of this program by applying to their relative's alma mater. In fact, William G. Bowen, former Princeton University President, and Derek Bok, former Harvard University President, found that "[t]he overall admission rate for legacies was almost twice that for all other candidates." BOWEN & BOK, supra note 18, at 35. Yet no one has raised the issue of whether these students deserve to be admitted or whether they suffer stigma of not being admitted entirely on their own merits. Indeed, there is cause for worry with legacy students. In a recent study, when compared with other students whose parents had college degrees, legacy students had a mean SAT score 12 points lower and a first semester mean GPA 0.1 point lower.
87. See Nathan D. Martin & Kenneth I. Spenner, A Social Portrait of Legacies at an Elite University (paper presented at the American Sociological Association Annual Meeting, Sheraton Boston and the Boston Marriott Copley Place, Boston, Mass., July 31, 2008), available at http://www.allacademic.com/ meta/p240777-index.html.
88. Quiet bias refers to the subtle, uneasily detected acts of discrimination that are rarely overt. Cf. Roel W. Meertens & Thomas F. Pettigrew, Is Subtle Prejudice Really Prejudice?, 61 PUB. OPINION Q. 54, 54 (1997).
89. Meertens and Pettigrew refer to this type of discrimination as "cool, distant, and indirect" in contrast to the "hot, close, and direct" experience of blatant discrimination. Id. Peggy C. Davis introduced the concept of microaggression, which is closely connected to quiet bias, as "an instance of 'incessant, often gratuitous and subtle offenses.'" Peggy C. Davis, Law as Microaggression, 98 YALE L.J. 1559, 1560 (1989) (citation omitted).
90. See Addis, supra note 7, at 113-24.
91. "Sociological legitimacy" refers to a student's ability to move beyond isolation, avoid the stereotypes associated with their race or ethnicity, and do more than act as a spokesperson for their race. See id. at 118-19.
92. The code word for achieving enrichment is now diversity. While Derrick Bell and Charles Lawrence critique this model, Kenneth Nunn acknowledged that it does have the potential to enrich minority students' experiences as well. Compare DERRICK A. BELL, JR., FACES AT THE BOTTOM OF THE WELL: THE PERMANENCE OF RACISM 197-200 (1992)
93. and Charles R. Lawrence III, Two Views of the River: A Critique of the Liberal Defense of Affirmative Action, 101 COLUM. L. REV. 928, 952-56 (2001)
94. with Kenneth B. Nunn, Diversity as a Dead-End, 35 PEPP. L. REV. 705 (2008). However, as currently framed, diversity does not aim to focus on that goal, but rather on how white students will benefit from a racially diverse classroom. Nunn, supra at 724.
95. Addis, supra note 7, at 101.
96. The decontextualization of race both historically and culturally is central to the colorblind ideal. See DAVID A. ROEDIGER, COLORED WHITE: TRANSCENDING THE RACIAL PAST 7-12 (2002).
97. Bourdieu refers to this as symbolic violence in which the dominant group dehistoricizes our taken for granted modes of thought that reinforce the dominant social order. PIERRE BOURDIEU, PASCAUAN MEDITATIONS 170 (1991). Furthermore, symbolic power, the dominant group's ability to define the ways in which we conceive of social relationships (i.e., race relations) creates this symbolic violence in which the dominant group's invested understandings of the social world order materialize as universal in nature. See id.
98. See BELL, supra note 42, at 197-200.
99. A particularly poignant piece of data from the study is the effect of the color-blind ideal on students who were admitted to school based on the normative white meritocracy criteria. The spirit injury is acute in this group. As Patricia Williams observed, spirit injury refers to the "'disregard for others whose lives qualitatively depend on our regard.'" Patricia J. Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law's Response to Racism, 42 U. MIAMI L. REV. 127, 151 (1987) (observing that racism is "spirit-murder");
100. see also Adrien Katherine Wing & Sylke Merchan, Rape, Ethnicity, and Culture: Spirit Injury from Bosnia to Black America, 25 COLUM. HUM. RTS. L. REV. 1, 2 (1993).
101. Charles Lawrence points out that university admissions policies, whether they embrace affirmative action or not, use a measure of merit that replicates racial privilege and preserves the status quo. Lawrence, supra note 42, at 932. Moreover, by using the diversity defense to preserve affirmative action, that is, the benefits to white people of having people of color in the classroom, the university does not acknowledge its own past (or current) discriminatory practices. Id. at 953. "This denial concurs in and reiterates 'the big lie,' the anti-affirmative action argument that pretends white supremacy is extinct and presupposes a color-blind world, a world in which race-conscious remedies become invidious discrimination." Id. at 953-54.
102. "Symbolic ethnicity" refers to the individualistic nature of identifying with a particular ethnic group, which has little social cost to the individual. MARY C. WATERS, ETHNIC OPTIONS: CHOOSING IDENTITIES IN AMERICA 7-8 (1990). In general, symbolic ethnicity is articulated through leisure activities in which individuals choose to partake in those ethnic traditions that have some personal or enjoyable attribute to them. Id. These activities are
103. For example, being white and of Irish and Sicilian ancestry, I call the third week in March my high holidays because I choose to celebrate St. Patrick's Day and St. Joseph's Day. There is no social cost to me for celebrating these holidays. In fact, on St. Patrick's Day, I tend to have a feeling of specialness because my name and looks give me credibility in laying claim to my father's roots. This is part of my white privilege to choose to participate in these holidays with no social stigma. See HERBERT J. GANS, Symbolic Ethnicity: The Future of Ethnic Groups and Cultures in America, in MAKING SENSE OF AMERICA: SOCIOLOGICAL ANALYSES AND ESSAYS 167, 177 (1999).
104. See BOURDIEU, supra note 44, at 170.
105. 'Taken-for-grantedness" is a status of being in a place of privilege and not being aware of it. See MARGER, supra note 36, at 46-49. One does not question one's status because it is viewed as normal or natural. Id. Specifically, members of the privileged group are treated differently, receiving greater access to wealth, power, and prestige to which they come to feel entitled. Id. This entitlement occurs because the inequality is reproduced through society's institutions generationally. Id. Individuals who enjoy this place of privilege generally are not aware of it until it is taken away. Id. Discourse that exemplifies taken-for-grantedness includes phrases like "I didn't ask for any special favors just because. . . . " The point is, if you have a particular status of privilege, you don't ever have to ask for special favors because they are structurally reproduced as part of the culture of that institution. See BOURDIEU, supra note 44.
