Meeting across the river: Why affirmative action needs race & class diversity

Denver University Law Review

Volumn 88, Issue 4, 2011, Pages 751-789

  Bowen, Deirdre M ^a  

^a SEATTLE UNIVERSITY   (United States)

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EID: 84866458722     PISSN: 08839409     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (419)

1. Richard H. Sander, Class in Legal Education, 88 DENV. U. L. REV. 631, 633 (2011).
2. Sander criticizes the use of racial diversity as becoming increasingly arbitrary, unfair, and offensive as the United States becomes more multiracial.
3. He further alleges possible harms of affirmative action, including stigmatization, group self-segregation, lower graduation rates, and higher bar failure rates.
4. See David L. Chambers et al., Response, The Real Impact of Eliminating Affirmative Action in American Law Schools: An Empirical Critique of Richard Sander's Study, 57 STAN L. REV. 1855, 1857 (2005)
5. Examining data and concluding that eliminating racial preferences would yield a "substantial net decline in the number of African Americans entering the bar"
6. Ian Ayres & Richard Brooks, Response, Does Affirmative action Reduce the Number of Black Lawyers?, 57 STAN. L. REV. 1807, 1816-18 (2004)
7. André douglas pond cummings, "Open Water": Affirmative Action, Mismatch Theory and Swarming Predators-A Response to Richard Sander, 44 BRANDEIS L.J. 795, 795-806 (2006)
8. Daniel E. Ho, Scholarship Comment, Why Affirmative Action Does Not Cause Black Students to Fail the Bar, 114 YALE L.J. 1997, 2000-02 (2005)
9. Jesse Rothstein & Albert H. Yoon, Affirmative Action in Law School Admissions: What Do Racial Preferences Do?, 75 U. CHI. L. REV. 649, 650-56 (2008)
10. Empirically Analyzing Sander's data and concluding that eliminating affirmative action would reduce the number of black lawyers at far greater rates than the increase in number of black law students who might pass the bar exam with the elimination of negligible mismatch effects concentrated in the small pool of the weakest students
11. Cheryl I. Harris & William C. Kidder, The Black Student Mismatch Myth in Legal Education: The Systemic Flaws in Richard Sander's Affirmative Action Study, 46 J. BLACKS HIGHER EDUC. 102 (2004)
12. Discussing results of Sander's data and after their own analysis, drawing the opposite conclusion
13. Sander contrasts racial diversity across law schools with SES across law schools, noting that unlike racial diversity, SES diversity has changed very little since the 1960s and that "the great majority of non-white law students are, like whites, from relatively elite backgrounds."
14. He then finds that "[f]or all racial groups, in all law school groupings, the SES distribution is tilted towards the top . . . . It is not the case . . . that the typical beneficiary of racebased law school affirmative action has low SES." Id. at 651. This data leads Sander to conclude that "[i]t is hard to justify giving large preferences to blacks and Hispanics from privileged backgrounds while ignoring the needs of low-SES applicants of all races.
15. CHARLES J. OGLETREE, JR., THE PRESUMPTION OF GUILT: THE ARREST OF HENRY LOUIS GATES JR. AND RACE, CLASS, AND CRIME IN AMERICA 99 (2010).
16. W.E.B. Du Bois described those academically and economically accomplished African American men as the "Talented Tenth." W.E.B. DU BOIS, THE SOULS OF BLACK FOLK 78 (Bantam Classic Reissue 2005) (1903).
17. The focus of this Article is on affirmative action in higher education and the educational system.
18. For studies of racial interactions in other social institutions see Lathonia Denise Stewart & Richard Perlow, Applicant Race, Job Status, and Racial Attitude as Predictors of Employment Discrimination
19. J. BUS. & PSYCHOL. 259, 259-75 (2001).
20. Somnath Saha, Jose J. Arbelaez, & Lisa A. Cooper, Patient-Physician Relationships and Racial Disparities in the Quality of Health Care, 93 AM. J. PUB. HEALTH 1713, 1713-19 (2003). (Pubitemid 38477640)
21. For a full accounting of the variety of ways in which this guilt and suspicion play out daily in the lives of African Americans, see generally OGLETREE 5, at 129-241.
22. Another example is the arrest and felony conviction of a woman who used her father's suburban address to send her children to a better school. Her felony conviction now prevents her from pursuing her teaching career.
23. Meghan Barr, Rev. Al Sharpton Supports Kelley Williams-Bolar In Ohio School Choice Case, HUFFINGTON POST, (Feb. 17, 2011, 10:54 PM), http://www.huffingtonpost.com/2011/ 02/18/al-sharpton-kelley-williams-bolar-n- 825144.html.
24. I use this term in the sense to suggest that some individuals of color enjoy academic and economic success and therefore, class has triumphed over race.
25. College graduates of all races attend law school of rates that approach or even exceed the white rate. But low- and middle-SES college graduates are far less likely to attend law school than are high-SES graduates.
26. Ian F. Haney López, Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama, 98 CAL. L. REV. 1023, 1051 (2010) (emphasis added).
27. Sander 1, at 660.
28. Sander asserts that affirmative action, as originally conceived, was "not using preferences, but making sure that outreach and admissions procedures are fair and class-neutral."
29. I cannot emphasize enough how essential it is to grasp the insidious nature of our current discourse of colorblindness.
30. Charles A. Gallagher, Color-Blind Privilege: The Social and Political Functions of Erasing the Color Line in Post-Race America, 10 RACE, GENDER & CLASS, no. 4, 2003 at 22, 26, 32-33
31. Finding that the color-blind perspective allows whites to classify themselves as progressive, non-judgers of race, view society as a meritocracy and attribute any inequality as based on class differences not institutional racism.
32. To be clear, many social scientists fall into this trap. Indeed, my own work has been criticized for doing the same.
33. Mark Strasser, On Disguises, Tokens, and Affirmative Action Policies, 85 IND. L.J. 1293, 1294 (2010).
34. 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).
35. 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.
36. However, this concept now finds use to question the legitimacy of race-based remedies to amend race-based discrimination.
37. Ian F. Haney López, "A Nation of Minorities": Race, Ethnicity, and Reactionary Colorblindness, 59 STAN. L. REV. 985, 988 (2007).
38. 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."
39. 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.
40. My view of the Constitution is Justice Harlan's view in Plessy . . . ." 551 U.S. 701, 772 (2007) (Thomas, J., concurring) (footnote omitted) (citations omitted).
41. TIM J. WISE, AFFIRMATIVE ACTION: RACIAL PREFERENCE IN BLACK AND WHITE 69 (2005)
42. Conservatives claim that people of color are taking college admissions slots from morequalified whites, thanks to affirmative action in higher education.
43. Essentially, Sander makes the same claim in this article.
44. It is not entirely clear what Sander means when he uses the word true.
45. I presume that means having four grandparents who all share the same racial background as the student.
46. Blacks are not capitalized here in accordance with the stylistic model that Denver University Law Review uses.
47. I presume that Sander means inter-racial or inter-ethnic marriage when he uses this term.
48. However, I find the concern for finding "true" racial minorities interesting.
49. A New York Times chart shows that only 9% of marriages are inter-racial and whites, both male and female, are least likely of any group to marry a person from a different racial or ethnic group of color.
50. Haeyoun Park, Who is Marrying Whom, N.Y. TIMES (Jan. 29, 2011), http://www.nytimes.com/interactive/2011/01/29/us/20110130mixedrace.html.
