Fisher\u27s Fishing Expedition

This Essay delves into the Supreme Court oral arguments in Fisher v. Texas, which occurred on October 10, 2012. It examines the exchanges between the advocates and Justices, focusing on the meaning of \u27critical mass\u27 and the quest for total race neutrality in UT admissions. It argues that both of these are futile endeavors and unnecessary to decide Fisher. The entire Fisher case is a fishing expedition - albeit one that might reel in race-conscious admissions

Race-Conscious Admissions, Diversity, and Academic Freedom

This Essay examines the First Amendment component to race-conscious admissions policies. It argues that these policies reflect a core First Amendment value: academic freedom. It illustrates that race-conscious admissions policies promote academic freedom in two ways. One aspect of a university’s academic freedom is the selection of its own student body. Justice Felix Frankfurter stated this explicitly in his concurrence in Sweezy v. New Hampshire (1957), which was later cited in Justice Lewis Powell\u27s influential concurrence in Regents of the University of California v. Bakke (1978). Additionally, the compelling interest in diversity has roots in the First Amendment. By facilitating the admission of a more diverse student body, race-conscious admissions policies contribute to the “marketplace of ideas” on campus - thus embodying the values inhering from freedom of speech. The Essay also examines how the marketplace rationale is more availing in the context of student diversity than it is in the production of scholarship

To Be White, Black, or Brown? South Asian Americans and the Race-Color Distinction

People often use race and color terminology interchangeably in common parlance. Within the United States, color terminology often dominates racial discourse due to common use of color-based racial designations such as “Black” and “White.” Color is thus often used as a synonym for race, but while the two do overlap, color is also distinct from race as colorism is from racism. The relationship between race and color is complex: the two are intertwined, and it can be difficult to tease apart. However, one group that illuminates the distinction between the two is South Asian Americans—peoples in the United States whose ancestry derives from the Indian subcontinent. South Asian Americans are a group that does not fit neatly within the dominant racial categories of Black and White and have a racially ambiguous identity within the United States. Because South Asian Americans have been classified in various racial categories and vary significantly in skin tone, their experiences can uniquely relay how race is related to color. Part I of this article examines the relationship between race and color more generally, and asserts that skin color is the primary physical feature associated with race. Part II analyzes the role of skin color in the characterization of South Asian Americans as “White.” Part III considers skin color in relation to the characterization of South Asian Americans as “Black.” Similar to Whiteness, this Part concludes that, while skin color can play a role in characterizations of South Asian Americans as Black, other factors are more significant. Part IV considers other color and race-linked identities attributed to South Asian Americans–including “Brown.” This Part illustrates that, for all of these identities, there are facets that are much more significant than skin color. Finally, the Conclusion discusses implications of the above for understanding race and racism, and also colorism—one of the important aims of the Global Perspectives on Colorism conference

Diversity Within Racial Groups and the Constitutionality of Race Conscious Admissions

This Article offers a novel doctrinal resolution of the key issues in Fisher v. Texas, the impending Supreme Court case which involves race conscious admissions policies at the University of Texas at Austin (UT). The resolution proposed here addresses Justice Anthony Kennedy’s concerns about race conscious policies, but also preserves most of the Court’s 2003 Grutter v. Bollinger ruling, in spite of the fact that Justice Kennedy dissented in Grutter. Substantively, the Article clarifies the key issues in Fisher (the meaning of “critical mass” and the scope of deference that courts give to universities) by focusing on a simple idea that permeates Grutter and Fisher but has not been analyzed in the scholarly literature to date: the significance of diversity within racial groups. It argues that under Grutter, a race conscious policy can aim not only to increase minority representation overall, but also to increase diversity within racial groups. Moreover, the Article contends that diversity within racial groups is key to understanding the constitutionality of race conscious admissions policies for several reasons: 1. Within-group diversity elucidates clearly how a “critical mass” of minority students is different from numerical goals and quotas; 2. Within-group diversity directly reflects the compelling interest in educational diversity at the classroom level that was articulated in Grutter — the breakdown of racial stereotypes and the facilitation of cross-racial understanding through admission of a “critical mass”; 3. A holistic admissions policy that emphasizes within-group diversity reduces the stigmatic harm of race conscious measures; and 4. Attaining diversity within racial groups necessitates a degree of deference to universities in their admissions policies. Nevertheless, after reviewing the basic substantive issues in Fisher, the Article also illustrates how the Fifth Circuit could have been less deferential to UT in its Fisher ruling. It distinguishes between three different categories of deference to universities — implementation of race conscious policies, educational objectives related to racial diversity, and need for race conscious policies — and analyzes the appropriate standard of review for each. The third category, need for race conscious policies, is the issue at play in Fisher, and the Article contends that Justice Kennedy’s view on this issue will be outcome determinative in Fisher. The Article then proposes a different analysis to decide Fisher — the “unique contribution to diversity” test — which focuses on within-group diversity and applies strict scrutiny rather than the “good faith” standard adopted by the Fifth Circuit. These distinctions are directly reflective of the concerns raised in Justice Kennedy’s Grutter dissent. Finally, the Article highlights a key values conflict that Justice Kennedy will face when deciding Fisher: the tension the case presents between diversity in higher education and racial segregation in K-12 schooling

Fisher\u27s Fishing Expedition

This Essay delves into the Supreme Court oral arguments in Fisher v. Texas, which occurred on October 10, 2012. It examines the exchanges between the advocates and Justices, focusing on the meaning of \u27critical mass\u27 and the quest for total race neutrality in UT admissions. It argues that both of these are futile endeavors and unnecessary to decide Fisher. The entire Fisher case is a fishing expedition - albeit one that might reel in race-conscious admissions

Civil Rights in Living Color

This Article will examine how American civil rights law has treated “color” discrimination and differentiated it from “race” discrimination. It is a comprehensive analysis of the changing legal meaning of “color” discrimination throughout American history. The Article will cover views of “color” in the antebellum era, Reconstruction laws, early equal protection cases, the U.S. Census, modern civil rights statutes, and in People v. Bridgeforth—a landmark 2016 ruling by the New York Court of Appeals. First, the Article will lay out the complex relationship between race and color and discuss the phenomenon of colorism—oppression based on skin color—as differentiated from racism. It then will analyze“color” in Reconstruction Era anti-discrimination laws, examining how both “race” and “color” came to be included in these laws. It will illustrate that under early equal protection cases, prohibitions on “race” and “color” discrimination both aimed to curb racism. “Race” and “color” were equally important, but under the Fourteenth Amendment, “color” discrimination never developed any meaning independent of “race” discrimination. The Article will show how “color” began disappearing from equal protection jurisprudence, just as civil rights efforts to address race discrimination became successful. It will then discuss how “color” reemerged in cases involving modern civil rights statutes and how these cases define “color” discrimination differently, focusing on colorism rather than racism. Additionally, color discrimination claims under these statutes have only applied to an individual member of one racial subclass, such as a dark-skinned Black plaintiff. However, in Bridgeforth, the Court of Appeals recognized a multiracial color class, composed of a group of dark-skinned individuals of different races, for equal protection-based Batson challenges to juror exclusion. Bridgeforth was the first case to allow Batson challenges for color discrimination, and the first color discrimination case under any law to recognize a multiracial color class. This Article will consider the potential of multiracial color classes for the future of civil rights law