Race-conscious Research Articles

Defending Race-Conscious Policy

Beginning in the 1980s, a coalition of community groups, activists, and non-profits loosely referred to as the “environmental justice movement” campaigned to draw awareness to the disproportionate distribution of environmental burdens to low-income communities of color. These burdens cause severely negative health impacts, reduce property values (which in turn reduce generational wealth), and im-pact quality of life. Low-income communities of color also receive few-er environmental benefits, including parks and green space (which re-duces heat in urban areas) and access to healthy food. Climate change further threatens vulnerable communities by causing increased heat in already-overheated neighborhoods, more frequent and severe storms, and rising sea levels in coastal areas. In 2019, New York State enacted the Climate Leadership and Com-munity Protection Act (CLCPA), an ambitious piece of legislation that creates a framework to reduce statewide greenhouse gas emissions and to invest in “disadvantaged communities” (DACs). The latter goal reflects the environmental justice movement’s success. The current set of criteria developed under the CLCPA to identify U.S. census tracts within New York as DACs considers, among a large set of factors, the racial and ethnic demographics of the tracts. While this approach re-flects the environmental justice movement’s values, it also makes the CLCPA vulnerable to a potential constitutional challenge. Drawing on decades of precedent from the U.S. Supreme Court in cases regarding affirmative action programs, a plaintiff might bring a case arguing that the New York State government is distributing benefits based onindividuals’ race or ethnicity, in violation of the Equal Protection Clause. This Note examines the degree to which the CLCPA’s current DAC criteria are vulnerable to such a challenge, and sets forth how the state might argue that the DAC criteria do not violate the Equal Protection Clause. Specifically, this Note argues that the state could mount a strong argument at the outset that such a plaintiff cannot satisfy the requirements for standing. In the alternative, the state could argue that the criteria should not draw strict scrutiny because race and eth-nicity are relatively insignificant factors in a complex and context-sensitive process. If the criteria do draw strict scrutiny, the govern-ment could argue that it has a compelling interest in remedying the ef-fects of its past acts of racial discrimination, and that the criteria are narrowly tailored to this interest. And finally, the government could argue that even if the criteria are unconstitutional for considering race, the issue is severable, and the criteria can be easily amended to remove race and ethnicity.

Race Conscious Affirmative Action by Tax Exempt 501(c)(3) Institutions After Students for Fair Admissions v. Harvard and UNC



Roberts Rules of (Dis)Order: Doctrinal Doublespeak on Affirmative Action and Stare Decisis

In this Article, I argue that Chief Justice John Roberts engaged in doublespeak in his SFFA v. Harvard/UNC majority opinion. He essentially overruled Grutter v. Bollinger (2003) but did not admit doing so, and even structured the SFFA opinion as if he was following Grutter’s precedent. My Article considers why Chief Justice Roberts engaged in this “stealth overruling” of Grutter and exposes his doctrinal sleight of hand in doing so. I first consider how Chief Justice Roberts may have been concerned about the Court’s legitimacy in the wake of its ruling in Dobbs v. Jackson Women’s Health Organization (2022)—where it explicitly overruled Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)—and how that might have influenced his approach to SFFA. Subsequently, I show how throughout the SFFA majority opinion, Chief Justice Roberts either misrepresented Grutter or exploited ambiguities and inconsistencies in Grutter’s doctrine to serve his agenda. I examine the SFFA majority’s treatment of various issues related to the constitutionality of race-conscious admissions policies. These include the compelling interest in diversity, deference to universities on defining their educational missions, the incidental burden of race-conscious policies on certain groups, the use of racial categories, “logical” and arbitrary endpoints for race-conscious admissions, the so-called essay loophole, and the possible military exception. The conclusion considers the consequences of SFFA’s stealth overruling of Grutter: the controversies it could lead to, and its potential impact on the Court’s legitimacy—another matter laden with ironic twists.