51. Thus, the larger point remains that people of color, whether racially mixed or not, will continue to engage with society in a different way than white people.
52. David Knowles, Obama on 'MythBusters': Top 5 Presidential Myths in Need of Busting, AOL NEWS (Oct. 18, 2010, 5:17 PM), http://www.aolnews.com/ 2010/10/18/obama-on-mythbusters-top-5-presidential-myths-in-need-of-bust/ (stating that among five myths about President Obama, two that persist include that he is a Muslim and that he was not born in the United States)
53. Liz Sidoti, That Brief Time Out from Heated Discourse? No More, CBSNEWS.COM (Feb. 13, 2011), http://www.cbsnews.com/stories/2011/02/13/ap/ politics/ main7346308.shtml (stating that at the Conservative Political Action Conference Idaho Representative
54. Raul Labrador joked that he "was fortunate enough to be an American citizen by birth, and [he had] the birth certificate to prove it," and pundit Ann Coulter suggested that President Obama "looked into becoming the President of Egypt [because n]obody would complain about him being a Muslim then")
55. Barack Obama Myths, BARACKOPEDIA.ORG, http://www.barackopedia.org/page/ Barack+ Obama+Myths (last visited Apr. 5, 2011)
56. Dispelling the myth that President Obama's books contain racially charged language and ridiculing the "terrorist fist bump" rumor.
57. The attempt to classify human races in any sort of definitive manner appears to meet with little agreement. In fact, most social scientists will agree only to the conclusion that any race classification system that emerges is based on the eye of the beholder.
58. RUTH BENEDICT, RACE: SCIENCE AND POLITICS 22-38(1959).
59. Not only is there no pure race, but differences within alleged racial groups outnumber those found across racial groups.
60. JOAN FERRANTE & PRINCE BROWN, JR., THE SOCIAL CONSTRUCTION OF RACE AND ETHNICITY IN THE UNITED STATES 132-133 (1998).
61. While it is certainly true that we can statistically identify certain phenotypes associated with certain groups, as well as certain diseases that seem more prevalent in one group than another, these phenotypes and diseases are never exclusive to a group.
62. DAVID M. NEWMAN, IDENTITIES AND INEQUALITIES 40-41 (2007).
63. See generally Adrian Piper, Passing for White, Passing for Black, 58 TRANSITION 4 (1992) (describing her experiences as a light-skinned black woman at an elite graduate school).
64. According to one prominent sociologist, "What makes a society multiracial is not the presence of physical differences between groups, but the attribution of social significance to such physical differences as may exist."
65. PIERRE L. VAN DEN BERGHE, RACE AND ETHNICITY: ESSAYS IN COMPARATIVE SOCIOLOGY 10 (1970).
66. MILTON M. GORDON, ASSIMILATION IN AMERICAN LIFE: THE ROLE OF RACE, RELIGION, AND NATIONAL ORIGINS 26-28 (1964).
67. Dr. Allen Counter, a prominent neurobiologist at Harvard, was strolling across Harvard Yard accompanied by students, wearing his usual attire of a high end business suit and tie, when university police stopped Counter to inform him that he was a bank robbery suspect.
68. Dr. Counter had an alibi, bore no resemblance to the suspect, and still the police insisted the students verify Dr. Counter's identity. Id. at 82.
69. According to Jacobson, "[E]ntire races have disappeared from view, from public discussion, and from modern memory, though their flesh-and-blood members still walk the earth."
70. MATTHEW FRYE JACOBSON, WHITENESS OF A DIFFERENT COLOR: EUROPEAN IMMIGRANTS AND THE ALCHEMY OF RACE 2 (1998).
71. Addition, from one geographical location to the next, the members of a racial group vary.
72. For example, the race classifications of the United States and Brazil vary so greatly that a person classified as black in the United States may be considered white in Brazil.
73. PIERRE L. VAN DEN BERGHE, RACE AND RACISM: A COMPARATIVE PERSPECTIVE 61-62, 71-72 (1967).
74. Social scientists assert that race is a social construct. By that they mean values and ideas about race arise and perpetuate themselves through social situations. As Montejano aptly puts it, "Although race situations generally involve people of color, it is not color that makes a situation a racial one. . . . [T]he race question . . . represents an arena of struggle and accommodation. . . . [I]t comes into being when these ideas and sentiments are publicly articulated and institutionalized."
75. DAVID MONTEJANO, ANGLOS AND MEXICANS IN THE MAKING OF TEXAS 1836-1986, at 4 (1987).
76. STEPHEN CORNELL & DOUGLAS HARTMANN, ETHNICITY AND RACE: MAKING IDENTITIES IN A CHANGING WORLD 81-82 (1998).
77. NEWMAN 27, at 27, 37.
78. MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY 44-53 (2003)
79. IAN HANEY LÓPEZ, WHITE BY LAW: THE LEGAL CONSTRUCTION OF RACE 116 (10th anniversary ed. 2006)
80. DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 518-21 (6th ed. 2008).
81. Michael Omi & Howard Winant, Racial Formations, in RACE, CLASS, AND GENDER IN THE UNITED STATES 12, 16-17 (Paula S. Rothenberg ed., 6th ed. 2004).
82. In research I have conducted, students of color increasing report that as white students attempt to place a student of color in a racial category, but cannot rely on the most obvious pheno types, white students will often ask, "So what are you?"
83. Deirdre M. Bowen, American Skin: Dispensing With Colorblindness and Critical Mass, 73 U. PITT. L. REV. (forthcoming 2011).
84. Omi and Winant refer to this process as "amateur biology," in which racial ideology suggests that one's abilities like athleticism, intelligence, and personality can be presumed from discernable physical characteristics associated with race.
85. ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959).
86. This master status becomes the lens through which all others view an individual regardless of the situation or setting.
87. Perhaps more significant, every master status accompanies a set of auxiliary traits.
88. An individual interacting with a person of a particular master status will assume that person possesses these traits and will react accordingly.
89. PATRICIA A. ADLER & PETER ADLER, CONSTRUCTIONS OF DEVIANCE 222 (4th ed. 2006).
90. In the case of race, a set of stereotypical traits are imputed on students of color because one's racial or ethnic status overrides all other statuses an individual may possess.
91. Theses auxiliary traits then determine how others will interact with that student.
92. CHARLES HORTON COOLEY, HUMAN NATURE AND THE SOCIAL ORDER 183-84 (1902).
93. White normativity is the standard by which all other racial groups find themselves measured.
94. Both institutionally and individually, "White norms" are the measure of what is acceptable, appropriate and merit-worthy.
95. Albert Murray, White Norms, Black Deviation, in THE DEATH OF WHITE SOCIOLOGY 96, 106-10 (Joyce A. Lander ed., 1998).
96. In the colorblind discourse, "whiteness [is] the unacknowledged dominant set of norms, aesthetics, and values from which all others are defined and judged."
97. Black Hawk Hancock, Put a Little Color on That!, 51 SOC. PERSP. 783, 788 (2008).
98. For example, students aware that professors (such as Sander) have lower expectations of them because they believe the students have lower credentials based on a white meritocracy system, are likely to perform less well.
