55 Pages Posted: 13 Oct 2008
Michigan's Proposal 2 and California's Proposition 209 explicitly prohibit their state governments from discriminating or granting "preferential treatment . . . on the basis of race." Proponents of both ballot initiatives specifically employed this language to eliminate state promulgated race-based affirmative action programs. For advocates of Proposal 2 and Proposition 209, affirmative action is the quintessential example of a preference on the basis on race. They reasoned that the policy benefits blacks and Latinos and burdens whites and, in some formulations, Asian Americans.
This Article neither defends affirmative action nor critiques anti-affirmative action initiatives. Instead, we take Proposition 209 and Proposal 2 seriously by engaging in something of a thought experiment: what concretely does it mean to make institutional processes colorblind or race neutral? We believe it particularly productive to explore this question in the context of school admissions policies, where selection procedures have been highly scrutinized and debated. Our more particular focus is on the personal statement, which remains an important but under-examined part of the admission process.
While it is clear that post-affirmative action admissions criteria exclude or omit race from consideration, what that means for evaluating the personal statement is decidedly less than clear. Surprisingly, this issue has received little scholarly attention. Most commentators have focused on the demographic consequences of eliminating race from consideration, and not the mechanisms college and university admissions employ to attempt to purge race from the admissions process. The assumption seems to be that implementing the colorblind imperative of Proposition 209 and Proposal 2 is easy institutional business.
But this is not so. Focusing on the personal statement, we will demonstrate that eliminating race from admissions is far from simple. Indeed, so long as the personal statement is part of the admissions process, it might not even be possible. Nor does prohibiting explicit references to race in the context of admissions make admissions processes race neutral. As we will show, again drawing on the personal statement, formally eliminating race from admissions decision-making installs a new racial preference. The new racial preference is not a preference for a racial category per se. Nor is this preference "on the basis of skin color," which is how opponents of affirmative characterize the policy. The new racial preference gives a priority or advantage to applicants who choose to suppress their racial identity over those who do not so choose. More specifically, this racial preference benefits applicants who (a) view their racial identity as irrelevant or inessential and (b) make no express mention of it in the application process. These applicants are advantaged vis-a-vis applicants for whom race is a fundamental part of their sense of self.
One might think of this preference as a kind of racial viewpoint discrimination - analogous to the viewpoint distinction or preference that the First Amendment prohibits. Race is the "content" and colorblindness and racial consciousness are competing "viewpoints." Just as the government's regulation of speech must be content neutral and cannot be based upon the viewpoint expressed, a university's regulation of admissions should be content neutral and should not burden or prefer applicants based upon the racial viewpoint their personal statements express.
We attribute the new racial preference to, among other things, a set of rhetorical conflations - "colorblindness" with "race neutrality" and "race consciousness" with "racial preference." We expose the false-necessity and contingency of these associations and explain how they obscure the very racial preferences they help to produce. In the context of doing so, we introduce a new racial vocabulary not only for administering admissions but for engaging broader problems of race, law and social policy.
Keywords: Michigan's Proposal 2, California's Proposition 209, law school admissions processes, racial identity, racial preferences
Suggested Citation: Suggested Citation
Carbado, Devon W. and Harris, Cheryl I., The New Racial Preferences. California Law Review, Vol. 96, 2008; UCLA School of Law Research Paper No. 08-32. Available at SSRN: https://ssrn.com/abstract=1282268