106. One of Moynihan's most effective and ruinous works argued that the structural remedies advocated for by the civil rights movement would offer no solution to African American families because "the present tangle of [black family] pathology is capable of perpetuating itself without assistance from the white world." OFFICE OF POLICY, PLANNING & RESEARCH, U.S. DEP'T OF LABOR, THE NEGRO FAMILY: THE CASE FOR NATIONAL ACTION 47 (1965). As Haney López points out, "Moynihan's report helped derail attention from the structural components of racism into a bitter, poisonous fight over the health of Black family life. It also helped to sidetrack the Johnson Administration's War on Poverty, shifting it from a broadly redistributive effort to one focused on minority pathologies." Haney López, supra note 21, at 1010;
107. see also JILL QUADAGNO, THE COLOR OF WELFARE: HOW RACISM UNDERMINED THE WAR ON POVERTY 28-31 (1994).
108. See Haney López, supra note 21, at 1004.
109. Id.
110. Anticlassification was the basis of Thurgood Marshall's argument in Brown, stating that classifications that the state made based on race violated the Fourteenth Amendment and created psychological injury in black people who experience their inferior status in society on a daily basis. See RICHARD KLUGER, SIMPLE JUSTICE: THE HISTORY OF BROWN V. BOARD OF EDUCATION AND BLACK AMERICA'S STRUGGLE FOR EQUALITY 574-75 (1976).
111. See Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978).
112. Richard Posner offered the boldest advance of this ideology. See Richard A. Posner, The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities, 1974 SUP. CT. REV. 1, 25.
113. For a full critique of this rational choice theory of racism, see Ian F. Haney López, Institutional Racism: Judicial Conduct and a New Theory of Racial Discrimination, 109 YALE L.J. 1717, 1761-69 (2000).
114. NATHAN GLAZER, AFFIRMATIVE DISCRIMINATION: ETHNIC INEQUALITY AND PUBLIC POLICY (1975).
115. Id. at 31.
116. Id. at 187-89.
117. Nathan Glazer, Negroes & Jews: The New Challenge to Pluralism, COMMENTARY, Dec. 1964, at 29.
118. See NATHAN GLAZER & DANIEL PATRICK MOYNIHAN, BEYOND THE MELTING POT: THE NEGROES, PUERTO RICANS, JEWS, ITALIANS, AND IRISH OF NEW YORK CITY 50 (1963). For a critique of Glazer's thesis, see Haney López, supra note 21, at 1021-29.
119. Glazer's book appeared to be a call to arms, so to speak, against the civil rights remedial jurisprudence of the early 1970s. Glazer took particular offense to the case law that emerged after adoption of the Civil Rights Act. This point seems to be the precipice from which the nation fell far from the color-blind ideal first articulated in Justice Harlan's Plessy v. Ferguson dissent. He writes contemptuously of the law's misconstruing of social realities based on racial animus instead of competing ethnicities. See Haney López, supra note 21, at 1022.
120. See GLAZER, supra note 57, at 200-01.
121. See id. In allowing for the possibility of racial hostility, but placing blame on the victim, Glazer may have sown the seeds of the stigma argument that has so much traction today.
122. Haney López observes that Glazer and Moynihan's goal was to return to a national policy of color blindness. The two articulated the themes of ethnicity theory and antidiscrimination law to bring about this notion. However, Haney López states, "These two ideas were not logically connected to each other at this point, but from the beginning they appeared together in ethnicity-based critiques of structural reform." Haney López, supra note 21, at 1012.
123. See id. at 1026.
124. 438 U.S. 265 (1978).
125. Id. at 292.
126. Id.
127. Id.
128. Haney López, supra note 21, at 1043. As Haney López points out, central to Powell's success in using ethnicity theory to ensure that race-conscious remedies were viewed with antagonism, was creating the view that a United States racial hierarchy had vanished. See id. at 1042-43.
129. Bakke, 438 U.S. at 287-92.
130. Id. at 291.
131. Powell embraced the ethnicity model by relying on a series of cases in which varying ethnic groups had sought protection from state oppression and observed: [T]he United States had become a Nation of minorities. Each had to struggle - and to some extent struggles still - to overcome the prejudices not of a monolithic majority, but of a "majority" composed of various minority groups of whom it was said - perhaps unfairly in many cases - that a shared characteristic was a willingness to disadvantage other groups. Id. at 292 (footnotes omitted);
132. see also Haney López, supra note 21, at 1035.
133. See Bakke, 438 U.S. at 292. "[I]n the logical jujitsu of reactionary colorblindness, proclaiming that minorities no longer faced race-specific structural impediments was not enough; instead, flipping the status of whites and blacks proved the key move." Haney López, supra note 21, at 1027-28.
134. See Nunn, supra note 42, at 711.
135. Nunn notes that Powell became successful in achieving plurality support for a strict-scrutiny standard for all racial classifications in Wygant v. Jackson Board of Education, 476 U.S. 267, 269 (1986). Nunn, supra note 42, at 711-12.
136. See Bakke, 438 U.S. at 295-96.
137. Alan Freeman, Antidiscrimination Law: The View from 1989, 64 TUL. L. REV. 1407, 1425 (1989).
138. See id.
139. See id. at 1408.
140. 488 U.S. 469 (1989).
141. Justice O'Connor wrote: To accept Richmond's claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for "remedial relief' for every disadvantaged group. The dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs. J.A. Croson Co., 488 U.S. at 505-06 (emphasis added).
142. Similar language can be found in Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)
143. and Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996).
144. Ronald Turner, The Too-Many-Minorities and Racegoating Dynamics of the Anti-Affirmative-Action Position: From Bakke to Grutter and Beyond, 30 HASTINGS CONST. L.Q. 445, 497 (2003) (quoting ballot pamphlet).
