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Excerpted from: Osamudia R. James, White like Me: The Negative Impact of the Diversity Rationale on White Identity Formation, 89 New York University Law Review 425 (May, 2014).(Footnotes) (Full Article)


Osamudia JamesIn an interview about her decision to challenge the University of Texas's (UT) consideration of applicant diversity in its admissions process, Abigail Fisher explained that she was ‘devastated‘ by her own rejection from the institution ‘I had dreamt of going to UT since the second grade. ‘ Although the university insisted that Fisher's application would not have merited admission even if the University did not consider race among some of its applications, Fisher was certain that the sole attribute distinguishing her from her peers of color who were accepted was their skin. Reflecting on the potential outcome of her case, Fisher said she ‘hop[[ed] that [the Supreme Court would] take race out of the issue in terms of admissions and that everyone will be able to get into any school that they want no matter what race they are but solely based on their merit and if they work hard for it.‘

Fisher insisted that she was cheated out of a seat. She felt that she had done all the work she considered necessary to gain admission to UT. She seemed certain that, unlike the minority student she assumed had taken her place, she genuinely deserved admission, not having benefited from any unearned advantage or privilege in her own life. She seemed never to have considered that her skin color likely ensured a childhood filled with positive representations of people of her own race, a benefit that has been sho She even seemed unaware that the very things she identified as examples of her hard work also demonstrated privilege bestowed on her through no effort of her own. wn to aid children's psychological and emotional development; that subjective assessments made of her intellectual or emotional capacities in school were likely interpreted in ways that enhanced, rather than undermined, her intellectual development; or that skin color likely aided her family's financial stability. instance, Fisher was able to participate in extracurricular activities because her family's financial stability likely freed her from the necessity of an afterschool job; she could become a cellist because she had free time for instruction, possibly paid for by her parents; and she could enroll in AP classes because, even though many schools throughout the United States do not offer such courses, the one that she attended did.

Instead, Fisher seemed confident that somebody was erroneously granted the spot in UT's entering class that belonged to her. Moreover, to the extent that evaluation of that interloper's application included consideration of racial or ethnic heritage, he or she was admitted unfairly. In media interviews, Fisher presented herself as an innocent victim: Some undeserving nonwhite applicant had stolen her seat.

Moreover, Fisher's statements to the media demonstrated neither understanding of why a person of color's academic excellence might convey character or perseverance lacking from her own admission profile, nor insight into the larger societal structures and social phenomena that would justify a university's choice to consider race when assembling an entering class. To quote Peggy McIntosh's insightful recollection of her own racial education, Fisher was taught to see racism ‘only in individual acts of meanness . . ., never in invisible systems conferring . . . dominance on [her] group from birth.‘ UT offers the product of elite education and, according to Fisher, race and ethnicity should play no part in decisions about how to distribute that commodity.

Even assuming, for argument's sake, a problem with the consideration of race in college and university admissions, Fisher's sense of entitlement to admission at a flagship state university that receives thousands of applications every year might be considered unreasonable. Yet her reaction to her rejection from UT is not surprising. Although characterizations of affirmative action as ‘reverse discrimination‘ have intensified in recent years, even the earliest legal challenges to affirmative action policies demonstrated entitled thinking like Fisher's: If an unqualified nonwhite person had not been unjustly awarded my spot, I surely would have successfully claimed what was rightfully mine.

I argue that this kind of entitled thinking demonstrates a particular, antiprogressive form of white identity development and performance. While identity often refers to a ‘person's interior sense of self[,] . . . when the context is law and the subject is race . . . the term typically refers to a social relationship, an ‘identification with,’ a role the person is seen to play in society.‘ Thus, racial identity is also performed: Maintaining an identity requires performances corresponding to symbolic representations evocative of a particular racial or ethnic identity. Identity performance, however, need not always be conscious. The white identity to which I refer above entails the phenomenon of ‘transparency‘ naïveté about one's whiteness and its attendant privileges accompanied by an understanding of race as something that happens to other people a perception of Whites as innocent victims in an unfair system that awards handouts to undeserving non-Whites. It also entails a belief that achievement-- academic and otherwise--is solely the product of individual work and perseverance and is not also influenced by societal power structures informed by race and ethnicity.

Racial diversity in educational settings imparts important civic and attitudinal lessons that undermine problematic white racial identity performance and enable us to sustain a healthier and more successful democracy. The diversity rationale--the defense of affirmative action policies based on a compelling interest in diversity--thus justifies the use of race-conscious policies in pursuit of this worthy goal. What if, however, this legal doctrine, invoked to promote a more vital democracy, ultimately undermines that mission by stunting the formation of antiracist white identity? The plaintiffs in Fisher v. University of Texas at Austin did not explicitly ask the Supreme Court to reject the diversity rationale, the legal basis for UT's ability to consider race during its admissions process. Nonetheless, the diversity rationale may be responsible for perpetuating the exact type of white identity performance that inspires such lawsuits and may ultimately undermine the rationale itself.

Substantial literature exists on the impact of law and legal doctrine on racial identity. Indeed, critical legal scholars have examined the impact--both positive and negative--of jurisprudential framing of affirmative action on people of color. What demands further consideration is how this same affirmative action jurisprudence impacts Whites. Other than assertions that affirmative action spurs balkanization or suspicion, critical scholarship considering how this doctrine impacts white identity development and performance has been scarce. Instead of considering how diversity impacts people of color, or whether diversity benefits white people, this Article asks whether the diversity rationale is bad for white people by undermining the development of antiracist white identity.

Of course, one could ask this same question as it pertains to various strands of equal protection jurisprudence, much of which has resulted in formal, but not substantive, equality. This Article considers the question as applied to the diversity rationale, one of the most widely recognized and commonly invoked justifications for the use of race-conscious measures. Given the Supreme Court's recent reaffirmation of the diversity rationale in Fisher, educational institutions will likely continue to invoke diversity as they craft admissions policies.

Furthermore, despite the Supreme Court's current resistance--beyond instances of intentional discrimination--to remedial measures aimed at addressing past and present racial injustices, conscious and unconscious racism persists. More substantive justifications for the use of race in nonremedial contexts should be considered, if only to deepen national dialogue about racism and discrimination in the United States. Accordingly, it is important to examine how institutions of higher education deploy the diversity rationale and how the diversity rationale perpetuates racial subordination through racist white identity, while considering whether it can be utilized in ways that advance, rather than retard, racial justice. Ultimately, this Article asks: How can we promote diversity in ways that are not subordinating, but empowering?

In an effort to answer this question, this Article proceeds in three parts.

Part I presents the diversity rationale, discussing the genuine importance of racial diversity, explaining how the diversity rationale has successfully expanded access to higher education, and exploring criticisms to which the diversity rationale has been subjected.

Part II contemplates how the diversity rationale, as constructed by the Supreme Court, may influence individual identity formation. This Part considers how the Court's affirmative action jurisprudence inspires and perpetuates a destructive form of white ‘identity performance‘ that is itself counterproductive to the cause of racial justice.

Part III offers preliminary thoughts about how the diversity rationale might be remediated and deployed in ways that encourage the development of antiracist white identities, while preserving a commitment to the compelling goal of racial inclusion in our national institutions.