99. Claude M. Steele, A Threat in the Air: How Stereotypes Shape Intellectual Identity and Performance, 52 AM. PSYCHOLOGIST 613, 620-21 (1997) [hereinafter Steele, A Threat in the Air] (demonstrating that highly domain attached individuals are at most risk for the negative effects of stereotype threat)
100. CLAUDE M. STEELE, WHISTLING VIVALDI: AND OTHER CLUES TO HOW STEREOTYPES AFFECT US 54-62 (2010) [hereinafter STEELE, WHISTLING VIVALDI]
101. Deirdre M. Bowen, Visibly Invisible, in PRESUMED INCOMPETENT (Angela Harris & Carmen Gonzales eds., University of Utah Press forthcoming 2011).
102. Goffman asserts that actors engage in a day to day dramaturgy anytime they interact with others.
103. Often the goal in any interaction is to create a "front" that idealizes the actor's persona to conform with the socially sanctioned norms of the particular situation the actor finds him/herself in and de-emphasize those traits that are considered aberrant. In order to establish these social identities, individuals will attempt, not always successfully, to control communication and information about themselves through performance. The performance in social interaction is known as impres sion management.
104. The difficulty with impression management is that an individual can only control so much of the other actors' perceptions. For example, a minority student may dress, speak, exhibit body language and facial expressions that are all socially exemplary, but there is little they can do to overcome the pre-conceived notions that the other actors hold about that individual based on the color of her skin, i.e. their auxiliary traits.
105. The result, as Goffman points out, is that one's master status, in this case, race, can be a stigma. In other words, "Any scientist can disprove all its facts and still leave the belief untouched.
106. The cost from carrying the daily burden of being a member of a racial group measures itself in a number of psychological and physiological ways.
107. Tené T. Lewis et al., Chronic Exposure to Everyday Discrimination and Coronary Artery Calcification in African-American Women: The SWAN Heart Study, 68 PSYCHOSOMATIC MED. 362, 365-66 (2006)
108. Finding a correlation between coronary artery calcification and chronic exposure to discrimination for African American women
109. Diane L. Rowley, Closing the Gap, Opening the Process: Why Study Social Contributors to Preterm Delivery Among Black Women, 5 MATERNAL & CHILD HEALTH J. 71, 71-74 (2001)
110. Finding that low birth weight babies among middle class college educated African American women mirror that of poor uneducated white women
111. David R. Williams et al., Racial/Ethnic Discrimination and Health: Findings from Community Studies, 93 AM. J. PUB. HEALTH 200, 200-08 (2003) (Pubitemid 36163375)
112. Finding that physiological responses to discrimination are the same as those associated with diseases.
113. Minority students must continually combat the stereotypes that others hold regarding racial groups.
114. This is particularly acute for under-represented students who attend colleges and universities with student bodies who 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.
115. One of the most significant casualties of under-represented minority students' management of stereotypes is the negative effect such stereotypes have on a student's performance.
116. 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.
117. Steele, A Threat in the Air 45, at 613-14, 617, 622, 627.
118. 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.
119. However, blacks performed half as well in the latter setting when faced with a stereotype threat.
120. 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.
121. 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.
122. Deirdre M. Bowen, Brilliant Disguise: An Empirical Analysis of a Social Experiment Banning Affirmative Action, 85 IND. L.J. 1197, 1225 (2010)
123. Finding that "students experience far more stigma at schools without affirmative action, contrary to what the color-blind idealists would argue. . . . On the other hand, affirmative action seems to be associated with reduced levels of racial stigma, both external and internal, for underrepresented minority students")
124. Devon W. Carbado & Mitu Gulati, Working Identity, 85 CORNELL L. REV. 1259, 1261-62 (2000) (arguing acknowlthat minorities subject to negative stereotype threat must "work their identities" at much greater rates with considerable costs and risks).
125. Richard Delgado, Rodrigo's Riposte: The Mismatch Theory of Law School Admissions, 57 SYRACUSE L. REV. 637, 644 (2007)
126. Showing that students of color even at second and third tier law schools don't seem to outperform their white peers even at schools where affirmative action plays a marginal role.
127. To be sure this line of discourse is a particular kind of colorblindness that packs a one-two punch.
128. As Bobo and Kluegel define it, Laissez Faire Racism allows whiteness as a privileged status to be replaced with equal opportunity in which persons of color are blamed for their cultural inferiority and allows whiteness invisibility in which the dominant group is not culpable for the "pipe line" problem as Sander calls it, nor the institutional racism that permeates educational institutions.
129. Lawrence Bobo & James R. Kluegel, Status, Ideology, and Dimensions of Whites' Racial Beliefs and Attitudes: Progress and Stagnation, in RACIAL ATTITUDES IN THE 1990S: CONTINUITY AND CHANGE 93, 95 (Steven A. Tuch & Jack K. Martin eds., 1997).
130. President Kennedy used the term affirmative action in an executive order designed to promote the integration of minorities into the workforce. Exec. Order No. 10,925, 26 Fed. Reg. 1977 (Mar. 6, 1961).
131. Fairness is a term used often in the anti-affirmative action camp. Richard Sander employs it in his article five times ("fair to say," "fair basis," "fair and class-neutral"), unfair one time ("unfair and offensive"), and fairness one time ("grounds of fairness").
132. NATHAN GLAZER, AFFIRMATIVE DISCRIMINATION: ETHNIC INEQUALITY AND PUBLIC POLICY 201 (1975).
133. Glazer states: We have created two racial and ethnic classes in this country to replace the disgraceful pattern of the past in which some groups were subjected to an official and open discrimination.
134. The two new classes are those groups that are entitled to statistical parity in certain key areas on the basis of race, color, and national origin, and those groups that are not.
135. We are indeed a nation of minorities; to enshrine some minorities as deserving of special benefits means not to defend minority rights against a discriminating majority but to favor some of these minorities over others.
136. Hodding Carter, Jr. used the term in the December 17, 1955, edition of the Saturday Evening Post, accusing the NAACP of "reverse racism" in response to the Brown v. Boardd of Education ruling.
137. Hodding Carter , Jr., Racial Crisis in the Deep South, SATURDAY EVENING POST, Dec. 17, 1955, at 26.
138. BLACK ON WHITE: BLACK WRITERS ON WHAT IT MEANS TO BE WHITE (David R. Roediger ed., 1999)
139. Arguing that white students do not seem to grasp that different racial narratives even exist or possess the skills to process them.
140. It is not the idea of meritocracy in of itself that is objectionable.
141. It is the institutional application of a meritocracy that has benefited and continues to benefit the privileged elite.
142. Devon W. Carbado & Cheryl I. Harris, The New Racial Preferences, 96 CALIF. L. REV. 1139 (2008).
143. Ethnic groups are often accorded specific cultural traits that set them apart into a subculture within a larger cultural and social system.
144. Melvin M. Tumin, Ethnic Group, in A DICTIONARY OF THE SOCIAL SCIENCES 243-44 (Julius Gould & William L. Kolb eds., 1964).
145. RICHARD D. ALBA, ETHNIC IDENTITY: THE TRANSFORMATION OF WHITE AMERICA 16-19 (1990)
146. RICHARD D. ALBA, ITALIAN AMERICANS: INTO THE TWILIGHT OF ETHNICITY 17 (1985)
147. Fredrik Barth, Introduction, in ETHNIC GROUPS AND BOUNDARIES: THE SOCIAL ORGANIZATION OF CULTURE DIFFERENCE 15-16 (Frederick Barth ed. 1969)
148. MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY 389 (Guenther Roth & Claus Wittich eds., Ephraim Fischoff et al. trans., 1968) (1922).