145. Haney López noted that the affirmative discrimination litigated in Bakke had to be situated within the larger cultural shift in the United States from a white monolithic to a resurgent pride in ethnic identity. Haney López, supra note 21, at 1044-45. In the center of this shift the movie Rocky was released, in which a working class Italian-American, Rocky Balboa, becomes the underdog in a boxing match against a privileged African American boxing champion, Apollo Creed. Id. Similarly, after a 16-year hiatus, Rocky Balboa reappears in 2006 as the underdog who is challenged to a match against the undeserving upstart champion, Mason "the Line" Dixon. ROCKY BALBOA (Metro-Goldwyn-Mayer Studios Inc. 2006). The name certainly has interesting connotations for this African American boxer, but what is most intriguing in the context of the anti-affirmative action litigation and referendum occurring during the same period is the description of Dixon's character. The boxer is losing respect because it is believed that his wins were carefully manipulated by his corporation rather than won by his own hard work and inner drive. See id.
146. 539 U.S. 306 (2003).
147. 539 U.S. 244 (2003).
148. Mr. Connerly has run successful anti-affirmative action referenda, that he calls Civil Rights Initiatives, in California, Washington, and Michigan. Welcome to the American Civil Rights Institute, http://www.acri.org/ward-bio. html. He attempted, but failed, to get similar initiatives on the ballot in Arizona, Oklahoma, and Missouri. Id. Recently, his initiative passed in Nebraska, but failed in Colorado. Id.
149. See Beydoun, supra note 12, at 474-75.
150. Dr. Martin Luther King, Jr., Address at March on Washington for Jobs and Freedom (August 28, 1963). The key language manipulated by Connerly is "I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character."
151. Beydoun, supra note 12, at 474-75.
152. Id. at 475.
153. White normative notions of meritocracy in the context of college admissions means relying on GPA and SAT scores. See Cho, supra note 11, at 1061 (observing that merit, within the affirmative action context, embraces a "white baseline of experience").
154. Duncan Kennedy, A Cultural Pluralist Case for Affirmative Action in Legal Academia, 1990 DUKE L. J. 705, 709-10
155. (citing Randall Kennedy, Racial Critiques of Legal Academia, 102 HARV. L. REV. 1745(1989)).
156. See id. Those who espouse the color-blind ideal do not see, or choose not to see, the fundamentally different experience minority students living in the United States encounter on a daily basis. As Erving Goffman observes, "The routines of social intercourse in established settings allow us to deal with anticipated others without special attention or thought. . . .[F]irst appearances are likely to enable us to anticipate [one's] category and attributes, [one's] 'social identity.'" ERVINGGOFFMAN, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY2 (1st Touchstone ed., Simon & Schuster, Inc. 1986) (1963). Certain attributes, such as being a member of a particular racial group, create stigma. Id. at 2-3. Stigma results in the individual being treated as part of an "out group." See id. Goffman emphasizes that it is not the attribute that determines stigma, but rather, central to stigma are social relations that define it as such. Id. Thus, race is socially constructed and defined as stigma. Goffman notes the effect as follows: By definition, of course, we believe the person with a stigma is not quite human. On this assumption we exercise varieties of discrimination, through which we effectively, if often unthinkingly, reduce his life chances. We construct a stigma-theory, an ideology to explain his inferiority. . . . We tend to impute a wide range of imperfections on the basis of the original one. Id. at 5. In the case of minority students, a host of imperfections are attributed to them on the basis of race, which discredits them daily in the world at large, and specifically in the academic arena. Persons stigmatized based on race soon find that any response they take to these discrediting interactions are then, in turn, used against them. Goffman explains, "Further, we may perceive his defensive response to his situation as a direct expression of his [stigma] and then see both [stigma] and response as just retribution... and hence a justification of the way we treat him." Id. at 6.
157. For a particularly disturbing account of the impact of racial stigma and its accompanying attributes, see Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 5 (2003), which describes an experimental study design in which black and white job applicants were matched on all features except criminal background and found whites with a criminal background were more likely to receive a call back than blacks without criminal records.
158. See Kennedy, supra note 93. Reva Siegel points out that the color-blind meritocracy is to be expected, given that the legal system serves to maintain hierarchical status relationships.
159. See Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 STAN. L. REV. 1111(1997). This latest iteration is part of the ongoing process she describes as "preservation- through-transformation" in which "liberal and capitalist systems of social organization did not result in the dismantlement of status relationships, but instead precipitated their evolution into new forms." Id. at 1113, 1116.
160. For years I taught an introductory sociology survey course. Inevitably, when we explored the topic of stratification, in terms of class, gender, sexual orientation, religion, and race, it was only when we broached the subject of race that some white student would state, "If we just stopped talking about race, it wouldn't be a problem any more." Such a pronouncement frees privileged students from examining the ways in which institutions and individual norms have benefited them and removes the burden of examining how these same institutions and norms create barriers for others. Roithmayr explains how these pre-existing institutional norms have created "locked-in racial inequality" because of educational monopoly cartels that have left minorities on the sidelines. Daria Roithmayr, Tacking Left: A Radical Critique of Grutter, 21 CONST. COMMENT. 191, 197 (2004). [T]he white monopoly advantage in education produced by these cartels may have become institutionally self-reinforcing over time. Historical segregation produced geographic pockets of people with better tax bases. Neighborhoods with more educational resources have produced neighbors with more wealth. In turn, neighbors with more wealth have produced neighborhoods with more educational resources. In this way, white advantages in education reproduce themselves over time. Id. at 201.
161. The survey is attached in Appendix A.
162. The ABRCMS is the largest professional conference for minority biomedical students. ABRCMS.ORG, General Information, http://www.abrcms.org/page01a.html. "[It] is designed to encourage underrepresented minority students to pursue advanced training in the biomedical and behavioral sciences." Id. It also provides resources for these students' mentors. See id. Students compete in poster sessions, meet with graduate school representatives, meet with scientific agencies regarding summer internships, and learn how to be socialized into the academy. Id. The conference attracts approximately 2800 individuals, including 1500 undergraduate students, 300 graduate and postdoctoral students, and 1000 faculty and administrators. Id. Students come from over 285 U.S. colleges and universities. Id. Thus, students who tend to be highly motivated, domain attached, and have mentors to encourage them to pursue graduate school are more likely to attend this conference.
163. See Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613 (1997) (demonstrating that highly domain attached individuals are at most risk for the negative effects of stereotype threat).