Race Preferences at Work: How Supervisory Status, Employment Sector, and Workplace Racial Composition Shape White Americans’ Beliefs About Affirmative Action

ABSTRACT This study examines how white Americans’ beliefs about affirmative action intersect with three important workplace factors: supervisory status (supervisors vs. subordinates), employment sector (public vs. private), and workplace racial composition. Using data from the 1996–2018 General Social Surveys, we first examine trends over time in three beliefs: (1) the perception that whites are hurt by affirmative action, (2) attitudes toward the preferential hiring and promotion of blacks, and (3) opinions regarding special treatment by the government for blacks. We then examine how the three workplace factors shape support for (or opposition to) such race-targeted policies. Our analyses reveal declining opposition to affirmative action over time, though a majority of whites, regardless of authority level, still hold conservative stances on race-targeted policies. Further, results for our three key predictors (supervisory status, employment sector, workplace racial composition) provide support for group position, new governance, and intergroup contact theories, respectively. We conclude by discussing implications of our findings for intergroup relations with special focus on understanding barriers to the implementation of antidiscrimination and diversity policies aimed at ameliorating racial inequities in U.S. workplaces.

The US Supreme Court and Affirmative Action: The Negative Impact on the Physician Workforce

PurposeMaintaining admissions of underrepresented students to medical schools is essential to securing a diverse health care workforce. Empirical evidence indicates that minority patients may prefer practitioners of their own race. The recent US Supreme Court decision concerning affirmative action makes this goal more difficult, but medical schools can still work within the language of the law to redouble their efforts to seat a diverse class of medical students. MethodsWe examined the literature correlating the availability of minority physicians and the health outcomes of the patients they serve. We also examined the literature on race-conscious policies of medical schools intended to address the shortage of minority physicians considering the benefits achieved through a diverse field of health care workers. We also examined the law and the recent US Supreme Court opinion, including the application of equal protection principles, to suggest strategies to seat a diverse class of students within the scope of the law. FindingsInstitutions have maintained the status quo of disparate distributions of professions by race through structural biases that also limit access to medical schools. The new US Supreme Court decision is expected to exacerbate this disparity unless medical schools engage in admissions protocols that actively solicit the character and unique abilities that each of the applicants can offer to contribute to the medical school and the health care profession. ImplicationsThe new US Supreme Court mandate is likely to create challenges for medical schools in their efforts to recruit and seat minority applicants. The mandate provides little discussion, suggesting a lack of understanding of the downstream public health consequences to patients if medical school applicants are denied the benefits of race-conscious admissions policies. Nevertheless, the language of the US Supreme Court's opinion may provide a viable path forward, at least with respect to medical schools where the need for a diverse pool of health care practitioners is particularly compelling.

Racism versus culture: competing interpretations of racial inequality in Canadian public policy

ABSTRACT The paper explores why the provinces of Ontario and Quebec devised contrasting policies in response to similar incidents of urban violence in the mid-2000s. In both settings, municipal police departments launched aggressive campaigns against so-called “youth gangs.” However, Ontario went one step further and created a new “youth policy” to expand out-of-school programs for children and adolescents. By examining the origins of the policies in each province, the paper concludes that Black political actors in Ontario were leading champions of the youth policy, whereas, in Quebec, police chiefs took the driver’s seat and advocated for a disciplinary strategy against “street gangs.” The contrasts in policy and Black political participation exemplify the distinct racial politics of the provinces. Race-conscious policy in Ontario grows out of a tradition of Black radicalism and multi-racial coalitions. In Quebec, minority nationalism turns race into a proxy for clashes over ethnicity and culture.

Doctrinal Instability in Contextual Race-Conscious Review: The Continuing Legacy of the Korematsu Court’s Ultra-Deference Standard