149. Sociologists Helen and Everett Hughes see the social creation of ethnic differences in this way: An ethnic group is not one because of the degree of measurable or observable differences from other groups; it is an ethnic group, on the contrary, because the people in it and the people out of it know that it is one; because both the ins and outs talk, feel, and act as if it were a separate group.
150. EVERETT CHERRINGTON HUGHES & HELEN MACGILL HUGHES, WHERE PEOPLES MEET: RACIAL AND ETHNIC FRONTIERS 156 (1952).
151. Israel Zangwill introduced this phrase in the title to his play "The Melting Pot," which opened in Washington, D.C. in 1908.
152. Zangwill penned the play during the largest wave of immigration the U.S. had experienced.
153. The immigrants were overwhelmingly Irish, Germans, Italians, and Eastern Europeans.
154. Wiliam Booth, One Nation, Indivisible: Is it History?, WASH. POST, Feb. 22, 1998, at A1, available at http://www.washingtonpost.com/wp-srv/national/ longterm/meltingpot/ melt0222.htm.
155. For example, Italian, Poles, Irish, Greeks and Jewish immigrants experienced significant hostility by the native born Anglo-Saxon race who viewed themselves as 'real' Americans.
156. Mary C. Waters, Optional Ethnicities: For Whites Only?, in ORIGINS AND DESTINIES 445 (Silvia Pedraza & Rubén Rumbaut eds., 1996)
157. However, subsequent generations of those immigrants have successfully moved up the economic ladder due to educational and economic opportunities, beginning with the Irish in the mid 1800s. Euro-ethnic groups previously "racialized" as non-white, and therefore inferior, began to be included in the American social construct of whiteness. What was once a nonwhite inferior racial group of European descent now became an ethnic group within the white race.
158. The same educational and economic opportunities were not afforded to non-European racial minorities.
159. KAREN BRODKIN, HOW JEWS BECAME WHITE FOLKS AND WHAT THAT SAYS ABOUT RACE IN AMERICA 25, 27, 41-42 (1998).
160. As Haney López points out, the transformation from race to ethnicity was intended to apply only to those boundaries that divided people who could be clearly classified as whites, i.e., Southern and Eastern Europeans often of Jewish descent.
161. DAVID R. ROEDIGER, WORKING TOWARD WHITENESS: HOW AMERICA'S IMMIGRANTS BECAME WHITE 22 (2005).
162. STEVE FENTON, ETHNICITY 68 (2003)
163. RICHARD JENKINS, RETHINKING ETHNICITY: ARGUMENTS AND EXPLORATIONS 23-24 (1997).
164. NATHAN GLAZER & DANIEL PATRICK MOYNIHAN, BEYOND THE MELTING POT: THE NEGROES, PUERTO RICANS, JEWS, ITALIANS, AND IRISH OF NEW YORK CITY (1963).
165. This language of cultural pathology soon found use by neoconservatives during a time when jobs and wages were decreasing for white workers.
166. While espousing the ideal of equality for all, neoconservatives ensured the discourse of meritocracy took hold above all else.
167. Thus, African Americans who might benefit from affirmative action emerged not as victims of monopolized power and white privilege, but as unqualified beneficiaries of affirmative action.
168. According to this notion, black people lacked merit because of their own doing, not because of blocked access to opportunity
169. Cornel West, Affirmative Action in Context, in THE AFFIRMATIVE ACTION DEBATE 32-33 (George E. Curry ed., 1996).
170. Daniel P. Moynihan, The New Racialism, ATLANTIC MONTHLY, Aug. 1968, at 35, 37-38
171. Discussing that defining "White" as a race is a difficult, if not impossible task for the legal system.
172. This refrain appears in Sander's piece when he says schools are under huge political pressure to create racial diversity but not socioeconomic diversity.
173. Sander, at 664. It is worth pointing out why racial diversity remains a key priority
174. However, pointing out the worth of racial diversity does not mean that socioeconomic diversity should not receive its due.
175. The vital point is that race and socioeconomic diversity are important at their intersection and at their divergence.
176. TERRY EASTLAND, ENDING AFFIRMATIVE ACTION: THE CASE FOR COLORBLIND JUSTICE 115-16, 182-83 (1996)
177. Arguing that affirmative action causes reverse discrimination, against white men particularly, and that social engineering causes resentment.
178. GUNNAR MYRDAL, AN AMERICAN DILEMMA: THE NEGRO PROBLEM AND MODERN DEMOCRACY (1944) (detailing the struggle of the African American's ability to fully participate in American society during the 1940s).
179. 347 U.S. 483 (1954).
180. Liberal race theory, developed in the early 1900s, rejected the notion that physical characteristics could determine one's talents and abilities.
181. Specifically, this theory sought to dispel the idea that nature aligned racial groups into an indisputable hierarchy.
182. Physical characteristics associated with race were nothing more than physiognomy.
183. Haney López 21, at 996-97.
184. In fact, three forces made clear that structural, not individual, racism needed to be addressed.
185. First, a New York Times best selling "paperback," the National Advisory Commission on Civil Disorders, issued its report in 1968 outlining the grim realities and effects of every aspect of African American life from overt discrimination to appalling housing conditions, substandard schools, blocked access to health care and employment, police abuses, and police harassment.
186. The Commission issued the report, known as the Kerner Report, in the hopes of explaining the wave of riots that took hold in urban areas throughout the United States.
187. The report made clear that the poverty and overall punishing existence of African Americans lay definitively in the hands of white society.
188. NAT'L ADVISORY COMM'N ON CIVIL DISORDERS, REPORT OF THE NATIONAL COMMISSION ON CIVIL DISORDERS (1968), available at http://www. eisenhowerfoundation.org/docs/kerner.pdf
189. Second, the report validated the work of Stokely Carmichael and Charles Hamilton in which they asserted in Black Power that the stark conditions in the African American Community were a direct function of institutional racism.
190. STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF LIBERATION IN AMERICA 4 (1967).
191. Finally, the need to address structural racism came even earlier in 1965 with Dr. Martin Luther King's assessment: At the root of the difficulty in Negro life is pervasive and persistent economic want.
192. To grow from within the Negro needs only fair opportunity for jobs, education, housing and access to culture.
193. To be strengthened from the outside requires protection from the grim exploitation that has haunted it for 300 years.
194. Dr. Martin Luther King, Jr., Address at Abbott House, Westchester County, New York (Oct. 29, 1965), available at http://www.directblackaction.com/museum/ shmuseum/MLKJR.htm.
195. In 1964, Congress passed the Civil Rights Act that banned discrimination in public places, schools, and employment. Civil Rights Act of 1964, Pub. L. 88-352, 78 Stat. 241 (codified as amended in sections of 42 U.S.C.).
196. Congress also passed the Voting Rights Act in 1965 to prevent barriers to minorities voting. Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 445 (codified as amended at 42 U.S.C. §§ 1971, 1973 to 1973bb-1 (2006)).
197. In addition, Congress passed the Civil Rights Act of 1968 to eliminate discrimination in the sale or rental of housing.
198. Similarly, courts found that the Constitution required the use of race conscious means to undue discrimination embedded in social institutions. Indeed, in N.C. State Bd. of Ed. v. Swann the unanimous Court stated: "Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy." 402 U.S. 43, 46 (1971).
199. Haney López, at 1004.
200. Richard Delgado, 1998 Hugo L. Black Lecture: Ten Arguments Against Affirmative Action-How Valid?, 50 ALA. L. REV. 135 (1998) (discussing the arguments against affirmative action).