164. I gained access to the conference through a two-year negotiation process facilitated between Peter Milgrom (from the School of Dentistry and the Society for the Advancement of Chicanos and Native Americans), the American Society of Microbiologists, and Clifton Poodry (Director of Minority Opportunities in Research Division, National Institute of General Medical Sciences, National Institutes of Health). The project came about because of Dr. Milgrom's concern that the number of minority applicants to graduate school in the health sciences seemed to be dropping in the aftermath of passage of Washington State's Initiative 200 that banned affirmative action. See supra note 24.
165. The conference website posts the specific number of registrants for each year's conference. See ABRCMS.ORG, Highlights, http://www.abrcms.org/page01b. html.
166. I chose to study underrepresented minority students in the hard sciences because, while a significant amount of work has been done writing about minority students in undergraduate education generally, see Corinne E. Anderson, A Current Perspective: The Erosion of Affirmative Action in University Admissions, 32 AKRON L. REV. 181 (1999);
167. Margalynne J. Armstrong & Stephanie M. Wildman, Teaching Race/Teaching Whiteness: Transforming Colorblindness to Color Insight, 86 N.C. L. REV. 635 (2008);
168. Michael J. Kaufman, (Still) Constitutional School Desegregation Strategies: Teaching Racial Literacy to Secondary School Students and Preferencing Racially-Literate Applicants to Higher Education, 13 MICH. J. RACE & L. 147 (2007);
169. Angela Onwuachi-Willig, The Admission of Legacy Blacks, 60 VAND. L. REV. 1141 (2007);
170. Alfreda A. Sellers Diamond, Serving the Educational Interests of African-American Students at Brown Plus Fifty: The Historically Black College or University and Affirmative Action Programs, 78 TUL. L. REV. 1877 (2004), and in legal education and affirmative action
171. see Alma Clayton-Pedersen & Sonja Clayton-Pedersen, Post-Gutter: What Does Diversity Mean in Legal Education and Beyond? "Making Excellence Inclusive" in Education and Beyond, 35 PEPP. L. REV. 611 (2008);
172. cummings, supra note 14;
173. Jones, supra note 11;
174. Nunn, supra note 42;
175. Adrien Katherine Wing, Race-Based Affirmative Action in American Legal Education, 51 J. LEGAL EDUC. 443 (2001), very little has been written regarding affirmative action and students in the hard sciences
176. see Barbara A. Noah, A Prescription for Racial Equality in Medicine, 40 CONN. L. REV. 675 (2008);
177. Susan Welch & John Gruhl, Bakke in the Admissions Office and the Courts: Does Bakke Matter? Affirmative Action and Minority Enrollments in Medical and Law Schools, 59 OHIO ST. L.J. 697 (1998). Disparate life expectancies and access to health care remains dramatic between whites and minority groups. Noah, supra at 678. Having minority students in medical school and as doctors, researchers, and health care professionals will have a life-altering impact on these populations. Id. Yet, underrepresented minorities' underenrollment in the hard sciences in colleges, graduate schools, and professional schools is more significant than in any other fields of study.
178. See generally DIV. OF SCI. RES. STATISTICS, NAT'L SCI. FOUND., PUB. NO. 07-315, WOMEN, MINORITIES, AND PERSONS WITH DISABILITIES IN SCIENCE AND ENGINEERING: 2007 (2007), available at http://www.nsf.gov/statistics/wmpd/pdf/ nsf07315.pdf.
179. This study was approved by the Human Subjects Review Board. I was given a certificate of exemption that lasts until October 9, 2011. It is on file with the author.
180. Special thanks to Cecilio Barrera, Ph.D., for allowing us to distribute the survey during his session.
181. It is important to note that this is not a random sample. Furthermore, it is impossible to calculate a true response rate as all students did not have access to the survey. I can say, however, that of the 354 students who we did approach, only twenty-two declined to fill out the survey - thus 94% of the students chose to respond to the survey. I cannot say with confidence that no bias exists in the sample. However, I do feel the data captures more than those students who are motivated by an emotional response to report their experiences in higher education as so many of the students chose to fill out the survey when approached. Furthermore, readers may have additional questions about the demographics of the general population of conference attendees or the type of school the respondents attended. The ABRCMS does not keep this level of data. In addition, the Human Subjects Review Board limited the type of questions I could ask on the survey. Due to the sensitive nature of the subject, the Board did not want questions that would identify the school a respondent attended beyond the state in which it was located. Thus, information on whether the students attended a historically black college or university or whether they attended a public or private institution is not available. These variables most certainly would have provided a more nuanced story. While the results of the study are not generalizable to all underrepresented minority students - it is perhaps shocking to have such disclosure made by a social scientist before even discussing the results - as an exploratory study, the results do offer a definitive and disturbing picture of what other underrepresented students may be navigating beyond the respondents in this sample. Without a doubt, these results demand that additional research be conducted. What we can say about the sample is that these are high achieving students being mentored to continue their academic careers. Please see Appendix D for a more complete discussion of the methodology.
182. This software allows for a social scientist to create a database of variables and run rather complex statistical analyses on these variables.
183. The questions were driven by my desire to get a more detailed understanding of the story that emerged from the statistical analysis.
184. The excerpts from the answers to the interview questions are used only to provide concrete insight to the story that the numbers reveal. Again, a detailed demographic description of the interview respondents is not available. The Human Subjects Review Board wanted the interviews to retain the character of confidentiality, if not actually anonymity, to the extent possible.
185. California passed Proposition 209 in 1996. See supra note 16.
186. Washington State passed Initiative 200 in 1998. See supra note 16.
187. Florida's governor, Jeb Bush, issued the One Florida Initiative, which ended the use of affirmative action in education in 2000. See Walker, supra note 10. Instead, the initiative created a Talented 20 plan that guarantees college admission to the top 20% of the state's public high school graduates. Id.
