The Volokh Conspiracy
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Justice Sotomayor and the Manipulation of "Race"
Justice Sotomayor decides who is a person of color based on whether it supports her views regarding structural racism.
As I've noted before, Justice Sotomayor likes to play fast and loose with statistics regarding race in the United States. In particular, she decides which groups she describes as relevant "racial minorities" based on whether it suits her political agenda.
To wit, along with African Americans she designates Latino Americans as a racial group. It's true that many Americans perceive Latinos to be a racial minority. But it's also true that historically speaking the US government classified the vast majority of Latinos as white, Latinos are a multiracial group of mostly European origin, about half of Latinos identify as white, and most importantly in terms of legal analysis, Latinos have been classified in American law as a minority ethnic group, people of "Spanish culture or origin, regardless of race" since 1978. Meanwhile, when inconvenient (which is almost always), she ignores Asian Americans, who have, with the occasional exception of South Asians, been legally treated as a racial minority since the 1850s. (The other two official minority groups, Native Americans and Native Hawaiians/Pacific Islanders, make up less than one percent of the US population.) Say what you will regarding whether Hispanics/Latinos should be considered a race or "people of color" but it's hard to see how such monikers would apply to them but not to Asian Americans.
Justice Sotomayor continues her pattern in SFSA, even though Harvard and UNC both follow US law in treating Asian American as a racial classification and Hispanic as an ethnic one that emphatically includes Hispanics who self-identify as white, including, explicitly, people whose ancestors immigrated from Spain to the US. Indeed, Sotomayor explicitly designates "Latinos" as a racial group (e.g., footnote 18, while ignoring that not all Hispanics are Latinos), and largely either ignores Asian Americans, or lumps them together as whites.
She accomplishes this be focusing on the classification of "underrepresented minorities." This classification not only has no legal basis, it is something of a tautology. In any country with multiple minority groups, some of them will be "underrepresented."
Indeed, in the US within every major official racial and ethnic classification, some subgroups are "underrepresented" and some "overrepresented." Nigerian Americans, for example, are "overrepresented," even though black Americans as whole are "under-represented." Hmong Americans are "underrepresented," though Asian Americans a whole are "over-represented." A 2012 study of the ten largest Latino subgroups found that while 32% of Colombian Americans had a college degree, only 7% percent of Salvadoran Americans did. Sotomayor acknowledges none of this, treating each of the official classifications as homogenous.
The varying levels of success within each classification, if acknowledged, would create serious problems for Sotomayor's reductionism. So she almost entirely ignores it. (Towards the end of the opinion, she does note that "'the Asian American community is not a monolith," and that, despite the lack of evidence that his actually occurs, that "race-conscious holistic admissions allow colleges and universities to consider the vast differences within [that] community.'" But she entirely ignores intra-group differences when discussing "racial" statistics earlier in the opinion).
Let's go to the opinion:
After more than a century of government policies enforcing racial segregation by law, society remains highly segregated. About half of all Latino and Black students attend a racially homogeneous school with at least 75% minority student enrollment.
First, as I've noted, Latinos are not a "racial" group, and in most of the United States were never segregated by law. As a multiracial group, they do not attend "racially homogenous" schools, and because they are around twenty percent of the population with a high percentage of Spanish-speaking immigrants, one would expect them to cluster, as other large immigrant groups have done historically, in ethnic enclaves where others share their language and background. I'm sure some of the concentration of Latinos in particular schools is due to discrimination, as opposed to the perceived advantages of living in proximity to other Latinos, but how much? It doesn't occur to Sotomayor to raise the question.
Students of color, particularly Black students, are disproportionately disciplined or suspended, interrupting their academic progress and increasing their risk of involvement with the criminal justice system.
In fact, Asian American students have less than 1/3 the rate of of school discipline than whites do. But once more Sotomayor simply conflates "of color" with being "underrepresented."
Moreover, underrepresented minority students are more likely to live in poverty and attend schools with a high concentration of poverty.
Again, this is a tautology. If you define minority groups as those who are "under-represented," ie, do less well than average socioeconomically, of course you are going to find that they… do less well than average socioeconomically.
It is thus unsurprising that there are achievement gaps along racial lines, even after controlling for income differences.
Asian Americans have dropped out of the analysis. Asian Americans "have an achievement gap along racial lines," but it's in their favor, especially in math. 43% of students scoring over 700 on the math SAT are Asian American, about six times their representation in the overall population.
Both the Asian American and Hispanic populations are composed primarily of post-1965 immigrants and their descendants. Given Sotomayor's assumption of structural racism harming non-whites, does she have any theory beyond inchoate structural racism regarding why Asian Americans overall are ORMs (overrepresented minorities)? If so, she doesn't express it, instead simply excluding Asian Americans from her analysis when convenient.
After reviewing claims of systematic discrimination in education against URMs, in which she entirely conflates African Americans and Hispanics, she adds, "Given the central role that education plays in breaking the cycle of racial inequality, these structural barriers reinforce other forms of inequality in communities of color." Once again, Asian Americans have been excluded from being a "community of color."
Racial inequality runs deep to this very day. That is particularly true in education…
Asian Americans, defined by law as a racial group, do better in the education realm than Latinos, a multiracial ethnic group do. Only by entirely ignoring Asian Americans can Sotomayor make such blanket statements.
Given the central role that education plays in breaking the cycle of racial inequality, these structural barriers reinforce other forms of inequality in communities of color.
The footnotes she cites in support discuss either African Americans alone, or African Americans and Latinos. Noticing a pattern? Latinos count, Asian Americans don't.
[University of North Carolina] excluded all people of color from its faculty and student body…
This is sloppy, and just false. During the Jim Crow era, UNC excluded African Americans. It admitted Cherokee and Asian Americans, and there was no legal category of "Hispanic" to exclude, as Hispanics were generally considered to be white, especially outside the southwest. UNC's Jim Crow laws only applied to black people. UNC's first Asian American student studied there in 1893.
To this day, UNC's deep-seated legacy of racial subjugation continues to manifest itself in student life…. Plus, the student body remains predominantly white: approximately 72% of UNC students identify as white, while only 8% identify as Black.
Despite including Hispanics in her statistics until now, Justice Sotomayor curiously neglects to note that Hispanics are slightly "overrepresented" compared to state population, at 10%. And of course she once again neglects Asian Americans, who are 13% of UNC's students despite being only 3% of the state population. [UPDATE: North Carolina is 70% white, so whites are "overrepresented" at UNC by a whopping 2% of the population.]
Justice Sotomayor does get around to addressing Asian Americans later in the opinion: Citing no evidence, JUSTICE THOMAS also suggests that race-conscious admissions programs discriminate against Asian American students.
Hold on. Putting aside the issue of Harvard's discrimination in personality scores against Asian American applicants, and the voluminous evidence that admissions consultants advise Asian Americans to hide their identity to avoid discrimination, Justice Sotomayor is concerned about "underrepresented" minorities getting a boost in admissions. Asian Americans are substantially "overrepresented." It seems implausible that one could boost the enrollment of the "underrepresented" without lowering the enrollment of the "overrepresented." Admissions is a zero-sum game. Does Justice Sotomayor not understand how zero-sum games work?
Apparently not. Citing some dubious statistics, including the fact that Asian American enrollment has risen at universities (not as fast, however, as the Asian American population), she concludes, in what I can only conclude is gaslighting, that "race conscious admissions benefit all students, including racial minorities. That includes the Asian American community."