201. 438 U.S. 265 (1978). Grounding his decision in the color-blind ideal, Justice Powell claimed
202. [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.
203. Steven A. Holmes, The Nation; Mulling the Idea for Affirmative Action for Poor Whites, N. Y. TIMES, Aug. 18, 1991, available at http://www.nytimes.com/ 1991/08/18/weekinreview/thenation- mulling-the-idea-of-affirmative-action-for- poor-whites.html.
204. RICHARD D. KAHLENBERG, THE REMEDY: CLASS, RACE, AND AFFIRMATIVE ACTION (1996) (providing support for Holmes' ideas regarding affirmative action).
205. Arguing that affirmative action was a weak response to the structural problems of racism and white supremacy and corporate power in the United States).
206. As Tim Wise writes, by obscuring the way in which race permeates interactions at every stage of a student's life, and instead focusing on colorblindness- by treating low income students of color the same way as low income students who do not face racism or treating these students like students of higher SES-we ignore the social context within which low income students of color (or for that matter, high income students of color) must learn.
207. "[The teacher] would not be educating the actual child, but rather, just a theoretical child, divorced from his or her social reality.
208. However, this model serves to reinforce white domination, because white privileges and the ways in which these structures at every level preference whites never get interrogated.
209. Instead, we can adopt the passive language of "less fortunate" and "underprivileged." Understandably, this discourse is comforting because one never has to address a power imbalance.
210. The de-contextualization of race is only part of the story that Sander relies on.
211. The underlying theme of Sander's question, shouldn't class trump race, returns to Harris's concept of whiteness as property.
212. While I shall explore this idea in more detail in section three, it remains a significant thread at this stage too. The privilege of whiteness is that it is not only an object that possesses the right to exclude, but also an object to be deployed as a resource. Cheryl I.
213. Harris, Whiteness as Property, 106 HARV. L. REV. 1707, 1714, 1733 (1993).
214. Writing of whiteness as a resource worth deploying in order to achieve access to education, Harris was prescient: "Whiteness [is] an 'object' over which continued control was-and is-expected."
215. Bowen 49, at 1220-25 (findings show that URM students admitted on the basis of conventional credentials alone in anti-affirmative action states encounter more hostility than their counterparts admitted in affirmative action states).
216. The sample includes wealthy students as well as those from low SES.
217. He also mentions Asians as a group but correctly observes the oversimplification of including a whole continent of people from a variety of ethnicities into one classification.
218. Recall that the laissez faire racism model "encompasses an ideology that blames blacks themselves for their poorer relative economic standing, seeing it as a function of perceived cultural inferiority.
219. Olivas takes issue with words like "pool" and "pipeline" to describe the available population of URM students available for higher education, preferring the term "river." While pool and pipeline connote finite sources of students, river allows for the possibility of a variety of sources in which a student could enter the river-tributaries, ponds, puddles, streams. The metaphor could go on and on, but the point is, long before the stagnate population of URM college applicants, we might consider how creative we are in bringing individuals to the proverbial water.
220. Michael A. Olivas, Law School Admissions After Grutter: Student Bodies, Pipeline Theory, and the River, 55 J. LEGAL EDUC. 16, 16-18 (2005).
221. As a point of reference, the 2010 census reports the percentage of people living in poverty in 2009 as follows: 9.4% of all non-Hispanic White (18.5 million people)
222. 12.5% of all Asian- American (1.7 million people)
223. 25.3% of all Hispanic (of any nationality) (12.4 million people) 24.2% of all American Indian and Alaska Native
224. 25.8% of all African-American (9.9 million people).
225. CARMEN DENAVAS-WALT ET AL., U.S. CENSUS BUREAU, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2009, at 15 tbl.4 (2010), available at http://www.census.gov/prod/2010pubs/p60-238.pdf.
226. As Tim Wise points out, most would agree that until Brown v. Board of Education, African Americans did not have the same opportunities for educational equality as whites, yet he notes in a 1962 poll that 90% of whites believed that they did. WISE 22, at 39.
227. To state more plainly, Sander claims that a universal SES affirmative action program would benefit the truly needy, those students of all shades whose parents do not possess the status, income, and wealth of the upper echelons of the college educated elite. Therefore, I would be curious to see the representation of blacks and Hispanics in the 50th-90th percentile, bottom half and bottom quartile, as comparison groups to the control group of whites in the top 10%, or top quartile or top half of the SES.
228. That way, the reader could get a clearer sense of the disparity based on the intersection of race and class against economically privileged whites.
229. A similar exercise would use blacks and Hispanics as the control group in the upper SES echelons against lower SES whites as well as lower SES blacks and Hispanics to examine just how the representation over various groups is presented.
230. Data from a 2001 report reveals some sense of the intersection of race and class.
231. PATRICK T. TERENZINI ET AL., COLL. ENTRANCE EXAMINATION BD., SWIMMING AGAINST THE TIDE: THE POOR IN AMERICAN HIGHER EDUCATION (2001), available at http://professionals.collegeboard.com/profdownload/pdf/rdreport200-3918.pdf.
232. In 1992, low SES students entering post-secondary education were more likely to be members of underrepresented racial/ethnic groups than their high SES counterparts.
233. Furthermore, 76% of low SES students have parents with a high school diploma or less compared to 0.4% of high SES students and 27% of low SES students live with a single mother versus 6% of high SES students.
234. Relatedly, a low SES student is more likely to make a decision to attend college without conferring with a parent and more likely to attend a public two-year institution, 56% compared to 23% of high SES students.
235. After examining the association between SES and race in the high school classes of 1972, 1982, and 1992, Bernal, Cabrera, and Terenzini (1999) found the correlation between the two ranged from .20 to .27.
236. This low level of association means that 93 to 96 percent of the variance among high school students' ethnicity or SES status has nothing to do with either race or SES.").
237. Put simply, one variable is not duplicative of the other in explaining behavior.
238. WILLIAM G. BOWEN & DEREK BOK, THE SHAPE OF THE RIVER: LONG-TERM CONSEQUENCES OF CONSIDERING RACE IN COLLEGE AND UNIVERSITY ADMISSIONS (1998).
239. Michael A. Olivas, Constitutional Criteria: The Social Science and Common Law of Admissions Decisions in Higher Education, 68 U. COLO. L. REV. 1065, 1095, 1117 (1997)
240. Noting that the anti-affirmative action camp continues to believe that meritocratic measures, such as higher scores on tests, translate into more deserving applications, and "that reliance upon 'objective' measures and statistical relationships constitutes a fair, race-neutral process").
241. The evidence for this proposition is exceedingly thin; indeed, a substantial body of research and academic common practice refutes it.
242. Richard H. Fallon, Jr., Affirmative Action Based on Economic Disadvantage, 43 UCLA L. REV. 1913, 1913-14 (1996)
243. Arguing that economic surrogates are poor proxies for race
244. Deborah C. Malamud, Class-Based Affirmative Action: Lessons and Caveats, 74 TEX. L. REV. 1847, 1850 (1996)
245. Arguing that economic measures are ineffective replacements for racial-based admissions programs.
246. WILLIAM T. DICKENS & THOMAS J. KANE, RACIAL AND ETHNIC PREFERENCE (1996), available at http://www.brookings.edu/papers/1996/11race-kane.aspx.