188. Although Michigan passed Proposal 2 only the day before this survey was taken, see supra note 16, Michigan is included in this sample because of the ongoing anti-affirmative action atmosphere in which students have operated since 1998, when both Gratz and Grutter filed suit in the Eastern District of Michigan challenging the race-based admission policies at the university and law school respectively. Shortly after the Supreme Court issued its decision in Grutter, Ward Connerly began his anti-affirmative action initiative in January 2004, although he announced plans to do so a day after the Court decided Grutter. Leadership Conference on Civil & Human Rights, Connerly Announces Campaign to Ban Affirmative Action in Michigan (July 8, 2003), http://www.civilrights.org/equal-opportunity/michigan/connerly-announces- campaign-to-ban-arfirmative-action-in-rnichigan.html.
189. Given that the sample for these states has an n=55, one should consider these results as a pilot study rather than generalizable to the populations as whole. Sample sizes of less than 50, which occurred as each variable has missing data, can underestimate the strength of relationships between variables and thus not achieve statistical significance even when such relationships between variables do exist within the population. See JOSEPH F. HAIR, JR., ROLPH E. ANDERSON, RONALD L. TATHAM & WILLIAM C. BLACK, MULTIVARIATE DATA ANALYSIS 226-27 (3d ed. 1992). Therefore, these results should be reviewed as telling a story for the students in this sample.
190. While Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), created a seven-year ban on race-based admission in Texas, the state reintroduced race-based policies in 2003 when the Supreme Court issued Grutter. See Dorf, supra note 27. These policies are used in tandem with their top ten percent plan. See id.
191. Alabama, Arizona, Connecticut, Delaware, Georgia, Hawaii, Illinois, Louisiana, Maryland, Massachusetts, Mississippi, Missouri, New Jersey, New Mexico, New York, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, and Virginia. Six respondents who attend school outside the United States were excluded from the sample.
192. Puerto Rico and Washington, D.C.
193. A p-value ≤ .05 indicates statistical significance. By convention, a probability level that says there is a greater than 5% probability that the results occurred by chance is considered not to be statistically significant. See Michael Cowels & Caroline Davis, On the Origins of the .05 Level of Statistical Significance, 37 AM. PSYCHOLOGIST 553 (1982). Statistical differences between the two groups on these demographic variables would dictate that those variables should be included as control variables in the bivariate analysis of the variables of interest: state attended school and stigma measures. As these variables are not normally distributed along the normal curve, they are considered nonparametric.
194. Mark Plonsky, Psychological Statistics: Nonparametric Statistics, http://www.uwsp.edu/psych/Stat/14/nonparm.htm. Under those circumstances, chi square remains the appropriate statistical test to determine whether differences among the variables are statistically significant, and therefore generalizable, and phi is the appropriate test to measure the strength of the relationship. AcaStat Software, Coefficients for Measuring Association, http://acastat.com/ Statbook/chisqassoc.htm.
195. I did not define overt acts of racism for the respondents because, as W.I. Thomas observed, "[i]f men define situations as real, they are real in their consequences." SOCIAL BEHAVIOR AND PERSONALITY: CONTRIBUTIONS OF W.I. THOMAS TO THEORY AND SOCIAL RESEARCH 14 (Edmund H. Volkart ed., 1951)
196. (quoting W.I. THOMAS & DOROTHY S. THOMAS, THE CHILD IN AMERICA 572 (1932)). However, in interviews, students provided some examples of overt racism that they had experienced: a) "students refusing to acknowledge me in my dorm or class" b) "people avoiding walking near me on campus at night" c) "some students will make an excuse not to be my lab partner" d) "people mutter the N word or shout it at parties when they're drunk" e) "white students think it is funny to dress 'ghetto' for parties" f) "people trying to fight me at parties or bars" g) "racial slur graffiti on our dorm floor" h) "drunk people yelling racial slurs at me and my friends like quota queen or token head" i) "someone joked you are smarter than you look" j) "I get asked if I can speak and write English all the time" h) "I've received hostile emails in a discussion group for class because of the opinion I gave on race."
197. These results have a phi of .2, which indicates a small relationship. However, the difference between the two groups is statistically significant at the p ≤ .001 indicating that there is less than one one-thousandths probability that these results occurred by chance. Phi provides a coefficient that measures the strength of a relationship in which zero represents no relationship and 1 represents a perfectly correlated relationship. See AcaStat, supra note 116. It is worth noting that statistical significance is easier to achieve with a larger sample. PPA 696 Research Methods, Tests for Significance, http://www.csulb.edu/~msafatg/ppa696/696stsig.htm.
198. Thus, the fact that the statistical significance was achieved in a small sample combined with the phi of .2 gives these results practical significance too. As a rule with using chi square, an effect size, as measured in phi, of .1 is considered small, .3 medium, and .5 large. JACOB COHEN, STATISTICAL POWER ANALYSIS FOR THE BEHAVIORAL SCIENCES 224-27 (2d ed. 1988). The larger the effects the more worthwhile reporting they are.
199. See generally Joe W. Kotrlik & Heather A. Williams, The Incorporation of Effect Size in Information Technology, Learning, and Performance Research, INFO. TECH., LEARNING, & PERFORMANCE J., Spring 2003, at 1, 2-3.
200. Examples of overt racism from faculty included: a) "speaking rudely to me, but joking around with white students" b) "looks at me when I raise my hand but always refusing to call on me" c) "calling me by the name of another Latina girl in class" d) "won't give me an extension, but gave my white friend one" e) "saying [he] didn't have time to write me a letter of recommendation because he already had too many things to do" f) "asked for verification of medical emergency when I had to miss class but never asked anyone else to do that" g) "tries to talk 'Black' whenever he addresses me" h) "called on me only once in class when we were talking about illegal immigrants" i) "will never, ever look me in the eye when I contribute to class conversations"
201. To be precise, the argument may be that racism no longer exists in a form today that mirrors the racism that may have been present at the time affirmative action policies were enacted.
202. One student commented on the pressure to prove herself based on race this way: "Every single day in a thousand different ways, I am reminded by my peers that they some how are waiting for me to slip. They are suspicious of me whether they say so or not."
203. See Steele, supra note 98, at 614. Steele points out that negative stereotypes exist for African Americans on important academic abilities. Id. Thus, African Americans mindful of these stereotypes will be acutely aware of their threat. Id.
204. The responses of students in anti-affirmative action states to both this question and the next question reveal that these students are experiencing greater stigma in states where they were admitted entirely on their merit This shows impression management fatigue that comes from the stigma associated with minority group membership. A small to moderate relationship between where one attends school and the pressure to succeed is present with a phi of .258.