The judicial tools of standards of review are designed to recognize historical inequities by applying heightened burdens of proof for discrimination and the abridgment of constitutional rights. In this Article, I argue that, in the past twenty-seven years since Adarand Constructors v. Peña, the Supreme Court’s contextual application of strict scrutiny for race and national origin discrimination has evolved to a point of instability, rendering its outcomes indeterminate. This instability is a result of our national conflict over when and how to use race to remedy race-based discrimination.The Court has selectively applied different standards of deferenced epending on the reasons that the government uses race. In applying these standards, the Court treats governmental use of race, whether benign or invidious, as two sides of the same problem, when in fact they are distinct legal questions. In other words, the Court treats the use of race as suspect regardless of its remedial application. This universalist approach has been defended as the best method to address and capture the complexity of different contexts. However, the universalist approach at its core, represents two diametrically opposed viewpoints on the role of race in American society.This inconsistency extends back before Adarand to the 1942 Korematsu v. U.S. decision. Since Korematsu, the Court has overwhelmingly given substantial deference—what I refer to as ultra-deference—to government rationales of national security and safety over the interest of civil liberties and civil rights protections for minorities and marginalized groups. Since the September 11, 2001 terrorist attacks, this practice of ultra-deference has become firmly established in regulatory and jurisprudential practices. Most recently, the principles of Korematsu reappeared in the 2018 Trump v. Hawaii decision. Justice Robert’s opinion reflects that, even when presented with clear and convincing evidence of religious and national origin discrimination that should trigger a higher standard of strict scrutiny, ultra-deferential justices are willing to imply a presumption of a rational basis for government justifications.This ultra-deference occurs despite insufficient facts to satisfy the standard threshold for the discharge of the government’s burden of proof when its policy discriminates on the basis of race and national origin. Ultradeference is manifested in the mechanics of when, whether, and how to apply the strict scrutiny standard of review to suspect classifications of race and national origin. Ultra-deference to national security and safety rationales has been most often used in cases involving politically sensitive issues such as immigration. It has been presumed in cases where the Court deemed the national security interest of paramount importance to outweigh evidence of even invidious motivation, let alone disparate impact.While others may argue that a contextual application of strict scrutiny is an appropriate individualized response to the diversity of factual scenario striggering the suspect classification of race, such deference is in direct contrast to the universalist application of strict scrutiny to race-conscious policies regardless of benign, remedial, or invidious purposes. This inconsistency raises the importance of a thorough legal analysis of the role that implicit bias plays when there is clear evidence of disparate impact on the basis of race or national origin.

Next on the Chopping Block: The Litigation Campaign against Race-Conscious Policies Beyond Affirmative Action in University Admissions

Next on the Chopping Block: The Litigation Campaign against Race-Conscious Policies Beyond Affirmative Action in University Admissions

BECOMING A RACE CONSCIOUS LEADER

AbstractThe author notes that “Race Conscious Leadership is your invitation to unravel the racial narratives you didn’t choose, but for which you are now responsible.” She explains that it is “the practice of cultivating an ongoing, nuanced awareness of racial history, racial identity, and racial justice in one’s organizational life.” In a graphic Figure, she presents “The Insight‐Action Axis for Effective Race Conscious Leadership.” This depicts, for instance, in her words “A culture of the past (low in insight, low in action), A culture of learning (high in insight, low in action).” In further definitions, she says that “Cultures of learning are marked by acquiring information, finding stories, and sharing ideas.” Also: “Cultures of the future are environments where race conscious leaders are committed to expanding their insights and engaging in meaningful actions.” She also outlines 10 habits of race conscious leaders. Some are in her words: #1. Race conscious leaders are peacemakers, not peacekeepers. #2. Race conscious leaders make themselves accountable. #3. Race conscious leaders think collectively and individually. #4. Race conscious leaders are relentlessly self‐aware. #5. Race conscious leaders are truth tellers. #6. Race conscious leaders filter their decisions through the lens of equity and justice.

Intermediary Public Policy Organizations and the Discursive Evasion of Systemic Racism and Racialized Violence

The 2020 health pandemic and high-profile police murders of Black people inspired national conversations about racism and police brutality. This study examined how Intermediary Public Policy Organizations (IPPOs) discursively engaged with the racialized nature of the pandemic and the police murder of George Floyd, which have increased awareness of systemic racism in society. Our discursive analysis of IPPO statements published during these events revealed a pattern of humanizing higher education institutions, race evasive policy proposals, and a lack of policy action addressing systemic racism. IPPO evasion of race is consequential because it has the potential to limit the ability of public policy to dismantle systems of oppression and highlights the need for race-conscious policies to support Black, Indigenous, and people of color students and communities.