247. Pointing out the effects of the top law schools not using affirmative action.
248. Sander rightly observes that recent DOE figures show that many of the blacks admitted at top schools were Caribbean, biracial, or African immigrants; and few were descendants of American slaves
249. My response is twofold. First, these types of students are not exempt from the contemporary contextualization discussed infra section one. Second, while their scores may be higher than other minorities landing them a place in the most elite schools, it could be that they are not experiencing the social contingencies that create negative stereotype threat and underperformance.
250. We must redouble our efforts to eliminate much earlier in the pipeline the social contingencies of stereotype threat of other students.
251. Most importantly, we must remember that affirmative action is built on diversity theory now, not reparation.
252. The diversity contribution remains just as valid for student immigrants.
253. To suggest otherwise, is to return to the theme of privileged black suspicion.
254. Sander discusses the grand success of UCLA's universal SES affirmative action plan in which UCLA had greater diversity than ever before-yet he concedes that diversity consisted of mostly Asian Americans. Id. at 29. His analysis above seems remarkably similar and discouraging.
255. Elizabeth Rindskopf Parker & Sarah E. Redfield, Law Schools Cannot Be Effective in Isolation, 2005 BYU EDUC. & L.J. 1, 43 fig.10 (2005).
256. According to ABA data on law school applicants for 2011, 151 Native American or Alaskan Natives applied to law school, representing a 20.1% drop from last year, 3,922 African Americans applied, a drop of 9.7%, Hispanics included 2516 applicants, dropping 13.9% while 23,900 whites applied, with a 19.8% drop from 2010. Data on file with author.
257. Conrad Johnson et al., DISTURBING TREND L. SCH. DIVERSITY, http://blogs.law.columbia.edu/salt/ (last visited June 6, 2011) (A collaboration between the Society of American Law Teachers (SALT) and Lawyering in the Digital Age Clinic at Columbia Law School).
258. MELVIN L. OLIVER & THOMAS M. SHAPIRO, BLACK WEALTH/WHITE WEALTH: A NEW PERSPECTIVE ON RACIAL INEQUALITY 30 (10th anniversary ed. 2006).
259. I use the term validity here to signify that scientifically SES does measure the same thing from one racial category to the next.
260. THOMAS D. COOK & DONALD T. CAMPBELL, QUASI-EXPERIMENTATION: DESIGN & ANALYSIS ISSUES FOR FIELD SETTINGS (1979)
261. Explaining that validity refers to a variable measuring what it is supposed to represent in the real world.
262. Social capital refers to the resources obtainable within the social structure of a person's community-norms, social networks, and interpersonal relationships-that contribute to personal development and attainment.
263. James S. Coleman, Social Capital in the Creation of Human Capital, 94 AM. J. SOC. 95, 119 (1988).
264. Brian K. Bucks et al., Changes in U.S. Family Finances from 2004 to 2007: Evidence from the Survey of Consumer Finances, 95 FED. RES. BULL. A1, A11 tbl.4 (2009).
265. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2011, at 150 tbl.228 (2011).
266. Upper middle class in the United States was estimated as household incomes of over $122,000 in 2006 according to analysis by the Tax Foundation, which relied on census data.
267. GERALD PRANTE, TAX FOUND., NEW CENSUS DATA ON INCOME GIVES A WELCOME DOSE OF FACT CHECKING TO "MIDDLE-CLASS" RHETORIC, 2 tbl.1. (Sept. 11, 2007), http://www.taxfoundation.org/files/ff102.pdf.
268. U.S. CENSUS BUREAU, STATISTICAL ABSTRACT OF THE UNITED STATES: 2011, at 454 tbl.692 (2011).
269. The numbers reflected above actually capture the percentage of the populations with household incomes above $100,000 because of how the census created income categories.
270. Oliver and Shapiro would agree with Sander that the black middle class is central to the argument of racial equality. They would also agree that educational achievement, earnings, and occupation are the foundation for those blacks who have found their way into the middle class.
271. However, I suspect Oliver and Shapiro's line of thinking goes far beyond where Sander would like to go when they write, "[A]n accurate and realistic appraisal of the economic footing of the black middle class reveals its precariousness, marginality, and fragility." OLIVER & SHAPIRO
272. Russell V. Lenth, Some Practical Guidelines for Effective Sample- Size Determination, 55 AM. STATISTICIAN 187, 187 (2001)
273. An under-sized study can be a waste of resources for not having the capability to produce useful results . . . .
274. A major flaw with this particular analysis is using education alone as a measure of SES.
275. It dismisses the potential assets, resources, networks, neighborhoods and income available to a student.
276. Thus, educational attainment fails to accurately reflect the disparity of income among racial groups despite accomplishing the same level of educational attainment as whites. Furthermore, it discounts across racial/ethnic groups the occupational choices available despite having the same educational level.
277. I use the plural of the word preference because even white students receive some sort of preference in the law school admission process.
278. The essence of Sander's argument is that reverse discrimination is at play during the admission process.
279. Less qualified rich minority students are taking the place of more qualified, poor white students.
280. Using the University of Michigan as a case in point, Tim Wise points out all of the preferences that were available to white students.
281. Certainly, URM students had 20 points added to their scores, but so did low income students and students who attended low resource schools-regardless of race.
282. Those points did not have a cumulative effect. Id. Thus, students from each of these three categories, no matter their race, received 20 points.
283. However, the point bonanza did not stop there for white students. If you happened to be a poor white student from Michigan's mostly rural, mostly white upper peninsula, 16 points were added to your score for a total of 36 points.
284. These points were cumulative.
285. The best for which a poor black student from Detroit could hope was ten points for being a Michigan resident, for a total of 30 points.
286. Points for wealthy white students were also in the offing.
287. The University awarded up to ten points for attending an academically challenging school and eight points for choosing an especially demanding course load.
288. Minorities were least likely to have access to these points because 84 percent of whites attended an academically challenging school while minorities are placed in the more challenging courses sixty percent less than are white stu dents.
289. But wait, there is more. Four points went to legacy applicants-again, mostly white students- given the history of educational access in the United States.
290. Five additional points could be had for leadership and service.
291. At the risk of sounding like a broken record, these points were more likely available to wealthy white students who had the opportunities and resources to engage in leadership and service activities like spending spring break in Mexico building houses for Habitat for Humanity.
292. Students with athletic ability received the same number of points as students who received twenty points for affirmative action.
293. Similarly, 20 points could be had under the ubiquitous category known as provost's discretion for students with some special quality not previously covered.
294. It is not hard to imagine that the special qualities not previously covered might include the types of characteristics passed down through opportunities made available through assets (as opposed to income).
295. As Oliver and Shapiro observed, "The potential for assets to expand or inhibit choices, horizons, and opportunities for children emerged as the most consistent and strongest common theme in our interviews.
296. OLIVER & SHAPIRO 115, at 86. What Sander's data cannot tell us is the extent to which minorities in the upper echelons had wealth.
297. Rather, as Wise points out, Sander focuses on some of the facts above to explain bias in favor of wealthy applicants without acknowledging wealthy white applicants may benefit disproportionately.
298. I imagine the difficulty in doing this analysis is a function of the small sample number Sander had to rely on in completing his standardized index based on race.