205. There is a moderate relationship between these two variables. In other words, there is a relationship between where one attends school and whether one believes race-based admissions are necessary. However, this result is marginally statistically significant at p ≤ .06.
206. Onwuachi-Willig et al., supra note 5, at 1322 (quoting Christopher A. Bracey, The Cul de Sac of Race Preference Discourse, 79 S. CAL. L. REV. 1231, 1275 (2006)).
207. Examples of having their qualifications questioned were articulated in the following ways: a) "So, just how did you get in here?" b) "Did you get in based on some athletic program?" c) "Well, what's your GPA? Where'd you go to high school? What'd you get on your SATs?" d) "Have you actually taken an AP course?" e) "Did you have to be in a special program to get up to speed first?"
208. It is quite possible that students attending school in affirmative action states do privately question their minority peers' qualifications, yet do not feel comfortable directly confronting them in the same manner as white students do in schools located in states that ban affirmative action.
209. These results are marginally statistically significant
210. This quote also offers insight into some of the microaggressions that underrepresented minority students experience in addition to overt racism.
211. As enrollments of minority students decreased significantly after the passage of these initiatives, see supra note 23-28 and accompanying text, I surmised that there might be a greater likelihood of racial isolation for students in anti-affirmative action states.
212. An important consideration to note is that a moderate relationship (phi .227, significance level of .01) exists between students who have no classes in which they are the sole minority versus those who have at least one in which they are the sole minority and whether students attend school in a state with or without affirmative action.
213. In addition to being statistically significant, a moderately strong relationship with a phi of .35 exists between these two variables.
214. This difference is not only statistically significant, but it represents the highest number across all groups, even the sample of students in anti-affirmative action states.
215. I must stress that the stigma these students encounter is not stigma that occurs because of affirmative action. This is stigma that is the result of being in the "out-group," that is, not being white. See GOFFMAN, supra note 94, at 116.
216. Remarkably, the differences between these two groups are statistically significant on every variable. Recall that statistical significance indicates the probability that the differences occurred by chance. In most cases, the probability is less than .001%.
217. However, only a small relationship exists between ability to succeed ratings and whether one has been the individual minority in a class with a phi of .169 and a statistical significance level of .05.
218. A moderate correlation exists between fitting in and whether a student has been the lone minority in a class with a phi of .316, which is statistically significant at the .001 level.
219. This moderate relationship between whether one has been a solitary minority in a class and pressure to prove has a phi of .334 with a significance level of .001.
220. A phi of.353 and significance level of .001 shows that a moderately strong relationship exists between having one's qualifications questioned and having been the sole minority in a class.
221. A small to moderate relationship with a phi of .217 and a significance level of .001 is present between faculty expectations and whether a student has been racially isolated in a class. These same students who have never encountered being the solitary minority in a class are more likely than any other group to report having a mentor who is also a member of a minority group. In addition, they are more likely than any other group to state that faculty encouraged them to speak about their career aspirations.
222. The variables racial isolation experienced in class and admissions policy on race affecting perceptions have a small to moderate relationship of .256 with a significance level of .001.
223. The distribution differences between the two groups are statistically significant at the .01 level and demonstrate a small to moderate relationship between racial isolation and who students are likely to say still believe the statement with a phi of .226.
224. Similar trends exist in affirmative action states, but to a smaller degree and with weaker correlations.
225. Kenji Yoshino, Covering, 111 YALE L.J. 769, 825 (2002).
226. These warnings come in the form of paternal concern, yet they reinforce the status quo. It is a form of symbolic violence in which the dominant group defines what is good or bad for the subordinate group, and in doing so ensures the power of the privileged.
227. See supra notes 4-6 and accompanying text
228. Apparently, there is no fear that students who received "preferential" treatment because their families attended the school are in danger of this hostility. It is not surprising, as legacy programs ensure the tunneling of resources from one privileged generation to the next There also does not seem to be a concern that legacy students are much more likely to rely on their resource networks to find employment after graduation, rather than rely on their scholarly achievements. In this sense, both a raced and classed monopolization is protected. Legacy students are disproportionately white and wealthy, but not necessarily the highest achievers. See supra note 38.
229. However, the effect of producing whiteness is far more insidious than forcing the "other" to conform to normative modalities defined by the dominant group, as it eliminates access to resources. Students who may otherwise have been admitted to graduate school in anti-affirmative action states may self select an affirmative action state. Thus, an exodus of underrepresented minority students from anti-affirmative action states to affirmative action states protects the state's educational resources for the dominant group, while increasing the competition for resources in states that allow race-based admissions. Taken to its logical conclusion, highly qualified minority students who would be admitted under the "merit" model could find that they cannot be admitted under a "race-preferencing" model if the supply of seats becomes limited. In our current economic climate, such a scenario appears possible. On the other hand, legacy admits are less likely to encounter this situation because on average twice the number of seats are made available for alumni affirmative action programs than race-based affirmative action programs.
230. Jane Ward, White Normativity: The Cultural Dimensions of Whiteness in a Racially Diverse LGBT Organization, 51 Soc. PERSP. 563, 583 (2008).
231. While this quotation represents the most overt way students are silenced, students also reported a number of microaggressions in which they were silenced not only for talking about race but also for speaking up in general. They included: 1. loud sighing; 2. rolling of eyes; 3. snickering; 4. doodling; 5. puzzled facial expressions; 6. exasperated facial expressions; 7. bored facial expressions; 8. interruptions; 9. requests "to move on"; and 10. email requests to not talk so much in class.
232. Goffman refers to a master status as that individual trait or characteristic that forms the identity by which all others judge an individual. GOFFMAN, supra note 94, at 6-7. Race is an example of a master status. Id.
233. Kimberlé Williams Crenshaw, Foreword: Towards a Race-Conscious Pedagogy in Legal Education, 4 S. CAL. REV. L. & WOMEN'S STUD. 33, 35 (1994).
234. Id.
235. Id.
236. Armstrong & Wildman, supra note 101, at 664.
237. See Woody Doane, Rethinking Whiteness Studies, in WHITE OUT: THE CONTINUING SIGNIFICANCE OF RACISM 7-8 (Ashley W. Doane & Eduardo Bonilla-Silva eds., 2003).