Theorizing Racist Ableism in Higher Education

Background/Context: Although research on the experiences of multiply-marginalized Black and Brown students with dis/abilities in higher education is limited, this growing body of work indicates that these students navigate racialized perceptions of ability, which impact their experiences on college and university campuses. This research highlights the need for intersectional frameworks that consider students’ multiple identities and the limitations of single-identity–focused frameworks. Purpose/Objective/Research Question/Focus of Study: Centering the counternarratives of 10 Black and Brown undergraduate students with dis/abilities across five college and university campuses, this article uses critical race theory (CRT), disability critical race theory (DisCrit), and racist nativism to develop a conceptual framework of racist ableism. Racist ableism bridges CRT, DisCrit, and racist nativism to describe how particular forms of ableism, informed by racist attitudes and beliefs, oppress and dehumanize Black and Brown people based on actual or perceived (or, inversely, lack of perceived) dis/ability, thereby reinforcing the relationship between whiteness and ability. Research Design: I examined the counternarratives of 10 Black and Brown undergraduate students who identified or have the lived experience of dis/ability. Counternarratives allowed me to center the stories of students. I identify three overarching findings: (1) Black and Brown dis/abled students navigated racialized perceptions of intelligence, productivity, and academic capability; (2) Black and Brown dis/abled students were pathologized as lazy and/or deviant, which minimized or erased their access needs; and (3) Black and Brown dis/abled students resisted racist ableist discourses. Conclusions/Recommendations: The counternarratives of students reveal how racialized perceptions of ability shaped their experiences interacting with staff and their ability to access institutional supports such as accommodations. They also reveal the critical raced-disabled epistemologies of Black and Brown students who identify or have been labeled as dis/abled. Their counternarratives highlight the need for: (1) intersectional frameworks that account for the ways in which racism and ableism are interconnected, and (2) race-conscious policies and practices that consider their multidimensional identities.

A Community Divided: The Ho Lawsuit and Chinese San Franciscans’ Search for Education Equality and Racial Inclusion

Abstract The Brian Ho lawsuit in the 1990s, brought about by several school children of Chinese descent in the San Francisco United School District against the school district, state defendants, and the San Francisco NAACP, signified a shift in the understanding of education equality that spotlighted divergent views, motivations, and actions concerning race-conscious education policies among Chinese San Franciscans. This article examines the intra-community dynamics and conflicts in Chinese San Franciscans’ pursuit of education rights and racial equality in the 1980s and 1990s by reconstructing their various claims to education equality. These divergent yet analogous struggles for equal educational opportunities reflected varied racial attitudes and conceptions of Chinese American racial identity. What these disparate racial perceptions and identity conceptions embodied fundamentally was a range of arguments for racial inclusion and equality. The contrast and contradictions between these distinct views persisted, reemerging in Chinese Americans’ continued apprehension of their racial identity in the wake of the renewed debate about race-based education policies that was juxtaposed with the rising racial hatred toward Asian Americans during the COVID-19 pandemic.

Race, mental health, and evictions filings in Memphis, TN, USA

Although evictions are a major disruptor of residential stability, their contribution to health disparities is understudied. Both experiencing eviction and the threat of being evicted are associated with adverse physical and mental health outcomes. Communities with higher proportions of Black people have higher rates of eviction filings. Market characteristics alone are insufficient for explaining the clustering of eviction in neighborhoods of color. Memphis is the fastest-growing rental market in the United States, facing an eviction crisis and is rife with persistent racial health disparities. This study explored the relationship between eviction filings, mental health, and neighborhood racial composition in Memphis to inform local policy approaches. We combined health from the City Health Dashboard, 2019 American Community Survey 5-year estimates, and eviction filings from the Shelby County, TN General Sessions Civil Court. Multivariate regression models were used to examine the relationship between health outcomes and eviction filing rates while controlling other relevant neighborhood characteristics. Separate models were run based on neighborhood racial composition. Poor mental health was significantly associated with higher eviction filling rates in majority Black neighborhoods but not in majority white and racially mixed neighborhoods. These findings point to evictions as an important contributor to racial health inequities in Memphis and the importance of race-conscious policy interventions that address the dual crisis of evictions and racial health disparities.

Race Conscious Independent Redistricting Commissions: Protecting Racial Minorities’ Political Power Through Rules-Based Map Drawing

Race Conscious Independent Redistricting Commissions: Protecting Racial Minorities’ Political Power Through Rules-Based Map Drawing

Coronavirus Vaccine Distribution: Moving to a Race Conscious Approach for a Racially Disparate Problem.

Strikingly ignoring the critical impact of systemic racism in vulnerabilities to the deadly coronavirus, phase one of the vaccine rollout is not reaching the Black population that has suffered the most from COVID. An urgent need exists for a race-conscious approach that ensures equitable opportunities to both access and receive the vaccines.

