Breaking Free of Chevron's Constraints: Zuni Public School District No. 89 v. U.S. Department of Education

This is the published version

White Like Me: The Negative Impact of the Diversity Rationale on White Identity Formation

In several cases addressing the constitutionality of affirmative action admissions policies, the Supreme Court has recognized a compelling state interest in schools with diverse student populations. According to the Court and affirmative action proponents, the pursuit of diversity does not only benefit minority students who gain expanded access to elite institutions through affirmative action. Rather, diversity also benefits white students who grow through encounters with minority students, it contributes to social and intellectual life on campus, and it serves society at large by aiding the development of citizens equipped for employment and citizenship in an increasingly diverse country. Recent scholarship has nevertheless thoughtfully examined the negative effect of the diversity rationale -the defense of affirmative action policies based on a compelling interest in diversity-on minority identity when that identity is traded on by majority-white institutions seeking to maximize the social and economic benefits that diversity brings. By contrast, little has been said about whether and how the diversity rationale impacts white identity. Consideration of how the diversity rationale influences white identity formation is particularly timely in light of the Supreme Court\u27s most recent pronouncement on affirmative action in Fisher v. University of Texas at Austin. This Article begins to fill that gap, ultimately concluding that the diversity rationale reaffirms notions of racial superiority among Whites. Unlike the jurisprudence of seminal civil rights cases, such as Brown v. Board of Education, that rejected old narratives about the legitimacy of subordinating Blacks, the diversity rationale does not promote progressive thinking about race and identity. Rather, it perpetuates an old story-a story about using black and brown bodies for white purposes on white terms, a story about the expendability of those bodies once they are no longer needed. Moreover, by reinforcing the transparency and innocence of white racial identity, as well as by emphasizing hyperindividualism, the diversity rationale stunts the development of antiracist white identity. By cultivating white identities grounded in a sense of entitlement and victimhood relative to people of color, the diversity rationale, ironically, perpetuates the subordination of people of color by prompting the elimination of affirmative action programs. It also distracts Whites from addressing the ways in which their own presence at elite institutions of higher education is genuinely undermined, especially in the case of working-class Whites who are consistently underrepresented at such institutions. Given this reality, institutions of higher education committed to diversity must account for the diversity rationale\u27s effect on Whites through more honest and substantive explanations of the value placed on diversity in admissions

Identity: Obstacles and Openings

Progress regarding equality and social identities has moved in a bipolar fashion: popular engagement with the concept of social identities has increased even as courts have signaled decreasing interest in engaging identity. Maintaining and deepening the liberatory potential of identity, particularly in legal and policymaking spheres, will require understanding trends in judicial hostility toward identity politics, the impact of status hierarchy even within minoritized identity groups, and the threat that white racial grievance poses to identitarian claims

Identity: Obstacles and Openings

Progress regarding equality and social identities has moved in a bipolar fashion: popular engagement with the concept of social identities has increased even as courts have signaled decreasing interest in engaging identity. Maintaining and deepening the liberatory potential of identity, particularly in legal and policymaking spheres, will require understanding trends in judicial hostility toward identity politics, the impact of status hierarchy even within minoritized identity groups, and the threat that white racial grievance poses to identitarian claims

Opt-Out Education: School Choice as Racial Subordination

Despite failure to improve academic outcomes or close the achievement gap, school-choice policies, advanced by education legislation and doctrine, have come to dominate public discourse on public education reform in the United States, with students of color disproportionately enrolling in voucher programs and charter schools. This Article moves past the typical market-based critiques of school choice to analyze the particularly racialized constraints on choice for marginalized students and their families in the public school system. The Article unpacks the blame-placing that occurs when the individualism and independence that school choice and choice rhetoric promote fail to improve academic outcomes, and the ways in which choice merely masks racial subordination and the abdication of democratic values in the school system. Students of color and their families may be opting out, but their decisions to do so neither improve public education nor reflect genuine choice. This Article ultimately argues that the values underlining school choice and choice rhetoic-like privacy, competition, independence, and liberty-are inherently incompatible with the public school system. The Article concludes by suggesting an alternate legal and rhetorical framework acknowledging the vulnerability of minority students, as well as the interdependence between white students and nonwhite students in the system, and it advances strict limitations on school choice, even, if necessary, in the form of compulsory universal public school education