238. Black Hawk Hancock, "Put a Little Color on That!," 51 Soc. PERSP. 783, 788 (2008)
239. (citing Pamela Perry, White Means Never Having to Say You 're Ethnic: White Youth and the Construction of "Cultureless " Identities, 30 J. CONTEMP. ETHNOGRAPHY 56 (2001)).
240. Albert Murray, White Norms, Black Deviation, in THE DEATH OF WHITE SOCIOLOGY: ESSAYS ON RACE AND CULTURE 96 (Joyce A. Ladner ed., 1998).
241. Mcintosh, supra note 37, at 23.
242. Armstrong & Wildman, supra note 101, at 672.
243. See Crenshaw, supra note 152.
244. Stanley Lieberson refers to these individuals as "unhyphenated Whites." Stanley Lieberson, Unhyphenated Whites in the United States, 8 ETHNIC & RACIAL STUD. 159 (1985).
245. Mary C. Waters, Optional Ethnicities: For Whites Only, in THE SOCIAL CONSTRUCTION OF DIFFERENCE AND INEQUALITY: RACE, CLASS, GENDER, AND SEXUALITY 29, 30 (Tracy E. Ore ed., 4th ed. 2009).
246. Part of the reason whites are able to misrecognize the historical and cultural contexts of race and ethnicity for people of color is because they view their own ethnic or racial identity as a choice. See WATERS, supra note 48, at 18. When they choose to identify with a particular ethnic group, they do so with no social cost. See id. at 150-55. White people's ability to consume ethnicity on an optional basis decontextualized from its historical basis produces a view of the world in which racial and ethnic identity are a matter of choice with little social meaning. Id. Thus, one's membership in a given racial or ethnic group must have no social consequence for minorities too. See id. at 157. This de-historicizing of racial and ethnic narratives leads to racial amnesia in which the dominant group fails to recognize their master status as one filled with social rewards and minority groups' master status as one filled with social penalties - a social order that the dominant group constructs and reproduces to protect their power. See id. at 155-64.
247. See WATERS, supra note 48.
248. See BOURDIEU, supra note 44, at 164.
249. See John a. powell, Dreaming of a Self Beyond Whiteness and Isolation, 18 WASH. U. J.L. & POL'Y 13, 36-37 (2005).
250. "Cultural capital" refers to specific attributes a person possesses in a given social context that will lead to some gain. The attributes can be physical traits, knowledge of types of behavior or language that is valued in a social setting, as well as social networks in that setting. Pierre Bourdieu, The Forms of Capital, in HANDBOOK OF THEORY AND RESEARCH FOR THE SOCIOLOGY OF EDUCATION 241, 243-48 (John G. Richardson, ed., 1986).
251. Minority students must continually combat the stereotypes that others hold regarding racial groups. This is particularly acute for underrepresented students who attend colleges and universities where students have little to no interaction with individuals outside their own racial background. Unfortunately, these populations receive most of their information about other racial groups from media portrayals that acutely reify stereotypes of racial minorities. One of the most significant casualties of underrepresented minority students' management of stereotypes is the negative effect such stereotypes have on a student's performance. Claude Steele's stereotype-threat theory demonstrates that otherwise successful minority students who are faced with a stereotype that the dominant group may use to explain their performance will often not perform as well, or simply avoid an attempt at achieving success for fear of confirming that stereotype. Steele, supra note 98, at 620-21. For example, Professor Steele found that in giving students the same achievement test, but in one group telling them it was a problem solving exercise while telling the other group it was a diagnostic test of intelligence, the average score was virtually identical for white and black students in the former setting. Id. However, blacks performed half as well in the latter setting when faced with a stereotype threat. Id. The results were even more profound when Professor Steele gave the same test to both groups, but in one group asked all students for their racial background but not in the other. Id. Once again, the performance of black and white students was identical when race was not asked, but black students performed at a rate of 60% less than white students when they were asked to identify their race. Such is the power and burden of racial stereotypes. Id.
252. Brown & Hirschman, supra note 28.
253. Steele, supra note 98, at 614.
254. See Ben Gose, Test Scores and Stereotypes, CHRON. HIGHER EDUC. (Wash., D.C.), Aug. 18, 1995, at A31. When Steele applied his experiment results to a first year college transition program at Stanford, in which students participated in workshops on successful adjustment to college, black students got slightly higher grades than white students who were not in the program. Id.
255. For example, some schools in California, Washington, and Michigan have programs designed to support underrepresented minority students on campus. Minn. State Colls. & Univs., Academic and Student Affairs, A Summary of "Best Practices" for Recruitment and Retention of Students of Color, www.acadenucafiairs.mnscu.edu/studentaffairs/documents/BestPractices.pdf.
256. Interview by Frontline with Claude Steele, Professor of Social Psychology, Stanford Univ., http://Avww.pbs.org/wgbh/pages/frontline/shows/sats/ interviews/steele.html [hereinafter Interview with Claude Steele].
257. Id. Professor Steele elaborates further: It happens whenever these students are in the domain where the stereotype is applicable. So [with] any kind of intellectual performance or interacting with professors or teaching assistants or other students in a classroom, this stereotype is relevant and constitutes a pressure on those behaviors. .... It has become vividly clear ... that the effects of the stereotype are poignantly most powerful for the students who are the strongest and the most motivated. For them, functioning at the frontier of their skills with this prospect of being seen, stereotypically, [to be] over their heads, they're the ones who experience a disruption and so forth. . . . . That it's the academic vanguard of the group... that is experiencing the threat... can be thought of as having to pay a sort of pioneer tax:... the black student who is really doing well and is sort of in a top flight, high pressure college or graduate program or professional program or something. That person, because they're having to deal with this threat and the prospect of it is paying a certain tax to be there that other students are not having to pay. This is not to make the journey of other students seem trivial or light because it isn't. It's just to argue that in addition, for students who are negatively stereotyped in this domain, there's this other tax to pay. Id.
258. See id. This perception comes from the ambiguity students of color encounter when interacting with faculty. The feedback they receive from faculty cannot necessarily be taken at face value. Students of color have to question whether such feedback may be the result of "negative stereotypes," as Professor Steele calls them, or "auxiliary traits," as Irving Goffrnan calls them, associated with the student's ethnic or racial group membership. GOFFMAN, supra note 94, at 3.