The Search for Racially Diverse Schools: Understanding How a Diverse State Lacks Diverse Campuses

The purpose of this research is to examine the prevalence of racially diverse high schools in order to understand the conditions that create or inhibit the existence of diverse and equitable schools. We analyzed Texas state demographic data for schools in order to understand the scarcity of racially diverse campuses. We then utilized mapping and Critical Race Spatial Analysis (CRSA) to better understand the context, geography, and history that creates or eliminates space for diverse high schools. This work highlights the need for race-conscious policies around attendance, zoning, and choice programs that promote diversity and equitable practices.

Claiming Martin Luther King, Jr. for the right: The Martin Luther King Day holiday in the Reagan era

The article traces how American conservatives laid claim to the memory of Martin Luther King, Jr. We focus on a key moment in that process, when Republicans in the early 1980s battled other Republicans to establish King’s birthday as a federal holiday and thereby distinguish a conservative position on racial inequality from that associated with southern opposition to civil rights. The victory was consequential, aiding the New Right’s efforts to roll back gains on affirmative action and other race-conscious policies. We use the case to explore the conditions in which political actors are able to lay claim to venerated historical figures who actually had very different beliefs and commitments. The prior popularization of the figure makes it politically advantageous to identify with his or her legacy but also makes it possible to do so credibly. As they are popularized, the figure’s beliefs are made general, abstract, and often vague in a way that lends them to appropriation by those on the other side of partisan lines. Such appropriation is further aided by access to a communicative infrastructure of foundations, think tanks, and media outlets that allows political actors to secure an audience for their reinterpretation of the past.

Harlan's Dissent: Citizenship, Education, and the Color-Conscious Constitution

In his dissent in Plessy v. Ferguson, Justice John Marshall Harlan wrote, “Our constitution is color-blind, and neither knows nor tolerates classes among citizens.” Racial conservatives have argued that Harlan’s dissent should invalidate policies that partially redress the historical injuries inflicted on African Americans. This article contends that the concept of colorblindness misstates Harlan’s central claim. His dissent insisted black Americans are entitled to the full fruits of citizenship. This rearticulation reveals that race-conscious policies, particularly within public education, fulfill, rather than undermine, Harlan’s primary objective of defending black citizenship. The article shows that racial conservatives’ colorblind ideology emerged as a strategic response to their legal defeats over segregated schools and to attack affirmative action. The Supreme Court’s later use of colorblind principles is contrasted with empirical evidence of the efficacy of color-conscious pedagogies within schools. The recent Gary B. v. Whitmer case highlights the linkages between full citizenship and race-conscious pedagogies.

To be or not to be? Material incentives and indigenous identification in Latin America

ABSTRACT Latin American governments have recently implemented race conscious policies to provide resources to stigmatized groups like indigenous people. Nevertheless, critics have questioned the legitimacy of these policies and argued that they could artificially induce indigenous identification. Such claim, however, has never been tested. We use a causal inference approach based on nationally-representative survey experiments applied door-to-door in Mexico and Peru to examine whether material incentives can indeed encourage indigenous identification. Our results are counterintuitive. Reminding respondents of potential material benefits of indigenous identification does not increase such identification. It reduces it. We theorize this negative effect may be driven by the fact that receiving social benefits is stigmatized. Our findings call into question critics’ concerns that ethnic-based redistributive policies necessarily incentivize ethnic identification. These results not only provide compelling evidence of the social construction of ethnic identities, but they also seemingly challenge purely instrumentalist models of ethnic identification.

The decentralization of race: tracing the dilution of racial equity in educational policy

This article examines California’s Student Equity Policy crafted by policymakers to “avoid an underclass of ethnic minorities” in higher education. We combine tenets from critical race theory, interest convergence, and color-evasiveness to qualitatively interrogate 17 policy documents including chaptered bills, legislative mandates, and implementation guidelines related to the reform effort. We highlight how revisions to the reform deliberately inoculated a race-conscious policy into an effort targeting all students. Over the policy’s 25-year history, we found that policymakers continuously diluted the role of race and opportunities to address racial disparities in legislative mandates. Implications for this research emphasize the significant role of policymakers in crafting legislation that explicitly draws attention to inequities faced by racially minoritized students in higher education. It considers practitioners’ ability to implement these policies in ways that can improve racial equity. We conclude by sharing recommendations for scholars seeking critical approaches to understand how racially minoritized students benefit, or not, from equity initiatives crafted by policymakers.