299. Only 33 schools had the minimum five racial minorities per category needed to complete the analysis.
300. Thus, I return to my earlier point.
301. We have too few minority students in law school in the first place.
302. A survey of the top twenty-five law schools reveals that eleven use legacy admissions programs.
303. Two schools refused to answer the question regarding legacy admissions.
304. Data on file with author.
305. DANIEL GOLDEN, THE PRICE OF ADMISSION: HOW AMERICA'S RULING CLASS BUYS ITS WAY INTO ELITE COLLEGES-AND WHO GETS LEFT OUTSIDE THE GATES 4 (2006).
306. Golden reveals that top colleges and universities employ the practice of admitting children of alumni, wealthy donors, celebrities and politicians-some with substandard academic credentials-over applicants with higher SAT scores or grades who are without wealthy parents or political connections.
307. These preferential admissions disproportionately benefit wealthy white applicants, and the number of admitted wealthy white applicants outpaces students of color admitted under affirmative action programs.
308. Examples of such preferential treatment include Harvard admitting Al Gore's son-despite his unimpressive record and Princeton accepting President George W. Bush's niece after she submitted her application a month late.
309. Additionally, Harvard accepted a real estate developer's son with academic numbers below the school's standard, but where the develop ment office liked some other numbers-namely his father's pledged contribution of $2.5 million.
310. Other schools employing this practice include Duke, Brown, Notre Dame, the University of Virginia, Stanford, and Amherst. 56, 117, 122-23, 288.
311. See generally RICHARD D. KAHLENBERG, AFFIRMATIVE ACTION FOR THE RICH: LEGACY PREFERENCES IN COLLEGE ADMISSIONS (2010).
312. For-profit colleges offer many more non-degree programs than legitimate degree programs.
313. These non-degree programs take less time to complete and cost the college less to run (between hundreds and thousands of dollars), but do not yield gainful employment.
314. In short, the costs of these programs are disproportionately higher than the income students can expect to receive upon graduation.
315. Aaron N. Taylor, "Your Results May Vary": Protecting Students and Taxpayers through Tighter Regulation of Proprietary School Representations, 62 ADMIN. L. REV. 729, 753 (2010)
316. Proprietary school students tend to be poorer and older than students at traditional schools.
317. They are also more likely to be first in their families to go to college, be female, and to belong to a racial or ethnic minority group." (footnotes omitted)).
318. Telephone survey with law schools. Data on file with author.
319. WILLIAM JOSEPH FEDERER, AMERICA'S GOD AND COUNTRY: ENCYCLOPEDIA OF QUOTATIONS 317 (2000).
320. The words of my gun toting, Palin loving, blue collar working, but ever so charming cousin echo in my ears: "For God's sake, they got one of their own as President.
321. What more do they need?
322. Although I call the larger issue at hand here-who has access to law school or higher education-a pipeline problem, I don't think that Sander would agree.
323. He prefers to slice off the issue at the stage of applications and focus on who gets accepted to law school.
324. WILLIAM JULIUS WILSON, MORE THAN JUST RACE: BEING BLACK AND POOR IN THE INNER CITY 28 (2009).
325. While other groups use an immigration narrative to explain that individual hard work and merit is the road to middle class, six million African Americans migrated from the South to the North and West in hopes of better opportunities between 1915 and 1970, but this story has been left largely as landscape.
326. ISABEL WILKERSON, THE WARMTH OF OTHER SUNS: THE EPIC STORY OF AMERICA'S GREAT MIGRATION 8-13 (2010).
327. However, it is this migration that informed housing and transportation policy in the North and West
328. Pointing out that freeways allowing for white exodus to federally subsidized suburban neighborhoods, created barriers between black and white city neighborhoods, and blocked access for black neighborhoods to city business districts.
329. In other words, black mobility is severely hampered by the neighborhood in which they live, their job prospects and stability, their job income disparity, and the quality of education available to their children.
330. Most importantly, the inheritance of this wealth transmits cultural capital, provides cash at key milestone events (like a private school elementary and/or secondary education), and through traditional bequests that allow for investment and future wealth attainment.
331. Recall that Sander's data did not capture this variable.
332. It reminds me of a certain Harvard Law Review editor who went on to be President of the United States.
333. He has to be guilty of something. He has to have gamed the system.
334. He is not really allowed to be president because he hasn't proved his citizenship.
335. In fact, a poll released on February 15, 2011 shows only 28% of likely Republican primary voters firmly believe that Obama was born in the United States.
336. Scot Kersgaard, Poll: 51 Percent of Republicans Think Obama Was Not Born in U.S., AM. INDEP. (Feb. 15, 2011, 6:19 PM), http://www.americanindependent. com/169644/poll-51- percent-of-republicans-think-obama-was-not-born-in-u-s.
337. In fact, even after he released his long form birth certificate clearly revealing his birth on U.S. soil, detractors created new suspicions around Obama's educational credentials.
338. Josh Voorhees, Trump Pivots from Obama's Birth Certificate to College Grades: Says President Needs to Explain How He Got into Harvard,SLATE. (Apr. 27, 2011, 2:22 p.m.), http://slatest.slate.com/posts/2011/04/27/obama-s-college- grades-trump-wants-to-see-president-s -transcript.html
339. THE WHITE HOUSE PROJECT, THE WHITE HOUSE PROJECT REPORT: BENCHMARKING WOMEN'S LEADERSHIP 28 (2009), available at http://www.thewhitehouseproject.org/ documents/ Report.pdf (reporting on the increased numbers of women of color in management and professional positions).
340. At minimum, I sincerely hope these students will be inspired to eliminate preference and institutional racism that occurs in the tax code, mortgage lending decisions, educational tracking, the criminal code, and employment settings to name a few. As Bowen and Bok found, students admitted under affirmative action were more likely to contribute to the communities from whence they came.
341. This study was exploratory and had a relatively small sample.
342. However, it did cover students from 28 states, including the four states with anti-affirmative action policies.
343. Most importantly, the study does not lay claim to making any causal statements.
344. It suggests correlations and encourages more study.
345. Nonetheless, it raises questions about the validity of the harm of stigma at affirmative action's hand.
346. Despite having achieved GPAs and SAT scores comparable or superior to their white counterparts, and most especially their legacy counterparts, minority students are more likely to encounter a stigma.
347. Sander also touts the invisibility of SES preferences.
348. I am not sure if those who lived in the type of poverty that Sander's SES preferences are designed to help would necessarily agree.
349. Vivyan Adair, Branded with Infamy: Inscriptions of Poverty and Class in the United States, 27 SIGNS 451, 456-458 (2002)
350. Highlighting a study showing the added stigma that those in poverty often bear through the physical signs of poverty throughout their lives.
351. Scars, limps, missing teeth from lack of medical care, exhaustion, poor skin, emaciation or obesity from lack of proper nutrition, poor fitting shoes, insufficient winter clothing, and glasses taped together).
352. In fact, I recall riding the NYC subway last summer when three young men entered the car.
353. The two white males were dressed in quality suits, nicely tailored to fit their shapes, fancy ties, and shiny shoes.
354. Their conversation clearly indicated they were interns at some sort of finance company.
355. The third male, an African American, wore an ill-fitting suit, slightly worn, a tie that had seen better days, and scuffed shoes.
356. His eyeglasses were held together in one corner by a paperclip.
357. One of the white males jokingly inquired about what was on his eyeglasses.
358. The black male tried to bat his hand away, but the white male insisted on inspecting his glasses and proceeded to mock him. Not being middle class, not being privileged is not invisible.
359. Or perhaps Sander was thinking of the invisibility of white people receiving the preference in much the same way that legacy admits are mostly white and perceive themselves as invisible.