259. I use the language "my school" because I believe a fair number of white students have a sense of entitlement and ownership when it comes to higher education. Many students feel confident that they are unquestionably deserving of their admissions because they earned it meritoriously. However, very few white students have the opportunity to critically examine what and who defines merit. See Lawrence, supra note 42, for a full discussion of the meaning of merit-based admissions.
260. Professor Steele observed, I think relationships are very important. . . . [B]ecause if we have a relationship, I will almost by definition trust that you're not going to see me stereotypically. So when college students come in and they have a variety of relationships with people in their environment, then they become confident, relaxed that in this environment, although [they] know those stereotypes exist in society in general, in this environment [the student is] not affected by them. . . . Interview with Claude Steele, supra note 174.
261. Students who had taken one or more class as the sole minority in that class reported encountering overt racism at twice the rate of students who had never been the lone minority in a class.
262. Adrien K. Wing, Brie/Reflections Toward a Multiplicative Theory and Praxis of Being, 6 BERKELEY WOMEN'S L.J. 181, 186 (1991) (building on Patricia William's concept of spirit murder to explore the multitude of ways people of color suffer from oppression).
263. As Nunn points out, this kind of diversity is tokenism. It is an accommodation by the dominant group to allow a few representatives from outsider groups to join the institution. He writes, "As long as some people of color show up in the applicant pool and some - but not too many - are granted admission, then a university can claim that it is diverse. It matters not that this is token representation at best." Nunn, supra note 42, at 723. However, a negative reaction can occur when diversity rises beyond the desired token level. See Darnell M. Hunt, Editorial, UCLA Rights a Wrong, L.A. TIMES, Sept. 7, 2008, at A34 (reporting that UCLA admissions accused of illegal consideration of race in using a holistic approach to evaluate applicants when the number of minorities admitted doubled).
264. Interview with Claude Steele, supra note 174. If the leadership of the university expresses a value in diversity, that people from different backgrounds bring things to campuses that are of value to everybody here, that sends a clear message that the things about my group that are distinctive ... will not result in negative judgments but will be valued in this environment... Sometimes diversity is just seen as an empty piece of rhetoric. But it can send a very important signal to people who are otherwise under the threat of stereotypes in a situation. Id
265. Grutter v. Bollinger, 539 U.S. 306, 330 (2003).
266. See Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518, 523 (1980). Bell observed that whites would only accept affirmative action when it was seen as benefitting them. Id. Further, D. Marvin Jones writes, "Diversity is a concession from within the framework of 'imposition'; it allows blacks in but only to the extent it serves the goals of white privilege." Jones, supra note 11, at 602.
267. Hancock, supra note 157, at 788.
268. Engaging with race outside of the college classroom can come in some terribly disturbing ways. For example, a number of colleges have reports of white students holding "ghetto parties" in which white students dress in a stereotypical manner. Most recently, students at UC San Diego held a "Compton Cookout" to mock Black History month. Amina Khan, San Diego Officials Meet with Students Angry About Off Campus 'Compton Cookout,' Feb. 19, 2010, L.A. TIMES, http://latimesblogs.latimes.com/lanow/2010/02/uc-san-diego- ofBcials-meet-with-students-angered-by-offcampus-compton-cookout-.html.
269. Grutter, 539 U.S. at 330.
270. Id.; see also Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007).
271. See Teaching Tolerance: A Project of the Southern Poverty Law Center, http://www.tolerance.org/index.jsp (offering lesson plans on how to discuss anti-bias).
272. The dictionary defines "tolerate" as such. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 1315 (11th ed. 2003).
273. "Embrace," a verb, is defined as "to take in or include as a part, item, or element of a more inclusive whole" or "to be equal or equivalent to." Id. at 406.
274. Lawrence, supra note 42, at 967.
275. See Addis, supra note 7, at 123.
276. cummings, supra note 14.
277. Debra Humphreys, The Impact of Diversity on College Students: The Latest Research. AAC&U for the Ford Foundation Campus Diversity Initiative (1998), http://www.dversityweb.org/research-and-trends/research-evaluation-impact/ benefits-of-diversity/impact-of-diversity.cfin (offering a detailed analysis of specific actions universities can take to meet the needs of underrepresented minority students).
278. Institutions of higher education must contemplate how the culture at large informs the culture of the institution. After all, organizations are racialized in relation to, but also apart from, the raced beings that inhabit them. It is not enough to create the aesthetic of diversity within an organization. Colleges and universities must continue to assess how dominant cultural norms may infiltrate and negatively impact students of color. See Ward, supra note 149, at 564.
279. Grutter v. Bollinger, 539 U.S. 306, 354 n.3 (2003) (Thomas, J., concurring in part and dissenting in part).
280. Ultimately, the goal is not just create equal access within education, it is to create equal access within all facets of society. When we come to terms with discrimination, a fully participating diverse society will benefit the lives of many. As we bask in the glow of our nation's first black president, it is easy for some to put race in the past. We would do well to remember what Barack Obama observes in his memoir, Dreams from My Father, "the past is never dead and buried - it isn't even past." BARACK OBAMA, DREAMS FROM MY FATHER: A STORY OF RACE AND INHERITANCE, at x (2004) (paraphrasing William Faulkner).
281. See Brown & Hirschman, supra note 28.
282. See generally Megan M. Kelly, Audrey R. Tyrka, Lawrence H. Price & Linda L. Carpenter, Sex Differences in the Use of Coping Strategies: Indicators of Anxiety and Depressive Symptoms, 25 DEPRESSION & ANXIETY 839 (2008) (noting women are more likely to engage in self-blame for negative stressful events).
283. See generally Martin D. Ruck & Scot Wortley, Racial and Ethnic Minority High School Students' Perceptions of School Disciplinary Practices: A Look at Some Canadian Findings, 31 J. YOUTH & ADOLESCENCE 185, 193 (2002) (arguing that increased perceptions of discrimination amongst students who immigrated at an early age compared to students who immigrated at an older age relates to time exposed to social mechanism of racism).
284. Onwuachi-Willig et al., supra note 5.