360. ANDREA GUERRERO, SILENCE AT BOALT HALL: THE DISMANTLING OF AFFIRMATIVE ACTION 163 (2002).
361. Peter Arcidiacona et al., Does Affirmative Action Lead to a Mismatch? A New Test and Evidence 19-25 (Econ. Research Initiatives at Duke, Working Paper No. 27, 2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1384022
362. Arguing that universities would have to have more private information not shared with students to create mismatch and highlighting studies that indicate that even with that information, no conclusions regarding mismatch can be made
363. Doug Williams, Does Affirmative Action Create Educational Mismatches in Law Schools? 11-14 (Apr. 13, 2009) (unpublished manuscript), available at http://econ.duke.edu/~hf14/ERID/Williams.pdf
364. Arguing that bar passage data is too flawed to draw conclusive evidence.
365. The data does not seem to support Sander's assertion that the evidence is mounting as to the existence of mismatch.
366. Steele refers to these students as vanguard students.
367. Suggesting a variety of instances where minorities have handicapped credentials.
368. Steele refers to these as identity contingencies. Identity contingencies are conditions unique to your social identity that you must confront and cope with in a setting in order to function
369. They emerge from the racial hierarchy and stereotypes that occur in any given situation based on how it is organized.
370. The reality of stereotype threat also made the point that places like classrooms, university campuses, standardized-testing rooms, or competitive running tracks, though seemingly the same for everybody, are, in fact, different places for different people.
371. Depending on group identity, different people would simply have different things to contend with in these places-different stereotype threats, different ambiguities, about how to interpret their experience, different goals and preoccupations.
372. Sander might be interested to know that top white male math performers underperformed in a challenging math test compared to a control group when the experimental group where faced with the stereotype that Asian Americans tended to do better on the test.
373. Thomas Ross, The Rhetorical Tapestry of Race: White Innocence and Black Abstraction, 32 WM. & MARY L. REV. 1, 38 (1990).
374. Bowen et al. found that the majority of low SES college students were white.
375. WILLIAM G. BOWEN ET AL., CROSSING THE FINISH LINE: COMPLETING COLLEGE AT AMERICA'S PUBLIC UNIVERSITIES (2010)
376. Giving a detailed account of education attainment in relation to such factors as race, gender, and SES.
377. Evan Thomas & Pat Wingert, Minority Report, NEWSWEEK, March 1, 2010 at 42
378. 539 U.S. 306, 330 (2003).
379. Bowen, American Skin, at 5.
380. Critical mass was a key component of why affirmative action was needed. A certain number of students were needed in a classroom to ensure that others could see the variety of experiences and viewpoints that students in that racial or ethnic
381. Gottfredson et al. have found that without perspective taking, it is difficult to diffuse racial stereotypes.
382. Nisha C. Gottfredson et al., Does Diversity at Undergraduate Institutions Influence Student Outcomes?, 1 J. DIVERSITY HIGHER EDUC. 80, 82 (2008).
383. Charles M. Blow, A Nation of Cowards, N.Y. TIMES, Feb. 20, 2009, at A21.
384. Discussing poll results that show a discrepancy in opinions about race and racism in the U.S.
385. Ruth Frankenberg, The Mirage of an Unmarked Whiteness, in THE MAKING AND UNMAKING OF WHITENESS 72, 76 (Birgit Brander Rasmussen et al. eds., 2001).
386. A claim Sander certainly makes as to wealthy minorities against poor whites, as well as his assertion that race-based affirmative action is no longer relevant.
387. DAVID THEO GOLDBERG, RACIAL SUBJECTS: WRITING ON RACE IN AMERICA 55 (1997).
388. MARY C. WATERS, ETHNIC OPTIONS: CHOOSING IDENTITIES IN AMERICA 6 (1990).
389. Ashley W. Donane, Jr., White Identity and Race Relations in the 1990s, in PERSPECTIVES ON CURRENT SOCIAL PROBLEMS 151 (Gregg Lee Carter ed., 1997).
390. OGLETREE, at 98-100.
391. Orlando Patterson, For African Americans, A Virtual Depression-Why, THE NATION, July 19, 2010 at 93.
392. Patterson writes that while white America has experienced the Great Recession, most African-Americans have suffered something as desperate as the Great Depression.
393. Unemployment rates seem unimaginable in the double digits for African Americans.
394. Patterson finds the current economic crisis has served to open a deeper chasm between the socioeconomic wellbeing of blacks and whites.
395. He observes on nearly all measures, income, wealth, educational attainment, homeownership, foreclosures, the gains from the 1990s have been eradicated.
396. Income has declined.
397. Even more disturbing for Patterson is the growth in gulf between white and black wealth.
398. Black median wealth barely increased in the last 25 years stagnating at $5000 in 2007.
399. White median wealth quadrupled during this time period, skyrocketing to $100,000.
400. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973)
401. Finding no fundamental right to education.
402. And, as discussed in depth earlier, the consequences of not having access to a particular type of education or labor market, has generational effects in wealth and SES attainment.
403. See supra Part III (enabling whites to maintain a higher SES because wealth is inherited by future generations, invested, and increased, while blacks and Hispanics, generally, are unable to catch up to the same level of wealth by the same means).
404. Not only do students of color have to worry about confirming a negative stereotype, which results in underperformance, they are still trying to master the concepts and skills a professor is teaching them.
405. In other words they are multi-tasking in a high stakes setting. Steele states such a situation has serious consequences for minorities because it is a chronic situation in which cardiovascular and working memory effects occur. Overtime, enduring chronic negative stereotype threat can create serious health consequences for African Americans-even in the high SES group.
406. STEELE, WHISTLING VIVALDI 45, at 108-25
407. OGLETREE, at 98-101
408. Discussing the ongoing suspicion of even highly accomplished minorities in a variety of settings
409. Again, this is a chronic situation that all minorities confront.
410. I recall sitting in a law conference that included recent minority law graduates describing how they navigated employment settings.
411. One male sighed as he described his law firm experiences, and exasperatedly stated, "Being a Black male is a full time job!" Massey's study on stereotype threat demonstrated that even privileged minority students have an extra pressure of identity threat working against their academic success.
412. DOUGLAS S. MASSEY ET AL., THE SOURCE OF THE RIVER: THE SOCIAL ORIGINS OF FRESHMAN AT AMERICA'S SELECTIVE COLLEGES AND UNIVERSITIES 10-12 (2002).
413. Patterson 208 (observing that the 2007 Pew Foundation/Brookings Institution study found that the black middle class-the group Sander claims has arrived-is failing to reproduce itself).
414. This means the fragile middle class discussed in Section Two is splintering to the point where its children are not only downwardly mobile, but finding themselves in the bottom of the income distribution.
415. Thus, I believe we are at little risk of creating a trend where privileged middle class black children will game the system at the expense of poor white children.
416. Finding this to be a key factor in maintaining and graduating low SES students).
417. STEELE, WHISTLING VIVALDI 45, at 164-80 (revealing a number of means by which schools can reduce identity threat).
418. Sandra Day O'Connor & Stewart J. Schwab, Affirmative Action in Higher Education over the Next Twenty-five Years: A Need for Study and Action, in THE NEXT TWENTY-FIVE YEARS: AFFIRMATIVE ACTION IN HIGHER EDUCATION IN THE UNITED STATES AND SOUTH AFRICA 58, 58- 62, 71
419. David L. Featherman et al. eds., 2010.